2Route Map Purpose of the Act Structure What’s in force Protected characteristicsProhibited conductEquality of termsPositive actionPublic Sector EqualityPre-employment health checksPay secrecyExtension of ET powers
3Purpose of the Act (1)Note the ambition of the Act, as evidenced by the pre-amble“An Act- to make provision to require Ministers of the Crown & others when making strategic decisions about the exercise of their functions to have regard to the desirability of reducing socio-economic inequalities;- to reform & harmonise equality law and restate the greater part of the enactments relating to discrimination and harassment related to certain personal characteristics;- to enable certain employers to be required to publish information about the differences in pay between male and female employees;- to prohibit victimisation in certain circumstances;- to require the exercise of certain functions to be with regard to the need to eliminate discrimination and other prohibited conduct;- to enable duties to be imposed in relation to the exercise of public procurement functions;- to increase equality of opportunity;- to amend the law relating to rights and responsibilities in family relationships; and for connected persons.”
4Purpose of the Act (2)Thus, the Act draws together and attempts to harmonise equality lawsBUT alsoCreates new obligations relating to the discharge of functions within the public sectorAmends & reforms the law in various areas.
5Purpose the Act (3)Some of the provisions will be brought into force very soonSome are still under discussionSome are likely to be binned if the Conservatives get their way (e.g. publicising male/female pay rates)
7What is harmonised/implemented Council Directives2000/43/EC (equal treatment race)2000/78/EC (equal treatment employment)2004/113/EU (equal treatment goods & services)2006/54/EC (equal opportunities for men and women)
8What to watch out for 16 Parts 28 Schedules Scope for the introduction of 30 sets of regulationsScope for further guidance & Codes (but current Codes remain in force until revoked – see Section 42)
9Where to find out more Explanatory notes – all 1,000+paragraphs Law Society Guide to the Equality Act
10StructurePart 1 – imposes duty on public bodies to take account of socio-economic factorsPart 2 & Sch 1– key concepts (i.e. sex, race, age, religion, disability etc…)Part 5 & Sch 6-9– discrimination in the context of work & employmentPart 8 – ancillary forms of prohibited conduct, including accessory liabilityPart 9 & Sch 17– EnforcementPart 10 Renders void/unenforceable contractual terms which result in discrimination etc…Part 11 & Sch 18 & 19 – general duty on public authorities to advance equalityPart 16 & Sch – confers on minister power to harmonise with EU law, make subordinate legislation
111st October 2010 The first wave of implementation Essentials of discrimination – direct & indirect; victimisation; harassmentBUT NOT provisions relating toSocio-economic duty, dual discrimination, publication of pay data & positive action in recruitment
12How it works (broadly)Sections create substantive obligations on employers and others not to discriminateSections describe what is meant by the concept of discrimination (“prohibited conduct”)Sections 1-12 explain what sorts of characteristics fall within the scope of discrimination (“protected characteristics”) such as sex, race, etc…
13Protected Characteristics AgeDisabilityGender ReassignmentMarriage & Civil PartnershipPregnancy and MaternityRaceReligion or BeliefSexSexual Orientation
14Marriage & Civil P/ship Pregnancy and Maternity DisabilityGender ReassignmentRaceReligion or beliefSexSexual OrientationMarriage & Civil P/shipPregnancy and MaternityDirectAssociativeNewPerceivedIndirectHarassmentChangesHarassment 3rd PartyVictimisation
15Age No change to definitions Only characteristic where can justify directNew: AssociativeNew: Harassment by 3rd PartyDefault retirement age of 65Changes to harassmentChanges to victimisation
16Disability (1) New definition: s.6(1): Removal of affected capacities “A person (P) has a disability if –P has a physical or mental impairment, andThe impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day to day activities”Removal of affected capacities
17Disability (2) New protection: “arising from disability” – s.15 Must know or be expected to know disabledOnly justifiable if proportionate means of achieving a legitimate aim
18Disability (3) New: Indirect discrimination Evidential issues: different types/degrees of impairmentDisability related discrimination recastEffects of L.B. Lewisham -v- Malcolm reversed
19Disability (4) New: Associative New: Perceptive New: Harassment by 3rd PartyPre-employment health questions (below)Changes to harassmentChanges to victimisation
20Gender Reassignment New definition: no need for medical supervision No protection for cross-dressersACAS: Hormone treatment – treat as if ill !New: AssociativeNew: PerceptiveNew: IndirectNew: Harassment by 3rd PartyChanges to harassmentChanges to victimisation
21Marriage & Civil Partnership No change to definitionsNot covered: AssociativePerceptionHarassmentHarassment by 3rd partyChanges to victimisationNot included in combined discrimination
22Pregnancy or Maternity No change to definitionsNo sex during pregnancy or maternity ! Ss.17(6) and 18(7)No a/c of pregnancy illness in recruitmentChanges to victimisationNot included in combined discrimination
23Race‘Twin track’ anomalies to go: ‘race’ includes colour, nationality and ethnic or national origins.Power to amend to include “caste”Racial group can be 2 or more racial groups (Black Briton)Changes to harassmentChanges to victimisation
24Religion or Belief No change to definitions Religion includes any religion or lack of religionPhilosophies or lack ofApplies even if same religionMust have clear structure and belief systemChanges to harassmentChanges to victimisation
25Sex No change to definitions New: Associative New: Perception Changes to victimisation
26Sexual Orientation No changes to definitions New: Harassment by 3rd PartyChanges to harassmentChanges to victimisation
28Prohibited Conduct (2) Direct Discrimination Central definition Section 13(1)“A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”New wordingDoes not require B actually to have the protected characteristicHence, opens up associative discrimination i.e. where A treats B less favourably on the ground of C’s protected characteristic (Coleman v Attridge Law  IRLR 722).And, there is discrimination if A treats B less favourably because of a wrongly held belief that B possesses a protected characteristic (English v Thomas Sanderson Blinds  IRLR 206
29Prohibited Conduct (3) Direct Discrimination Case Specific Provisions Section 13(2)-(6) create special rules relating to specific protected characteristicsAge – incorporates objective justification as part of definition of direct discriminationDisability – where victim is not disabled, excludes more favourable treatment of a disabled person (actual or hypothetical)Marriage etc.. – only prohibited conduct if the treatment is because B is married etc..Race – expressly includes within less favourable treatment segregation of B from othersSex – where victim is a man, excludes from consideration special treatment given to a woman on account of pregnancy/childbirth
30Direct Discrimination - Examples If a Muslim shopkeeper refuses to serve a Muslim woman because she is married to a Christian, this would be direct religious or belief-related discrimination on the basis of her association with her husband.If an employer rejects a job application form from a white man who he wrongly thinks is black, because the applicant has an African-sounding name, this would constitute direct race discrimination based on the employer’s mistaken perception.If the manager of a nightclub is disciplined for refusing to carry out an instruction to exclude older customers from the club, this would be direct age discrimination against the manager unless the instruction could be justified.
31Disability Discrimination Section 15 adds to the central definitionsA discriminates against B if he treats B unfavourably because of something arising in consequence of B’s disability which A cannot objectively justifyReverses the decision in Lewisham LBC v Malcolm  1 AC 1399For example, refusing to employ a slow typist whose lack of speed results from a disability would be discrimination (subject to existence of an objective justification)BUT does not apply if A did not and could not reasonably have known that B “had the disability” (so one part of Malcolm survives)
32Disability Discrimination (2) ExamplesAn employee with a visual impairment is dismissed because he cannot do as much work as a non-disabled colleague. If the employer sought to justify the dismissal, he would need to show that it was a proportionate means of achieving a legitimate aim.The licensee of a pub refuses to serve a person who has cerebral palsy because she believes that he is drunk as he has slurred speech. However, the slurred speech is a consequence of his impairment. If the licensee is able to show that she did not know, and could not reasonably have been expected to know, that the customer was disabled, she has not subjected him to discrimination arising from his disability.However, in the example above, if a reasonable person would have known that the behaviour was due to a disability, the licensee would have subjected the customer to discrimination arising from his disability, unless she could show that ejecting him was a proportionate means of achieving a legitimate aim.
33Indirect Discrimination (1) Central definition (Section 19)“A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory to a relevant protected characteristic of B’s”
34Indirect Discrimination (2) A PCP is “Discriminatory” under (Section 19(2)) if, in relation to a relevant protected characteristicA applies, or would apply, it to persons with whom B does not share the characteristic;It puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share itIt puts, or would put, B at that disadvantage; andA cannot show it to be a proportionate means of achieving a legitimate aim.
35Indirect Discrimination (3) This, therefore, applies indirect discrimination for the first time to disability discrimination and to gender re-assignmentTest of objective justification is familiar.Government rejected the possibility of using Euro-speak “appropriate & necessary” because it might lead to tight interpretation
36Duty to Make Reasonable Adjustments (1) Section 21A person discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustmentsSection 20If a person is under a duty to make reasonable adjustments, then that duty comprises 3 requirementsSection 39(5)The duty to make reasonable adjustments applies to an employerSchedule 8Contains a limitation on the duty. Employer is not subject to the duty where he does not and did not know of the disability and the likelihood of disadvantage
37Duty to Make Reasonable Adjustments (2) If (1) a PCP or (2) a physical feature places a disabled person at a a substantial disadvantage compared to someone who is not disabled, then a duty to take such steps as it is reasonable to have to take to avoid the disadvantageMore or less as under old law
38Duty to Make Reasonable Adjustments (3) 3rd requirement of the duty is new- Where a disabled person would, but for the provision of an auxiliary aid, be at a substantial disadvantage compared with persons who are not disabled, a duty to take such steps as is reasonable to have to take to provide the auxiliary aidNB – the cost cannot be passed back to the disabled person (Section 20(7))
39Discrimination - Supplementary Comparison fundamental to direct, indirect & combined discrimination cases.Section 23 provides that for the purposes of a comparison, there must be no material difference between the circumstances relating to each case.Specifically in relation to disability, the circumstances include a person’s abilitiesSection 24 makes plain that it is no defence for the discriminator to say that he shares the protected characteristic with the victimExamplee.g An employer cannot argue that because he is a gay man he is not liable for unlawful discrimination for rejecting a job application from another gay man because of the applicant’s sexual orientation.
40Harassment (1) Section 26 3 types of prohibited conduct A harasses B ifA engages in unwanted conduct related to a protected characteristic and the conduct has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for BIf A engages in unwanted conduct of a sexual nature which has the purpose of effect of violating B’s dignity or creating an intimidating etc… environment for BIf A engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, has the purpose or effect (as above) and because of B’s rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.
41Harassment (2)It is not necessary that the victim should have the protected characteristic. It is sufficient that the conduct in question related to that characteristic.It is not necessary that the conduct should be aimed at the victim. It is sufficient that the conduct had the effect of violating the victim’s dignity etc…In deciding whether the conduct has the proscribed effect, account must be taken of – B’s perception; the other circumstances of the case; and whether it is reasonable for the conduct to have the effect (Section 26(4))
42Harassment (3) Scope of protection – Sections 40 & 41 Employer treated as harassing employee if a third party harasses employee in course of latter’s employment and employer failed to take reasonably practicable steps to prevent itThird party provisions do not apply unless employer knows that employee etc… has been harassed on at least two other occasions by a 3P (the same or different 3P)In relation to contract workers, the principal must not harass a contract worker. Defined as a person employed by another and is supplied to the principal
43Harassment (4) Examples A white worker who sees a black colleague being subjected to racially abusive language could have a case of harassment if the language also causes an offensive environment for her.An employer who displays any material of a sexual nature, such as a topless calendar, may be harassing her employees where this makes the workplace an offensive place to work for any employee, female or male.A shopkeeper propositions one of his shop assistants. She rejects his advances and then is turned down for promotion which she believes she would have got if she had accepted her boss’s advances. The shop assistant would have a claim of harassment.
44Victimisation (1) Section 27 If A subjects B to a detriment because B does a protected act, or because A believes that B has done or may do a protected act.Protected acts include bringing proceedings under Act, giving evidence/information in connection with proceedings, do any other thing for the purposes of Act, alleging that another person has contravened ActGiving false evidence/information etc… is not a protected act if it is done in bad faithNot dissimilar to existing provisions relating to victimisationBUTNo longer requires proof that discriminator has/would act differently to the way he has or would treat an actual or hypothetical comparator
45Victimisation (2) Examples A woman makes a complaint of sex discrimination against her employer. As a result, she is denied promotion. The denial of promotion would amount to victimisation.A gay man sues a publican for persistently treating him less well than heterosexual customers. Because of this, the publican bars him from the pub altogether. This would be victimisation.An employer threatens to dismiss a staff member because he thinks she intends to support a colleague’s sexual harassment claim. This threat could amount to victimisation.A man with a grudge against his employer knowingly gives false evidence in a colleague’s discrimination claim against the employer. He is subsequently dismissed for supporting the claim. His dismissal would not amount to victimisation because of his untrue and malicious evidence
46Combined Discrimination (1) IllustrationA black woman has been passed over for promotion to work on reception because her employer thinks black women do not perform well in customer service roles. Because the employer can point to a white woman of equivalent qualifications and experience who has been appointed to the role in question, as well as a black man of equivalent qualifications and experience in a similar role, the woman may need to be able to compare her treatment because of race and sex combined to demonstrate that she has been subjected to less favourable treatment because of her employer’s prejudice against black women.
47Combined Discrimination (2) In Bahl v Law Society  IRLR 799, the absence of a right to claim for “dual discrimination” was identified.If C could not prove that one or other ground of discrimination had operated, then he would loseSection 14 seeks to address this
48Combined Discrimination (3) “A discriminates against B if, because of a combination of two relevant characteristics, A treats B less favourably than A treats or would treat a person who does not share either of those characteristics.”To prove breach, B need not show that one or other would have succeeded as a direct discrimination claim
49Combined Discrimination (4) Further ExamplesA bus driver does not allow a Muslim man onto her bus, claiming that he could be a “terrorist”. While it might not be possible for the man to demonstrate less favourable treatment because of either protected characteristic if considered separately, a dual discrimination claim will succeed if the reason for his treatment was the specific combination of sex and religion or belief, which resulted in him being stereotyped as a potential terrorist.A black woman is charged £100 for insurance. As white men are only charged £50 for the same insurance, she alleges this is dual discrimination because of the combination of sex and race. By comparing the claimant’s treatment with a white woman who also pays £100, or a black man who pays £50, the insurance company is able to demonstrate that the difference in premium is entirely due to sex, not race. The insurance exception in Schedule 3 means that insurance companies can lawfully set different premiums for women and men in certain circumstances so provided the exception applies in this case, the treatment does not constitute dual discrimination. The less favourable treatment is because of sex and an exception makes the sex discrimination lawful.
50Combined Discrimination (5) Still under considerationNot coming into force on 1st October
51Substantive Obligations Section 39 – employees and job applicantsEmployer must not discriminate or victimise & the duty to make reasonable adjustments applies to an employerSection 40 – harassmentSection 41 – contract workersSection 44 – partnershipsClearer language but not very much changeExtends third party harassment from sex discrimination to other protected characteristics (except marriage, civil partnership, pregnancy & maternity)
52Prohibited Conduct: Ancillary (1) Past Relationships Section relationships which have ended e.g. negative reference on an ex-employee because of his raceIf the conduct would have constituted discrimination during the relationship; andThe discrimination arises out of and is closely connected to a relationship which used to exist between discriminator and victimAlso, outlaws post-relationship harassment (sub-section (2))Applies even where relationship ended before commencement of Act (sub-section (3))
53Prohibited Conduct: Ancillary (2) Employers/Principals/ & Employees/Agents Sections 109 & 110Designed to ensure that liability may attach both to the person doing the unlawful act and to the person on whose behalf he was actingReplicates existing lawSomething done by E in course of employment or within authority as agent treated as done by employer/principal (Section 109)Knowledge or approval of employer/principal irrelevantBUT a defence for employer/principal to show that it took “all reasonable steps” to prevent E from doing it or anything of that description (Section 109(4))If E renders employer etc.. liable under Section 109, then E commits a contravention of Section 110E cannot hang onto successful Section 109(4) defence
55Exceptions – Schedule 9 Para 1 A person does not contravene certain substantive obligations by applying in relation to work a requirement to have a particular protected characteristic if it is shown that, having regard to the nature or context of the work, it is an occupational requirement, that applying that requirement is a proportionate means of achieving a legitimate aim, and the requirement is not met.- Offers of employment; access to training etc…; dismissal
56Exceptions – Schedule 9 Examples The need for authenticity or realism might require someone of a particular race, sex or age for acting roles (for example, a black man to play the part of Othello) or modelling jobs.Considerations of privacy or decency might require a public changing room or lavatory attendant to be of the same sex as those using the facilities.An organisation for deaf people might legitimately employ a deaf person who uses British Sign Language to work as a counsellor to other deaf people whose first or preferred language is BSL.A counsellor working with victims of rape might have to be a woman and not a transsexual person, even if she has a Gender Recognition Certificate, in order to avoid causing them further distress.
57Equality of Terms (1) Replaces the Equal Pay Act 1970 Work equal to that of a comparatorReplicates concepts of equal work, work of equal value & work rated as equivalent (Section 65)Re-utilises the sex equality clause i.e. the contractual route (Section 66)GMF factor at Section 69 – NB long-term objective of reducing inequality is always a legitimate aim (Section 69(3)
58Equality of Terms (2) Section 71 Sex discrimination does not apply where there is an equal pay claim.BUT where there is not, then sex discrimination claim can be brought in relation to pay.This permits, within a sex discrimination claim, the use of a hypothetical comparator
59Equality of Terms (3) Example An employer tells a female employee "I would pay you more if you were a man" or tells a black female employee "I would pay you more if you were a white man“In the absence of any male comparator the woman cannot bring a claim for breach of an equality clause but she can bring a claim of direct sex discrimination or dual discrimination (combining sex and race) against the employer.
60Equality of Terms (4) Comparators – Section 79 If two persons share the same employer and work at the same establishment, each may be a comparator for the other.If two persons work at different establishments but share the same employer and common terms and conditions of employment apply, each may be a comparator for the other.A person can also be a comparator for another in either of the above circumstances if one is employed by a company associated with the other’s employer. subsection (9) defines when employers are taken to be associated.
61Pay Secrecy Section 77 Coming into force on 1st October 2010 Designed to stop employers “gagging” colleagues who may wish to reveal or discover what they are paidA term which purports to prevent or restrict P from disclosing or seeking to disclose information about the terms of P’s work is unenforceable against PEqually unenforceable is a term which tries to stop a person from seeking such information from a colleague
62Pay Secrecy (2)BUT must be made for the purpose of establishing a connection between pay & a particular protected characteristic“Colleague” includes former colleagueDoes this create a strategy for team moves?
63Pay Secrecy (3) Examples A female employee thinks she is underpaid compared with a male colleague. She asks him what he is paid, and he tells her. The employer takes disciplinary action against the man as a result. The man can bring a claim for victimisation against the employer for disciplining him.A female employee who discloses her pay to one of her employer’s competitors with a view to getting a better offer could be in breach of a confidentiality clause in her contract. The employer could take action against her in relation to that breach.
64Gender Pay Gap (1) Section 78 Still under consideration – not in force from 1st October 2010Applicable to private sectorEnabling provision requiring further regulations
65Gender Pay Gap (2)Regs may require employers to publish pay information relating to the pay of men and womenRegs may describe types of information to be publishedObligation only on employers with more than 250 employeesNot applicable to public authorities or government departments
66Socio-Economic Duty (1) Section 1Not coming into force in October Will it ever under this government?An “authority” which is taking a strategic decision must have due regard to the desirability of doing so in a way which is designed “to reduce the inequalities of outcome which result from socio-economic disadvantage”
67Socio-Economic Duty(2) “Authority” defined to includeGovernment departmentLocal authoritiesStrategic health authorityPCTPolice authorities
68Socio-Economic Duty(3) ExamplesUnder the duty, a Regional Development Agency (RDA), when reviewing its funding programmes, could decide to amend the selection criteria for a programme designed to promote business development, to encourage more successful bids from deprived areas.The duty could lead a local education authority, when conducting a strategic review of its school applications process, to analyse the impact of its campaign to inform parents about the applications process, looking particularly at different neighbourhoods. If the results suggest that parents in more deprived areas are less likely to access or make use of the information provided, the authority could decide to carry out additional work in those neighbourhoods in future campaigns, to ensure that children from deprived areas have a better chance of securing a place at their school of choice.
69Public Sector Equality Duty (1) SectionsGovernment still consultingPublic authority must have due regard to the need toEliminate discrimination, harassment, victimisation and other conduct outlawed by the ActAdvance equality of opportunityFoster good relations between persons with and without a relevant shared characteristic
70Public Sector Equality Duty (2) ExamplesThe duty could lead a police authority to review its recruitment procedures to ensure they do not unintentionally deter applicants from ethnic minorities, with the aim of eliminating unlawful discrimination.The duty could lead a local authority to target training and mentoring schemes at disabled people to enable them to stand as local councillors, with the aim of advancing equality of opportunity for different groups of people who have the same disability, and in particular encouraging their participation in public life.The duty could lead a local authority to provide funding for a black women’s refuge for victims of domestic violence, with the aim of advancing equality of opportunity for women, and in particular meeting the different needs of women from different racial groups.
71Public Sector Equality Duty (3) The duty could lead a large government department, in its capacity as an employer, to provide staff with education and guidance, with the aim of fostering good relations between its transsexual staff and its non-transsexual staff.The duty could lead a local authority to review its use of internet-only access to council services; or focus “Introduction to Information Technology” adult learning courses on older people, with the aim of advancing equality of opportunity, in particular meeting different needs, for older people.The duty could lead a school to review its anti-bullying strategy to ensure that it addresses the issue of homophobic bullying, with the aim of fostering good relations, and in particular tackling prejudice against gay and lesbian people.
72Public Sector Equality Duty (4) Note to judges – this duty does not apply to you in the discharge of judicial function (Schedule 18 paragraph 3)
73Positive ActionSs 158-9: Concept of positive action expanded to allow employers to take proportionate measures:to recruit or promote a person from an under-represented group where choice between two or more equally qualified candidates – see Employment Code of Practiceto overcome a perceived disadvantageto meet specific needs based on a protected characteristicPermissive not compulsoryNOT IN FORCE UNTIL APRIL 2011
74Pre-employment Health Checks (1) Limited circumstances for health questions in recruitment until job offer madeUntil then only permissible checks:Can comply with requirement for particular selection processReasonable adjustments for selection processFunctions intrinsic to the jobMonitoring diversityPositive actionDisability is an Occupational RequirementEnforcement: EHRC not ET (evidence of discrim?)
75Pre-employment Health Checks (2) Once job offer made can ask appropriate health related questions
76Extension of ET PowersRecommendations can be made even if C no longer employed by RDoes not apply to ‘equal pay’ casesFor wider workforce, no remedy for failure to comply