The Equality Act 5 years on Welcome Spring to Equalities: The Equality Act 5 years on 7th March 2016 In association with

Introduction Andrea Johnson

Equality North East Not for profit organisation established in 1997 We work to achieve the removal of barriers to employment and entry into employment facing minority and disadvantaged groups Wholly owned subsidiary of Gateshead College since 2012 One of the founding members of the National Network of Equalities Networks (NNEN) ‘Leading the way to a fairer future for all by celebrating the value of Equality and Diversity through innovative training, support and networking opportunities'

The Equality Standards  

Celebrating Success

North East Equality Awards

Working together to make a difference

Life is a roller coaster…

ConNEcting for Change - 2016 2016 – 350 member organisations, 20 Equality Champions, 1500+ individual members Self-funded Virtual network Extensive knowledge bank widely used

Extensive knowledge bank and resources

What it’s all about! “Coming together is a beginning. Keeping together is progress. Working together is success.” (Henry Ford)

Paul Johnstone Partner Collingwood Legal Equality North East Associate Equality Act 2010 – 5 years on! Paul Johnstone Partner Collingwood Legal Equality North East Associate

Equality Act 2010 Consolidation of discrimination law “protected characteristics” religion or philosophical belief pregnancy and maternity marriage and civil partnership age race sex disability gender reassignment sexual orientation

Equality Act 2010 Applies not only A: in the workplace (including pre-employment in relation to applicants for jobs and post-employment in relation to references); but also B: in relation to services an organisation may provide

Equality Act 2010 Burden of proof on employer “guilty until proven innocent” Joint and several liability for employer and employee

Equality Act 2010 Types of discrimination direct indirect victimisation harassment

Direct discrimination Section 13(1) Equality Act 2010 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 Defence – employer to show “taken all reasonable steps to prevent”

Indirect discrimination Section 19(1) Equality Act 2010 a person (A) discriminates against another (B) if A applies to B a provision, criterion or practice (PCP) which is discriminatory in relation to a relevant protected characteristic of B’s PCP can sometimes be obvious, sometimes more difficult to identify

Indirect discrimination Defence if employer can show PCP is a “proportionate means of achieving a legitimate aim”

Victimisation A person (A) victimises another person (B) if A subjects B to a detriment because B does a protected act A believes that B has done or may do a protected act

Harassment A person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic the conduct has the purpose or effect of violating B’s dignity creating an intimidating, hostile, degrading, humiliating or offensive environment for B

“Objective” test Factors to be taken into account the perception of B the other circumstances of the case whether it is reasonable for the conduct to have that effect

Other concepts Discrimination by association Discrimination by perception No minimum period of employment or even to have been employed at all

Risk No limit on financial compensation Injury to feelings – Vento / DaBell guidelines lower band - £500 - £6,000 middle band - £6,000 - £18,000 Upper band - £18,000 - £30,000 (based on severity of behaviour)

Disability discrimination “Disability” components physical or mental impairment substantial long term adverse effect on normal day to day activities Discrimination relates to disability less favourable treatment arising from disability

Normal day to day activities Impairment could adversely affect manual dexterity physical co-ordination continence ability to lift, carry or move everyday objects speech hearing or eyesight memory or ability to concentrate, learn or understand perception of the risks of physical danger

Reasonable adjustments Disabled employees have all standard rights not to be directly or indirectly discriminated against, victimised or harassed An employer also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments he cannot show failure to comply with the duty is proportionate and legitimate

Examples of reasonable adjustments Adjustments to premises Allocate some of the employee’s duties to another person Transfer to an existing vacancy Altering hours of work / training Assigning to a different place of work

Examples of reasonable adjustments cont... Absence to allow for rehabilitation assessment or treatment Acquiring or modifying equipment Modifying procedures for testing or assessment Providing a reader or interpreter Providing supervision/other support List is deliberately not exhaustive

Reasonable adjustments Factors to consider in terms of reasonableness include cost (NB: risk with considering cost alone) availability of funding support effectiveness size and resources of the employer disruption

Private sector companies Company directors Fiduciary duties Companies Act 2006 Outsourcing and procurement contracts in the delivery of “services” to the public

Public Sector Equality Duty Section 149 (1) Public authorities must, in the exercise of their functions, have due regard to the need to:- (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by the Act (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it

Public Sector Equality Duty Section 149 (1) (3) having due regard to the need to advance equality of opportunity… (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it (c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low

Public Sector Equality Duty Section 149 (5) Having due regard to the needs to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to:- (a) tackle prejudice, and (b) promote understanding

Equality Act 2010 Practical example: dispute between neighbours / tenants planning applications construction projects health and social care services education services

Equality Act 2010 Remedies Employment Tribunals County Court Judicial Review EHRC – enforcement action

Useful guidance and resources Equality North East www.equality-ne.co.uk Equality and Human Rights Commission www.equalityhumanrights.com Equalities Toolkit http://www.equalitiestoolkit.com