Equality Act 2010 The Equality and Human Rights Commission Sarah Gilzean Senior Solicitor 1

What we will cover The Equality Act purpose and structure Protected characteristics Prohibited conduct The EHRC and its powers Our legal strategy Contact us 2

Equality Act Parts; 28 Schedules – eg: Key concepts (P2 and sch 1) Services and public functions (P3, sch 2&3) Premises (P4, sch 4&5) Work and employment services (P5, Sch 6,7,8 & 9) Education (P6, Sch 10,11,12,13 &14) Associations (P7, Sch 15 &16) Other unlawful conduct (P8) Enforcement (P9, sch 17) Advancing equality (P11, Sch 18 &19) Exceptions (P14, sch 22 &23) 3

Equality Act 2010 Also see: Regulations Explanatory Notes Codes of Practice Non-statutory guidance EHRC website 4

Key concepts – Protected characteristics Age (s 5) Disability (s 6) slight change Gender reassignment (s 7) slight change Marriage and civil partnership (s 8) Pregnancy and maternity (s18) Race (s 9) Religion and belief (s 10) Sex (s 11) Sexual orientation (s 12) 5

Age (s.5) Where the Act refers to the protected characteristic of age it means a person belonging to a particular age group. An age group includes persons of the same age and people of a particular range of ages 6

Disability (s.6) A person has a disability for the purposes of the Act if he or she: — - has a physical or mental impairment, and - the impairment has a substantial and long- term adverse effect on his/her ability to carry out normal day-to-day activities. Schedule 1 and Regulations on meaning of disability Guidance on matters to be taken into account in determining questions relating to the definition of disability 7

Gender reassignment (s.7) Where a person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex. Replaced similar provisions, but no longer requires a person to be under medical supervision to come within it. 8

Marriage/civil partnership (s.8) A person has the protected characteristic of marriage and civil partnership if the person is married or is a civil partner. People who are not married or in a civil partnership do not have this characteristic – i.e. single people are not protected. 9

Race (s.9) Race includes — colour; nationality; ethnic or national origins. Also power to amend the definition to include caste. 10

Religion or belief (s.10) Covers any religion falling within Art 9 ECHR; must have clear structure and belief system Covers philosophical beliefs which meet particular criteria Includes a lack of belief/religion A ‘philosophical belief’ must not be incompatible with human dignity or conflict with fundamental rights of others [see EN 52] 11

Sex (s.11) The Act provides protection against sex discrimination for males and females of any age. Note that while pregnancy and maternity discrimination is a form of sex discrimination there are distinct provisions in ss17 and 18 12

Sexual orientation (s.12) Sexual orientation means a person’s sexual orientation towards— persons of the same sex, persons of the opposite sex, or persons of either sex. 13

Pregnancy and maternity (s.17 & 18) Protects a woman from discrimination during a protected period because of: –The pregnancy –Pregnancy-related illness –Taking or seeking to take maternity leave The protected period New: includes protection from discrimination in education 14

Key concepts - Prohibited conduct Direct discrimination (s 13) Indirect discrimination (s 19) Discrimination arising from disability (s 15) Duty to make reasonable adjustments (ss 20 & 21) Harassment (s 26) Victimisation (s 27) Equality of terms (ss 64-80) 15

Direct discrimination 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. Discrimination by association or perception included Direct discrimination can never be justified however age discrimination remains justifiable 16

Indirect discrimination A applies a provision, criterion or practice (PCP) to B A applies, or would apply, the PCP to persons with whom B does not share the relevant protected characteristic the PCP 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 the characteristic the PCP puts, or would put, B at that disadvantage and the PCP is not a proportionate means of achieving a legitimate aim. 17

Harassment a person (A) harasses another (B) if A engages in unwanted conduct ‘related to a relevant protected characteristic’ which has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. Includes association and perception 18

3 rd Party Harassment Three requirements for liability –A third party harasses the employee in the course of the employee's employment; and –The employer has failed to take such steps as would have been reasonably practicable to prevent the third party from doing so; and –The employer knew that the employee had been harassed in the course of their employment on at least two other occasions by a third party 19

Victimisation ‘A person (A) victimises another person (B) if A subjects B to a detriment because (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.’ Removes the need for the tribunal to construct an appropriate comparator. ‘Protected acts’ include ‘relevant pay disclosures’ 20

Reasonable adjustments Where a disabled person is placed at a substantial disadvantage to non-disabled people, there is a duty to make changes to: 1.Provisions, criteria or practices 2.Physical features 3.And a duty to provide auxiliary aids and services (such as a hearing loop or a special computer service) Express reference is made to providing information in an accessible format and not passing on the cost of an adjustment. 21

What is reasonable? Would adjustment be effective; How practicable would it be to take make the adjustment; Financial and other costs of making the adjustment; Disruption which making the adjustment would cause; Amount of resources already spent on making adjustments; and Availability of financial or other assistance. 22

Discrimination arising from disability A person (A) discriminates against a disabled person (B) if A treats B unfavourably because of something arising in consequence of B’s disability Discrimination arising from disability can be justified if it is shown to be a proportionate means of achieving a legitimate aim A must know or can reasonably be expected to know that B has a disability in order for discrimination to occur 23

Enquiries about disability and health Section 60 “(1) A person (A) to whom an application for work is made must not ask about the health of the applicant (B)- (a) before offering work to B, or (b) where A is not in a position to offer work to B, before including B in a pool of applicants from whom A intends to select a person to whom to offer work.” 24

Enquiries about disability and health Exceptions To ascertain if the person can undergo an assessment or if reasonable adjustments to the recruitment process are needed; For monitoring purposes; To ascertain if B can carry out some function that is intrinsic to the post; To allow positive action for disabled people; Where there is an occupational requirement that the job is done by a disabled person. 25

The Public Sector Duty In force since April 2011, sections General duty on public authorities to have due regard, when carrying out their functions, to the need to: eliminate unlawful discrimination, harassment or victimisation; advance equality of opportunity and foster good relations in relation to each of the protected characteristics. underpinned by specific duties 26

What’s not in force Socio-economic Duty on public bodies (s1) Combined discrimination: dual characteristics/ dual discrimination (s14) Gender pay gap reporting (s78) What’s being repealed Third party harassment provisions(s40) Power to make wider recommendations (s124(3)(b)) Questionnaire procedure (s138) 27

What’s new Prohibition on age discrimination in services and public functions and associations (s31) In force from 1 Oct 2012 Direct and indirect, harassment and victimisation Subject to objective justification Exceptions: –Financial services –Age-based concessions Slide Number 28

The Commission’s powers Intervene in Commission’s name (s30) [equality or human rights or both] Judicial Review proceedings in Commission’s name (s30) [equality or human rights or both] Provide legal assistance to an individual bringing proceedings under the EA (s28) [equality or both, but not human rights alone] Also other enforcement powers eg inquiries, investigations 29

EHRC strategic priorities for using litigation powers where the case would have a significant positive impact in terms of the application of the law or the policies and practices of an organisation, institution or sector have a positive public impact, securing greater understanding of rights and obligations under the equality enactments and/or human rights law address significant disadvantage in respect of one or more of the protected grounds and/or major abuse or denial of human rights challenge a policy or practice known to cause significant disadvantage 30

EHRC strategic priorities for using litigation powers..... is a cost effective method of achieving a desired outcome, taking into account the prospects of success clarifies an important point of law under the Equality Act 2010 or Human Rights Act will extend or strengthen protections and rights under the Equality Act 2010 and, where it also applies, human rights law; will contribute substantially to other areas of the Commission’s work 31

Further information EHRC website information on Equality Act policy/equality-act/ policy/equality-act/ Law Society of Scotland 32

The Commission’s legal team in Scotland Strategic human rights and equality litigation policy/strategic-human-rights-and-equality-litigation/ Legal Team Bulletin: scotland/equality-law-bulletin/ Requests for assistance: Tel: Sarah Gilzean