THE EQUALITY ACT 2010 Impact to date, key areas for consideration Paul McGowan 6 October 2011 COLLINGWOOD LEGAL Direct Dial: Mobile:

Overview Update on the Act –The protected characteristics –Types of discrimination –Third party harassment Vicarious liability The public sector equality duty Questions

Update on the Equality Act 2010 Employment, including equal pay Education Provision of goods and services Disposal, management and occupation of premises Codes of Practice

The Protected Characteristics Sex Marriage and Civil Partnership Gender Reassignment Pregnancy and Maternity Race Disability Religion or Belief Age Sexual Orientation

Types of Discrimination Direct Less favourable treatment because of a protected characteristic, NB association and perception No defence (except in relation to age) Indirect Provision, Criterion or Practice which puts people of a particular group at a disadvantage; puts the claimant at that disadvantage; and cannot be shown to be a proportionate means of achieving a legitimate aim.

Indirect Discrimination - Practical Examples Sex Religion or Belief Sexual Orientation Disability NB does not apply to pregnancy or maternity

Combined discrimination Proposed new right to claim direct discrimination because of a combination of two protected characteristics. Was due to come into force April 2011, however now scrapped.

Disability Specific Issues Duty to make reasonable adjustments Discrimination arising from a disability Health questionnaires

Victimisation Detriment due to a protected act –Bringing proceedings –Evidence or information –Anything else under Equality Act –Allegation of breach of Equality Act –Must made be in good faith

Harassment Unwanted conduct related to a relevant protected characteristic which has the purpose or effect of : –Violating dignity –Creating an intimidating, hostile, degrading, humiliating or offensive environment. Unwanted conduct of a sexual nature which has the purpose or effect above. Less favourable treatment due to rejection or submission to the unwanted conduct- sex, sexual nature and gender reassignment only.

Third party harassment Liability for acts of third parties Applies when harassment takes place during the course of the complainant’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. –Will not be liable unless the employer knows that the employee has been subject to harassment on at least two other occasions by a third party.

Exceptions Genuine Occupational Requirements Positive Action, extended in April

Vicarious liability Liability for employees acting in the course of their employment and agents acting within the authority of the education provider. Unless:- – Employer ‘took all reasonable steps to prevent’ the employee acting unlawfully. Importance of training, policies etc. –Agent’s actions are in direct contravention of express instructions not to discriminate. Importance of clear contractual terms.

6 April general equality duty came into force Must in exercise of functions have regard to the need to –Eliminate unlawful discrimination, harassment, victimisation and other prohibited conduct –Advance equality of opportunity between people who share a protected characteristic and those who do not –Foster good relations between people who share a protected characteristic and those who do not Public Sector Equality Duty

10 September specific equality duties came into force 6 April further education institutions to publish –One or more objectives for achieving the aims set out in s.149 (1) (and continue every four years after that) 31 January further education institutions to publish;- –information demonstrating compliance with general duty (and to continue to do this annually) Public Sector Equality Duty

Practical Tips for compliance with the general duty Ensure all managers/ senior staff are aware of the requirements of the duty Duty complied with before/when a policy is being considered, implemented and reviewed Duty should influence final decisions Third parties exercising public functions on your behalf must comply with the duty- should be required to do so. Public Sector Equality Duty

Practical Tips for compliance with the specific duties Ensure you comply with the requirements of the DPA/ confidentiality when publishing information Engage with protected groups to help set objectives Look for areas of greatest need for action when prioritising objectives Set timetables for review of objectives Public Sector Equality Duty

Equality Act 2010 Questions?

THE EQUALITY ACT 2010 Paul McGowan COLLINGWOOD LEGAL Direct Dial: Mobile: