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WHAT does the Equality Act do?The Act outlaws discrimination for the following nine “protected characteristics”: aeg, disability, gender reassignment, marriage, and civil partnership, pregnancy and martenity, race, religion or belief, sex and sexual orientation.
TO whom does the Act apply?The Act applies to all employers and anyone providing a service (for instance organisations that provide goods or facilities to the public) or exercising a public function. It also applies to anyone running a private club or association.
All job applicants and employess are protected as are workers (including contract workers). It also covers the self employed who are personally engaged to do the work.
Agency workers engaged by an employment business may be classed as contract workers if they are employed by that business. Agency workers supplied to a principal to do work and paid by an employment business under a contract will also be protected.
WHAT is considered to be unlawful discrimination under the ACT?
DIRECT DiscriminationThis is when someone with a protected characteristic is treated less favourably than someone else who does not have a protected characteristic.
ASSOCIATIVE DiscriminationThis is the same as direct discrimination but applies to someone because of their association with a person who has a protected characteristic (such as the mother of a disabled child)
This provision does not apply specifically to the protected characteristic of pregnancy and maternity, although it may be possible to argue that a worker treated less favourably because of their association with a pregnant woman amounts to associative sex discrimination.
PERCEPTIVE DiscriminationThis is the same as direct discrimination but applies to someone who is discriminated against because another person thinks they possess a particular protected characteristic. This provision does not apply to the characteristic of marriage and civil partnerships and pregnancy and martenity.
This is when an employer applies a provision, criterion or practice (PCP) equally to everyone, but which in fact puts (or would put) people with a protected characteristic at a particular disadvantage compared to those who do not share that characteristic and which cannot be justified by the employer.Indirect discrimination can only be justified if the employer can show that the PCP is a proportionate means of achieving a legitimate aim.
DISCRIMINATION ARISING FROM DISABILITY
This is when an employer knows that someone has a disability and discriminates against them because of something relating to or arising from their disability which cannot be justified.
DUTY TO make adjustments
Employers have a duty to make reasonable adjustments for disabled people in three circumstances.
* IF a PCP puts them at a substantial disadvantage in comparison with someone who is not disabled.
* If a physical feature puts them at a disadvantage in comparison with someone who is not disabled.
*If a disabled person would be put at a substantial disadvantage in comparison with someone who is not disabled , were it not for an auxiliary aid.
WHAT OTHER CONDUCT IS PROHIBITED?
HARASSMENTHarassment is defined as “unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual”
The provisions on harassment do not apply to the protected characteristics of pregnancy and maternity and marriage and civil partnerships. However someone subject to harassment related to these protected characteristics may be able to bring a claim of harassment related to sex and/or sexual orientation.
People at work can complain about behaviour that they find offensive even if they do not have the protected characteristic themselves. So for example, witnesses to harassment may be protected.
The Act specifically prohibits three types of harassment- unwanted conduct relating to arelevant protected characteristic , sexual harassment: and less favourable treatment of someone because they agreed to or rejected sexual harassment or harassment related to their sex or gender re-assignment.
THIRD PARTY HARASSMENT
Although the government repealed the provision whereby employers could be found liable for harassment by third parties in October 2013, it may still be possible to bring a claim under the general provisions on harassment.
This is when an employeee is treated badly because they have done or may do a protected ACT,
Examples of protected Acts include:
*Bringing proceeedings under the ACT , or previous discrimination legislation.
*Making Allegations of a breach of the Act , or previous discrimination legislation.
*Giving evidence or information in connection with proceeedings that someone else has brought.
*Doing anything else such as raising a grievance or giving evidence in someone else’s grievance.
The person complaining of victimisation has to have acted in good faith when doing a protected Act. A false allegation will not amount to a protected Act.
WHAT IS POSITIVE ACTION?
THE ACT ALLOWS employers to treat someone with a protected characteristic more favourably during the recruitment or promotion process.
If they think that the person with the protected characteristic has a reasonable chance of being disadvantaged because of that characteristic ( or there are fewere people with a particular protected characteristic employed), they can choose that person over someone who does not have the characteristic provided that:
*The person is “as qualified” as the other candidate.
* The employer does not have arecruitment or promotion policy of treating people of the under represented group favourably.
*The more favourable treatment is a proportionate means of achieving a legitimate aim (the legitimate aim being encouraging participation and overcoming disadvantage).
These provisions are voluntary. An employee cannot bring a claim because the employer did not apply positive action during the recruitment or promotion process, although they may still be able to bring a claim if they were against, during it.
WHAT ARE PRE_EMPLOYMENT health related checks.
An employer must not ask about a job applicant’s health or whether they have a disability until they have either been offered a job or been included in a pool of successful applicants.
However this is not a blanket ban and an employer can ask about whether a person has a disability before offering a job to an applicant if it will help them to:
* Make a reasonable adjustment to the selection process.
* Decide whether an applicant can carry out a function that is essential to the job.
* Monitor diversity amongst applicants.
* Take positive action to help disabled people
*Ensure that the candidate actually has the disability if the job genuinely requires the job holder to have a particular disability.
CAN TRIBUNALS MAKE GENERAL RECOMENDATIONS?
Under the Act, Tribunals can recommend that organisations take steps to eliminate or reduce the effect of discrimination on other employees, not just the claimant (with the exception of equal pay claims)
The government announced in May 2013 that it will repeal this provision but has not as yet, indicated when this will be.
source UNITE THE UNIONUNITE LEGAL SERVICES-Equality Act 2010
Tel 0800 709 007
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