Equality Act 2010 – Outline and Update

The Government’s Equality Bill with its 218 clauses was passed on the 6th April 2010, replacing all the previous equalities legislation. The main components of the Act came into force in October 2010.

These are some of the principle components of the Act.

Simplification and Protected Characteristics

There are now common basic definitions of direct and indirect discrimination (see below) which apply to the protected characteristics.

The Act defines discrimination in terms of nine “protected characteristics”:

age; disability; gender reassignment; marriage and civil partnership; pregnancy and
maternity; race; religion or belief, sex and sexual orientation.

It context of the Act it will be against the law to discriminate on any of these grounds.

Public sector equality duty

The Act extends the new public sector equality duty to now include:

age; disability; gender reassignment; marriage and civil partnership; pregnancy and
maternity; race; religion or belief, sex and sexual orientation.

… and in the exercise of their functions, have due regard to the need to:

NB:  Marriage & civil partnership only relates to point one eliminating unlawful discrimination ….

Having due regard for advancing equality involves:

Due Regard:

Having due regard to the aims of the general equality duty is about using good equality information and analysis, at the right time, as part and parcel of your decision-making processes.  It means consciously thinking about the three aims as an integral part of the process of decision-making eg:

Equality objective:

Each public authority must prepare and publish one or more objectives it thinks it should achieve in relation to the PSED not later than 6th April 2012, and
subsequently at intervals of not greater than four years. Each public authority had to publish information to demonstrate its compliance with the PSED not later than 31st January 2012, and subsequently at intervals of not greater than one year.

A public authority’s published information must include information relating to persons who share a relevant protected characteristic who are:

  1. its employees
  2. other persons affected by its policies and practices.

NB:  This does not apply to a public authority with fewer than 150 employees.

Each public authority must publish the information in such a manner that the information is accessible to the public.

Public bodies will continue to need to assess the effect on equality of what they do, and this now needs to include the effect on all characteristics protected under the equality duty.

Equality Analysis  (known previously as Equality Impact Assessments)

Whilst not a legal requirement, is a way of considering the effect on different groups protected from discrimination by the Act.

  1. to consider if there are any unintended consequences for some groups,
  2. to consider if the policy will be fully effective for all target groups.

This would normally involve using equality information, and the results of engagement with protected groups and others, to understand the effect of your functions, policies or decisions.

Public body procurement

The public authority is legally responsible for complying with the general equality duty in its timing and undertaking of procurement. Where the duty does not directly apply to the contractor, the commissioning public authority may need to include obligations relating to equality in the contract relating to the service, in order to comply with its obligations under the duty. Whenever one of your functions is carried out by an external supplier, you remain responsible for meeting the equality duty. This includes taking equality considerations into account when you are de-commissioning services, as well as when you are commissioning
new ones.

Enforcement

The powers of employment tribunal are also to be strengthened to make recommendations in discrimination cases that benefit the wider workforce as well as the individual claimant. The EHRC will be tasked with monitoring and holding public bodies to account.

Gender pay reports

Public bodies are required to publish their gender pay gay annually. The Government will work with private and voluntary sector employers to promote reporting of equality data on a voluntary basis.

Age discrimination outside the workplace

It will become unlawful (October 2012) to discriminate against adults aged 18 and over because of their age when providing goods, facilities and services and carrying out public  functions; the Act will not prevent the differential provision of products or services for people of different ages where this is justified.

Positive action

Employers, can take proportionate steps to help people with protected characteristics who are disadvantaged, or under-represented in some areas of life, or have particular needs linked to their characteristic to take proportionate steps to help them overcome that disadvantage or to meet those needs.

As a tie-break if two equally qualified candidates apply for a position, the person from the underrepresented group can be selected. However, making decisions irrespective of merit (i.e. quotas) or having an automatic policy of favouring those from under-represented groups will remain unlawful.

Strengthening protection for disabled people

  1. makes it unlawful for employers to ask job applicants questions about disability or health before making a job offer, except in specified circumstances;
  2. those to whom the act applies must take reasonable steps to provide information in an accessible format where disabled people would otherwise be at a substantial disadvantage in the way that information is being provided.
  3. It is discrimination to treat a disabled person unfavourably because of something connected with their disability. This type of discrimination is unlawful
    where the employer or other person acting for the employer knows, or could reasonably be expected to know, that the person has a disability. This type of discrimination is only justifiable if an employer can show that it is a proportionate means of achieving a legitimate aim.

Other clauses include

Protection by association – a person will be protected from direct discrimination because of their association with people who are protected from discrimination themselves ie: now extended to cove r all protected characteristics and those associated with them.

Breastfeeding – mothers have stronger protection when breastfeeding in public.

Discrimination in private clubs – where exempted before most private clubs are now covered by the Act.

Third Party Harassment – Employers are liable for harassment of their employees by people who are not employees. Liability is when harassment has occurred on at least two previous occasions, employers are aware that it has taken place and they have not taken reasonable steps to prevent it from happening again (under review)

Caste discrimination – the Act introduces the power to ban caste discrimination, if after further research, the need for it is established. If so caste will be add
ed to the definition of Race.

Gender reassignment definition – revised to make it clear that a trans person does not have to be under medical supervision to be protected from discrimination and harassment.

Mistaken identity – the Act provides new protection if you experience discrimination because you are wrongly thought to have a protected characteristic.

Terminology

Equality information: can include information about the protected characteristics of staff and service users, or evidence used to inform policy development and decision-making such as local or national research on equality issues. It includes both quantitative (numerical) and qualitative (descriptive) information. Qualitative information may focus more on factors which are more difficult to measure or represent in quantitative terms.

Services: means the services and other functions carried out by a public authority (or by an external organisation if they are contracted out). This includes the exercise of powers, such as enforcement and other functions such as use of statutory discretion, planning decisions, conferring qualifications and awarding grants and funding etc. Service users are the people who benefit from or who are affected by these services or functions.

Engagement: is a broad term, intended to cover the whole range of ways in which public authorities interact with their service users and their employees, over
and above what they do in providing services, or within a formal employment relationship. Engagement may be one-off or repeated over a longer period of time. It may be formal or informal. It may be focused on a specific issue, or on service delivery, or workforce issues more broadly.

New common definitions

Direct Discrimination: A person discriminates against another if, because of a protected characteristic, that person treats the other less favourably than they treat or would treat others.

Indirect Discrimination: A person discriminates against another if they apply to another a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of the other person(s).

Disability Discrimination: A person discriminates against a disabled person if that person treats the other unfavourably because of something arising in consequence of their disability, and they cannot show that the treatment is a proportionate means of achieving a legitimate aim.

Disability: A person has a disability if they have a physical or mental impairment and the impairment has a substantial and long-term adverse effect on their ability to perform normal day-to-day activities. ‘Long-term’ means that the effect of the impairment has lasted or is likely to last for at least twelve months and ‘normal day-
to-day activities’ include everyday things like eating, washing, walking and going shopping.

Harassment:  A person harasses another if that person engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect in violating the others dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.

Victimisation: Victimisation takes place where one person treats another badly because they, in good faith, have taken, intends to take or have supported any action taken for the purposes of the Act.

The Human Rights Act 1998

The Human Righst Act 1998 has a direct bearing on the provision of services.

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Jonathan Heath
the Equality Academy
Tel:  0333 800 5141 / 07977 540524
email:  jonathan@theequalityacademy.com