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An employer's guide to equal opportunities

Equal Opportunities legislation is contained in the Equality Act 2010 (the Act) This guide provides a summary of the law on discrimination with the exception of equal pay which will be dealt with separately. See Introduction to Equal Pay.

In conjunction with the Equality Act 2010, the Equality and Human Rights Commission (EHRC) has also published statutory Codes of Practice (COP). The COP helps to clarify the Equality Act 2010 and how it applies in practice. In considering a discrimination claim, the Tribunal may have regard to whether or not the COP has been followed.

Who is covered?

It is important to note that discrimination legislation has wider application than just to an organisation’s employees. The following are some of the groups covered by the legislation:

The grounds for discrimination — the protected characteristics

The Act sets out the basis upon which claims for discrimination can be made. Certain groups are given particular protection by the Act. This protection extends to individuals who have particular protected characteristics. The protected characteristics are:

  • Age;
  • Disability;
  • Gender reassignment;
  • Marriage and civil partnership;
  • Pregnancy and maternity;
  • Race;
  • Religion or belief;
  • Sex; and
  • Sexual orientation.

Age

The reference to a person having this protected characteristic is a reference to a person of a particular age group.

Disability

Disability is defined in section 6 of the Act, which states that a person has a disability if they have a physical or mental impairment which has a long term and substantial adverse effect on their ability to carry out normal day to day activities.

This can include circumstances where an employee has had a disability in the past, even though they no longer have the disability. Medical treatment received by the person must be disregarded in assessing the effect that impairment has. This is with the exception of people with a sight impairment which is corrected by the use of glasses or contact lenses.

Some conditions are deemed to automatically be disabilities under the Act. These are:

  • Blindness or partial sightedness provided that this has been certified by a consultant ophthalmologist;
  • Cancer, HIV infections and multiple sclerosis; and
  • Severe disfigurements.

Other conditions are specifically excluded from being a disability. The excluded conditions are as follows:

  • An addiction to alcohol, nicotine or any other substance;
  • A tendency to set fires;
  • A tendency to steal;
  • A tendency to physically or sexually abuse others;
  • Exhibitionism;
  • Voyeurism;
  • Tattoos and body piercings; and
  • Seasonal allergic rhinitis, i.e., hay fever.

The list of normal day-to-day activities that may be affected by a disability, as provided under the Disability Discrimination Act 1995, has not been included in the Equality Act 2010. To show that the adverse effect of an impairment is substantial, the effect has to be more than “minor or trivial”.  If a person has been diagnosed with a progressive condition and the prognosis is that the impairment will have a substantial adverse effect, the person will be viewed as disabled even though the condition is yet to have that effect. Similarly, if an impairment ceases to have a substantial adverse effect but the effect is likely to recur, then the impairment will be treated as having a substantial adverse effect.

The effect of the impairment will only be considered long term if it has lasted 12 months, is likely to last at least 12 months or it is likely to last for the rest of the person’s life.

The Government has produced guidance on matters to be taken into account in determining whether someone is disabled. For more specific advice on the definition of disability, you should contact your HR Rely advisor.

Gender reassignment

People who are considered as having this protected characteristic are those who are proposing to undergo, are undergoing or have 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. It is no longer the case, therefore, that to be protected, a person has to be undergoing medical treatment; the protection can apply much earlier in the reassignment process.

Marriage and Civil Partnership

A person has the protected characteristic if they are married or in a civil partnership.

Pregnancy and maternity

It is unlawful to subject a woman to unfavourable treatment during the protected period. The protected period is the period from when the pregnancy begins until the end of the additional maternity leave period, or when the employee returns to work if that is earlier, except where the employee is not entitled to ordinary and additional maternity leave, in which case, the period ends two weeks from the end of the pregnancy. The protected period in relation to women undertaking IVF treatment is more complicated and is set out in our guidance on IVF treatment.

Race

Race is defined as including colour, nationality, ethnic or national origins. 

Nationality is the specific legal relationship between a person and state through birth or naturalisation.

In terms of ethnic origins, the Codes of Practice state that the provisions of the Act only apply where a person belongs to an “ethnic group” as defined by the courts. There are two essential characteristics which an ethnic group must have: they are a long shared history and a cultural tradition of its own. In addition to this, the ethnic group must have one or more of the following: a common language; a common literature; a common religion; a common geographical original; being a minority; or an oppressed group. The courts have determined that the following are protected ethnic groups:  Sikhs, Jews, Romany Gypsies, Irish Travellers, Scottish Gypsies and Scottish Travellers.

National origins must have identifiable elements, both historic and geographic, which at least at some point in time indicate the existence or previous existence of a nation.

Religion or belief

This includes any religion and any religious or philosophical belief and can include a lack of religion or belief.

The Codes of Practice provide that it is for the courts to determine what constitutes a religion, but the term includes commonly recognised religions such as Baha’i faith, Buddhism, Christianity, Hinduism, Islam, Jainism, Judaism, Rastafarianism, Sikhism and Zoroastrianism.  The religion must have a clear structure and belief system. Examples of philosophical beliefs include Humanism and Atheism and, in one case, being anti-fox hunting.

For a philosophical belief to be protected, the COP provides that the belief must:

  • Be genuinely held;
  • Be a belief as opposed to an opinion or viewpoint;
  • Be a belief as to a weighty and substantial aspect of human life and behaviour;
  • Contain a certain level of cogency, seriousness, cohesion and importance; and
  • Be worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others.

Sex

This relates to a person’s gender and does not include gender reassignment or sexual orientation. These are specific protected characteristics themselves.

Sexual orientation

Sexual orientation means a person’s sexual orientation towards a person of the same sex (homosexual), opposite sex (heterosexual) or either sex (bisexual).

Types of discrimination

The Act provides for various forms of discrimination which are unlawful. They are as follows:

  • Direct discrimination;
  • Combined discrimination;
  • Indirect discrimination;
  • Discrimination arising from disability;
  • Duty to make reasonable adjustments (disability);
  • Pregnancy and maternity discrimination;
  • Gender reassignment discrimination;
  • Harassment; and
  • Victimisation.

Direct discrimination

The Act provides that 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.

To bring a claim of direct discrimination, the claimant would have to show that they have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different to theirs, although they do not need to be identical. The Codes of Practice give as an example a case involving a vacancy for an IT supervisor. 

Two senior IT workers apply for the position, which would be a promotion. One of the workers is English, the other is Scottish. The age, sex, sexual orientation and religion of the workers is the same and neither have a disability. The English worker has more experience, but is not the one to be promoted and brings a claim of discrimination. The circumstances between the English worker and his comparator are sufficiently similar for a valid comparison to be made. In cases of pregnancy and maternity, no comparator is required.

In terms of less favourable treatment on grounds of age, this will not amount to direct discrimination if the treatment is objectively justified, for example, not employing a 16 year old as a van driver because they are not old enough to hold a driving licence. No other form of direct discrimination can be justified. However, an employer may be able to rely on exemptions in the Act that, if applicable, render direct discrimination lawful. For example, it could be argued that a male job applicant was not appointed to a post because being female was an “occupational requirement” (see below).

The motive of the discriminator is irrelevant. It is irrelevant that an employer did not intend to directly discriminate against a person.

The less favourable treatment must be “because of a protected characteristic”. This is a change from previous discrimination legislation and extends the legislation to allow claims to be brought on the basis of association and perception. This means that although the claimant might not have the protected characteristic, if they have been treated less favourably because they associate with a person who has a protected characteristic or because they have been wrongly perceived as having that characteristic, then they may be able to commence a claim of direct discrimination.

An example of discrimination by association would be where a worker is treated less favourably because they have been seen socialising with someone of a particular religion.

An example of discrimination by perception would be where a worker is not recruited because they are believed to be over 55 years of age, even though they are only 50 years old.

Indirect discrimination

A person (A) indirectly discriminates against another (B) in relation to a protected characteristic if:

  • A applies to B a provision, criterion or practice (PCP); or
  • B has a protected characteristic.

The PCP is applied or would apply to persons with whom B does not share the protected characteristic but puts or would put persons of B’s group at a particular disadvantage when compared with persons with whom B does not share the characteristic; and

  • It puts, or would put, B at a disadvantage, and
  • A cannot show it to be a proportionate means of achieving a legitimate aim.

The COP explains that a PCP would include formal or informal policies, practices, rules, criteria, conditions, qualifications or provisions. In British Airways PLC v Stamer (2005), the EAT held that a one off or discretionary management decision could be a provision for indirect discrimination purposes. As the provision covers not only criteria that does put B at a disadvantage but also those that “would put” B at a disadvantage, this includes decisions to do something in the future.

A disadvantage does not have to be something that causes a person loss, it could include denial of an opportunity or choice, a rejection or exclusion or deterrence and it is ultimately a question of fact for the Tribunal.

Indirect discrimination is group based. The PCP must cause people sharing a protected characteristic to be at a disadvantage. To identify a group disadvantage it will be necessary to identify a pool for comparison. This will include those who are subject to the disadvantage and those who are not. The pool will depend on the specific nature of the PCP, e.g., if a recruitment policy was being challenged the pool would be all those who would be eligible for the job but for the policy in question (University of Manchester v Jones (1993)). In Faukland v the Chief Constable of the Hampshire Constabulary (2005), the whole work force was considered to be the correct pool. This was where the policy being challenged applied across the entire organisation.

Even if the PCP does put a person at a disadvantage because of their protected characteristic, this will not amount to indirect discrimination if the employer is able to objectively justify the PCP. To do this, the employer would have to show that the requirement is a proportionate means of achieving a legitimate aim. An employer would have to provide evidence not just in support of the legitimate aim but that the means of achieving it is proportionate. This involves a balancing exercise weighing up the discriminatory impact of the provision on the individual against the employer’s reasons for applying it. If an employer could have achieved the same end result in a non-discriminatory or less discriminatory manner, then they are unlikely to be able to justify the treatment.

There have been several cases looking at whether cost alone can be looked on as justification. The EAT has indicated that cost alone cannot justify indirect discrimination. In effect, the employer “cannot simply argue that discrimination is cheaper than avoiding discrimination.” (Redcar and Cleveland Borough Council v Bainbridge and others (2007)). However, this view has been challenged in a subsequent EAT judgement. There is some uncertainty in the law on this point; if cost is to be used to justify a PCP, advice should always be sought from your HR Rely advisor.

An example of a PCP which is likely to be discriminatory is a minimum height requirement for employment such that only persons who are one and a half metres tall will be considered for a particular role. Although applied to both sexes and all racial groups, this puts or would put women and some racial groups at a disadvantage. The question is whether the employer can justify the requirement, which is unlikely.

Other examples that might apply in the workplace include requiring flexibility in working hours as this may discriminate against women. Similarly, requiring employees to work Fridays after dusk or on Sundays may discriminate against particular religious groups.

Harassment

This is covered in our Guide to Harassment and Bullying which can be found at Guidance on Dealing with Harassment and Bullying.

Victimisation

Those alleging or bringing a claim of discrimination or others who support a person in doing so, including giving evidence on their behalf, are given specific protection under the Act. This provides that it is unlawful to treat a person less favourably because they have, or are believed to have done any of these things. Examples of victimisation might include a refusal to provide training, non payment of a bonus, or refusal to agree to a holiday request. This is a non-exhaustive list and any act by the employer to the employee’s detriment up to and including dismissal might amount to victimisation.

This also applies once an employee leaves the employment, so a refusal to provide a reference because the person brought a discrimination claim whilst employed or subsequently would amount to an act of victimisation under the Act. Victimisation could even apply to an applicant for a post if they were refused employment on the grounds that they had supported an earlier claim.

This protection for individuals does not apply if the allegation made is both false and in bad faith.

Disability discrimination

The definition of disability (see above) is unchanged in the Equality Act 2010 and the provisions as to direct and indirect discrimination (see above) and harassment and victimisation (see below) still apply to persons with a disability. However, the Equality Act 2010 has extended the concept of indirect discrimination to apply to persons with a disability as well as introducing other concepts which are peculiar to this area of equal opportunities.

There is additional protection in that it is unlawful to treat a person unfavourably “because of something arising in consequence” of that person’s disability unless that treatment can be justified. The test of justification is the same as that for indirect discrimination, i.e., can the treatment be shown to be a proportionate means of achieving a legitimate aim?

The difference between this and direct discrimination can be explained as follows.  Direct discrimination would arise where an employer dismissed an employee simply because they had disability, e.g., multiple sclerosis. Normally, the employee would have to have a comparator but to bring a claim of disability related discrimination, the employee does not need a comparator.

Disability related discrimination would occur, using the COP example, where an employer dismisses an employee because she has had three months’ sick leave.  The employer is aware that the employee has multiple sclerosis and most of her sick leave is disability related. The employer’s decision to dismiss is not because of the employee’s disability itself, but the employee has been treated unfavourably because of something arising in consequence of her disability. The question, therefore, remains as to whether the employer can objectively justify the treatment. An employer is never able to justify direct discrimination.

However, for this strand of discrimination to apply, the employer must know or have been reasonably expected to know that the employee is disabled. An employer will be deemed to have knowledge if their agency or employee, e.g., occupational health advisor or HR officer, knows that the employee or potential employee has a disability. This provision as to knowledge similarly applies to the duty to make reasonable adjustments.

Duty to make reasonable adjustments

It will be very difficult for an employer to justify potentially disability-related discrimination if it has failed to comply with a duty to make reasonable adjustments. This duty arises if the employer’s provision, criterion or practices or a physical feature puts a disabled person at a substantial disadvantage compared with non-disabled employees, then the employer is under a duty to take such steps as are reasonable to help avoid the disadvantage.

The Equality Act 2010 has introduced a third element to this duty. It provides that where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage compared with non-disabled employees, then the employer must take such steps as are reasonable to provide the employee with that auxiliary aid.

The duty to make reasonable adjustments applies not just during employment, up to and including dismissal but in the recruitment stage as well. Examples of adjustments that can be made include changing an employee’s working hours, providing application forms in Braille or on audio tape, modifying equipment and providing supervision etc. This list is not exhaustive.

The COP provides that in assessing whether the adjustment is reasonable, the adjustment should be assessed having regard to the following:

  • The effect that the adjustment would have on the disabled person’s disadvantage;
  • The extent to which it is practicable for the employer to make the adjustment;
  • The cost to the employer of making the adjustments;
  • The extent of the employer’s financial and other resources;
  • What financial and other assistance is available to the employer for the adjustment; and
  • The nature of the employer’s activities and its size.

If an employer fails to make a reasonable adjustment or fails to make an adjustment in a timely manner, an employee or potential employee could bring a claim before the Tribunal specifically on this point. It is also important to note that an agency worker is also entitled to have reasonable adjustments made by their employer (the agency) and the end user (i.e., the principal) to avoid them being put at a substantial disadvantage compared with non-disabled people.

Pre-employment health enquiries

The Equality Act 2010 brought in a new provision making it unlawful, except in certain circumstances, to make enquiries about disability and health prior to an offer of employment being made. Further information on this can be found in our guide to recruitment. If an employer makes such enquiries in breach of the Act, then enforcement of this particular provision is by the Equality and Human Rights Commission. However it does not stop an employee or potential employee relying on such enquiries being made to support a claim for disability discrimination.

Pregnancy and maternity discrimination

The Equality Act 2010 provides that it is discriminatory to treat a woman unfavourably:

  • in the protected period because of her pregnancy or because of illness suffered by her as a result of the pregnancy (unfavourable treatment outside of the protected period would fall to be dealt with as sex discrimination rather than this specific aspect of the Act);
  • because she is on compulsory maternity leave; or
  • because she is exercising or seeking to exercise, has exercised or sought to exercise the right to ordinary or additional maternity leave.

There is no need for the woman to have a comparator to bring a claim in this regard and such discrimination can never be justified. The pregnancy or maternity does not have to be the only reason for the treatment, but it must be an important factor or effective cause.

In terms of general rights of pregnant women, please refer to our guide to maternity and guide to IVF treatment.

Gender reassignment discrimination

There is a specific provision under the Equality Act 2010 which makes it unlawful to treat someone less favourably in relation to absences from work due to gender reassignment. It is direct discrimination to treat someone in relation to such absences less favourably than they would have had the employee been absent on grounds of sickness or to treat the employee less favourably than it would if the employee had been absent for some other reason and it was not reasonable for it to do so. Gender reassignment absence could include absence to attend counselling, a Gender Identity Clinic or related medical appointments.

Types of discriminatory acts

It is unlawful for an employer to discriminate on any of the above grounds in all of the following areas:

  • In its recruitment process from the job advert through to the selection decision (Guide to Recruitment);
  • In the terms on which it offers employment, benefits, facilities and services to its employees;
  • In the access to, provision of or decision to promote, transfer or train;
  • By subjecting an employee to any disadvantage;
  • In its decision to dismiss
  • In the provision of references.

It is also unlawful for an employer to instruct a third person to discriminate. 

Occupational qualifications

In certain circumstances, it is lawful for an employer to require a job applicant or a worker to have a particular protected characteristic, provided that certain statutory conditions are met. This is known as an Occupational Qualification (OQ). To be able to defend a claim of direct or indirect discrimination by relying on the OQ defence, the employer must be able to show that having regard to the nature or context of the work:

  • the requirement is an occupational requirement;
  • the application of the requirement is a proportionate means of achieving a legitimate aim; or
  • the applicant or worker does not meet the requirement or (except in the case of sex discrimination) the employer has reasonable grounds for not being satisfied that the applicant or worker meets the requirement.

The COP provides examples where the OQ may be used. These include requiring a female employee for a women’s refuge which lawfully provides services to only women. 

Positive action

The Equality Act 2010 allows employers to voluntarily take positive action measures to improve equality for people who share a protected characteristic. The action taken must be proportionate. Where the employer reasonably thinks that people who share a protected characteristic:

  • experience a disadvantage connected to that characteristic, then they may take positive action to overcome or minimise that disadvantage;
  • have needs that are different from the needs of people who do not share that characteristic then they may take action to meet those needs; or
  • have disproportionately low participation in any activity compared to others who do not share that protected characteristic, then they may take action to enable or encourage such persons to participate in that activity.

Examples of positive action include targeting advertising at specific disadvantaged groups, providing exclusive training to the target group specifically aimed at meeting particular needs, e.g.. English language classes for employees whose first language is not English. 

In April 2011, an additional provision came into force on positive action. This allows employers to select for recruitment or promotion of a person with a particular protected characteristic where the employer reasonably thinks that persons with that particular protected characteristic are under-represented or at a disadvantage. In this situation where the employer has other candidates and the person to be selected is “as qualified” as the others in the recruitment process, they can be selected in preference to other candidates.

It is important to note that the Equality Act 2010 does not, however, permit positive discrimination. The Government has published a guide to positive action.

Instructing, causing, inducing or unknowingly helping unlawful acts

The Act sets out specific provisions protecting employees and other workers from being forced by an employer to participate in a discriminatory act. The Act states that A must not:

  • Instruct B to do in relation to C anything that contravenes the Act;
  • Cause B to do in relation to C anything that contravenes the Act; or
  • Induce B, directly or indirectly, to do in relation to C anything that contravenes the Act.

In these cases, both B and C have potential claims against the employer, A.

An example of an instruction to discriminate might be if an employer instructed an employee not to accept orders from Muslim customers. In this case, the employee would have a claim for discrimination against the employer if they suffered detriment as a result of refusing to comply with the instruction. The customer might also have a claim under the service provision part of the Act.

An example of causing an employee to discriminate might be where an employer speaks to an employee and indicates that if they were to recruit a disabled person to their team, it would reflect badly on them.

The provisions regarding “knowingly helping in an unlawful act” relate to a situation where A knowingly helps B to do something in contravention of the Act. In these circumstances, both A and B are potentially liable. For the “help” to be unlawful, the helper must know that discrimination, harassment or victimisation is a probable outcome even though they do not have to intend that discrimination, harassment or victimisation should occur. The helper can be liable even if the help is not substantial or productive as long as it is not negligible. 

Liability and enforcement

A person who believes that they have been unlawfully discriminated against may make a complaint to the Employment Tribunal. The time limit for bringing a complaint is three months from the date of the act complained of, but where the act is a “continuing” act, then three months is calculated from the date the discriminatory act ceased. The Tribunal has jurisdiction to hear claims that are out of time when it considers it “just and equitable” to do so.

A claim can be brought against the employer for acts committed by its employees in the course of their employment. To avoid liability for such acts, the employer would have to show that the employee was either not acting in the course of their employment or that it, the employer, had taken all reasonable steps to prevent the act complained of. It would be for the Tribunal to decide whether the employer had demonstrated it had taken “all reasonable steps” but as a minimum, the employer should be able to show that it had an equality policy, harassment and bullying policy, had provided equal opportunities training and effectively dealt with the employee’s complaints. The person bringing a complaint may choose not just to name the employer as a Respondent, but the employee and others that they allege committed the discriminatory act. This can include individual managers who have failed to take steps to prevent the discrimination or to investigate complaints properly.

The burden of proof in discrimination claims lies with the Claimant to put forward sufficient facts from which a court could decide that there was discrimination in the absence of an explanation by the Respondent (normally the employer). If this is done, then the burden of proof shifts to the Respondent to show that the act was not discriminatory.

As of 6 April 2014, the statutory discrimination questionnaire procedure will be abolished. The procedure enabled a Claimant, or potential Claimant, to serve on a potential respondent a prescribed Questionnaire in order to obtain information on the issues of concern. The questions and answers under the statutory questionnaire procedure were admissible as evidence and a Tribunal could draw adverse inferences from a failure to respond to the questionnaire within the prescribed 8 week time period and/or from any evasive or equivocal answers. The removal of the statutory procedure will not prevent a Claimant, or potential Claimants, asking questions of a potential respondent, the response to which could be relevant to any subsequent discrimination claim. ACAS has published guidance on asking and responding to questions of discrimination in the workplace. If you receive a request to respond to discrimination questions from any employee or potential employee, you should seek assistance from your HR Rely advisor prior to responding.

If a person is successful in their claim, the Tribunal may make any of the following awards:

  • A declaration regarding the rights of the Claimant and/or Respondent;
  • An order of compensation for any loss suffered by the Claimant. This may include: loss of actual earnings; future earnings, including “career damage” losses for bringing a claim; personal injury; damages for injury to feelings; and aggravated damages if the Tribunal believes the Respondent acted in a high-handed or malicious, insulting or oppressive manner; and/or
  • Make an appropriate recommendation. This is not limited to recommending steps to reduce the adverse effect of the discriminatory act suffered by the Claimant, but may include others who may be affected. For example, retraining staff, making public selection criteria for staff transfers, introducing an equal opportunities policy. Failure to abide by a recommendation may be used by other employees to support similar discrimination claims;
  • Interest on any award of compensation; and
  • Costs, if appropriate.

It is important to note that a person who believes that they have been discriminated against may also bring an unfair dismissal claim if the alleged discriminatory act is dismissal or if they can argue they have been constructively dismissed; that is they have resigned as a result of the discriminatory act. Legal Guidelines for a Fair Dismissal.

The EHRC has been given further powers under the Equality Act 2010 which include the following:

  • Applying to the courts for an injunction if they think a person is likely to commit a discriminatory act;
  • Enforcing a breach of the pre-employment health and disability enquiries prohibition; and
  • Taking action even if no identifiable individual has been affected by an unlawful act, e.g., challenging an indirectly discriminatory provision, criterion or practice.

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