Dealing with Discrimination -

background paper

Please use this paper to help with the case studies

1

Equality Act 2010 Key concepts

9 Protected characteristics:• Age (s 5)• Disability (s 6)• Gender reassignment (s 7)• 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)

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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

3

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’

4

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.

5

Marriage and 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.

6

Race (s.9)

Race includes:

• colour;

• nationality;

• ethnic or national origins.

7

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

• A ‘philosophical belief’ must not be incompatible with human dignity or conflict with fundamental rights of others.

• Includes a lack of belief/religion

8

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

9

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.

10

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

• During the protected period

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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)

• Gender reassignment absence from work (s16)• Pregnancy and maternity unfavourable treatment (s18)

• Equality of terms (ss 64-80)12

Direct Discrimination

Direct discrimination occurs when a person treats another less favourably than they treat or would treat others because of a protected characteristic (s13)

Direct discrimination cannot be justified except in age discrimination

We are protected from direct discrimination and harassment because of our association with others or because of the perception of the person discriminating.

Slide Number 13

Indirect discrimination

Indirect discrimination may occur when an apparently neutral policy (provision, criterion or practice) is applied which puts people sharing a protected characteristic at a particular disadvantage.

The complainer has to be affected

This can be justified if it is “a proportionate means of achieving a legitimate aim”

Slide Number 14

Harassment

Harassment occurs when a person engages in unwanted conduct which is related to a relevant protected characteristic and which has the purpose or the effect of:

• violating another’s dignity; or

• creating an intimidating, hostile, degrading, humiliating or offensive environment for another.

Slide Number 15

Harassment

In deciding whether conduct amounts to harassment, each of the following must be taken into account:

• the perception of person who may have been harassed – a subjective test

• whether it is reasonable for the conduct to have that effect - an objective test

• the other circumstances of the case;

Harassment includes association and perception

Slide Number 16

Victimisation

Victimisation occurs when a person is subjected to a detriment because they have done a 'protected act’ (of complaining about discrimination) or because it is believed that they have done or may do a protected act in the future.

17

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.

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What is reasonable?

• Would adjustment be effective;

• How practicable would it be to 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.

19

Discrimination arising from disability

Discrimination arising from disability occurs when a disabled person is treated unfavourably because of something arising in consequence of the disabled person’s disability

and it cannot be shown to be a proportionate means of achieving a legitimate aim

It must known, or be reasonably expected to be known, that the person has the disability

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Public sector equality duties

• General duty on public bodies to have due regard to three ‘needs’ when exercising their public functions1 Eliminate discrimination,

2 advance equality of opportunity,

3 foster good relations

• 8 specific duties for listed public bodies to help them meet the general duty

Slide Number 21

These slides are a summary of some key concepts of the Equality Act 2010 and are not exhaustive.

They are provided as an aid to ‘Dealing with Discrimination’ training.

www.equalityhumanrights.com

Slide Number 22