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UK Law: The Equality Act 2010 four months on and the Not-For-Profit Sector

Over the past 40 years piecemeal legislation had grown up to remove discrimination and less favourable treatment in the workplace, including:

 

The Equal Pay Act 1970

The Sex Discrimination Act 1975

The Race Relations Act 1976

The Disability Discrimination Act 1995

The Employments Equality (Religion or Belief) Regs 2003

The Employment Equality (Sexual Orientation) Regs. 2003

The Employment Equality (Age) Regs. 2006

 To a large extent, the Equality Act 2010 consolidates and harmonises existing equality legislation. The Act tries to smooth out difference between the existing legislation and introduces some new principles, for example the obligation on public authorities to promote equality, and the banning of discrimination based on caste.

 

What is not covered in the Act:

• Less favourable treatment on the basis of being employed part time
• Less favourable treatment on the basis of being employed on a fixed term contract
• A general prohibition against bullying in the workplace

 

What are ‘Protected Characteristics'?

The Equality Act consolidates and extends discrimination law to cover:

• Age, disability, marriage and civil partnership, sex, gender reassignment, pregnancy and maternity, sexual orientation, race, religion or belief.
• These will all be ‘Protected Characteristics'.

 

Direct discrimination

Section 13 defines direct discrimination as follows: ‘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.'

 

Thus, the Act retains the requirement for a real or hypothetical comparator who does not share the relevant protected characteristic (except in relation to pregnancy and maternity discrimination).

 

Indirect discrimination

Indirect discrimination is when you apply a requirement which indirectly affects a larger proportion of one group with a protected characteristic than another.

 

For example:

• More women than men want to work part time, particularly after childbirth. If you refuse to allow a woman to return on a part time basis after maternity leave, this may give rise to indirect discrimination.
• If you say that only people with 10 or more years experience may apply for a position, this may indirectly discriminate against younger employees (unless you can justify the requirement as being a proportionate means of attaining a legitimate aim)

 

Objective Justification:

The Equality Act provides a standardised test for objectively justifying indirect discrimination and direct age discrimination if it is a ‘proportionate means of achieving a legitimate aim'.

 

Discrimination by Perception:

The Act covers so-called ‘perceptive' discrimination; that is, discrimination because of a person's perceived. For example, John lives in Brighton and went to Public School. His colleagues all assume that he is gay and make fun of him as a result. As it happens John is straight. John can still claim protection under the Equality Act, even though he does not have the protected characteristic (namely being gay).

 

An exception is made in respect of marital or civil partnership status. You can only claim if you actually are married or in a civil partnership, not because people assume you are.

 

Harassment:

As before, workers cannot harass someone for having a protected characteristic, for example by making jokey sexist comments or sending jokey ageist emails.

 

Employers will be liable if they knowingly fails to protect employees from repeated harassment by a third party such as a customer or a supplier. This is now standardised across all protected characteristics.

 

Under S.26(1)(a), a person (A) harasses another (B) if A engages in unwanted conduct ‘related to a relevant protected characteristic' which has the purpose or effect of violating B's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

 

Victimisation:

It is unlawful to victimise someone as a result of having made a complaint about discrimination, even if it turns out that you do not uphold their complaint. The victim does not have to show less favourable treatment than other persons in the same circumstances.

 

Instructing discrimination:

It is unlawful for employers to instruct or induce someone to discriminate against, harass or victimise another person, by reason of their protected characteristics, even when the instruction is not carried out. 

 

Burden of Proof:

Firstly the claimant (normally employee) must establish  the facts from which (in the absence of an adequate explanation) it can be concluded that unlawful discrimination has taken place. 

 

If so, the burden of proof then shifts to the employer to demonstrate if he can, (on the balance of probabilities), that there was an adequate "non-discrimination" explanation for what took place. If he fails to demonstrate this then the tribunal is required to assume that he is "guilty".

 

Comparators & Disability:

Other than in less favourable treatment related to pregnancy, the claimant has to demonstrate that they are treated less favourably as compared to someone without the Protected Characteristic.

 

In disability claims all sorts of problems arose following the case of London Borough of Lewisham v Malcolm HL 2008 which made it almost impossible to identify an appropriate comparator. These problems have now been swept away. In relation to disability:

 

A person (A) discriminates against a disabled person (B) if:

(a) A treats B unfavourably because of something arising in consequence of B's disability, and

(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim" (Equality Act 2010 s.15)

 

However this does not apply if A did not know, and could not reasonably have been expected to know, that B had the disability.

 

Practical Questions:

 

Are we liable for claims of discrimination brought by volunteers against us?

In X v Mid-Sussex CAB the Court of Appeal held in February 2011 that a CAB volunteer and who had no contract with the CAB could not pursue a claim under the Disability Discrimination Act 1995 (DDA) or under the Equal Treatment Framework Directive. The court rejected the argument that volunteers were caught by the reference to "occupation" in the Directive or the DDA.

 

This case applies equally to the Equality Act 2010. The judgment has brought relief to charities and other voluntary sector bodies that were concerned about the extra burden that enhanced rights for volunteers would bring. This may yet be appealed to the Supreme Court.

 

However:

-          Although Volunteers with no contractual obligation to personally do work will not be covered by the Equality Act.

-          Unpaid workers who are subject to a legally binding contract to ‘personally do work' may well be covered by the Equality Act.

-          People on work experience or a vocational training placement are likely to be covered by the Act as well.

 

(s56(6) and 83(2), Equality Act 2010).

 

Our Care Workers are occasionally subjected to racist abuse by users who come into our care centre. Are we liable?

Employers will be liable if they knowingly fail to protect employees from repeated harassment by a third party such as a user, customer or a supplier if it happens on at least three occasions and the employer knows about it but does not take reasonable steps to prevent it.

 

Third party harassment was already unlawful under sex discrimination rules but as from 1st October 2010 the rules are extended to cover the other protected characteristics.

 

In other words, if a user of your service repeatedly abuses a Care Worker on two or more occasions, you will be liable if you fail to take such steps as would have been reasonably practicable to prevent the third party from doing so.  (Equality Act 2010 s.40(4).

 

Appropriate action might be withdrawing the service from a particular user or issuing zero tolerance notices etc.

 

Can a religious youth centre refuse to employ someone who is gay on religious grounds, or because they are not of a certain faith?

It is of course unlawful to discriminate against someone by reason of their sexual orientation, or religious belief.

 

However the Equality Act 2010 provides for limited exceptions in favour of organised religions which impose one or more of specified requirements the imposition of which would otherwise be unlawful.

 

This is however provided always that application of the requirement "engages the compliance or non-conflict principle" (Equality Act 2010 sch 9, Part 1 para 2(1)).

 

The specified requirements are:

• a requirement to be of a particular sex;
• a requirement not to be a transsexual person;
• a requirement not to be married or a civil partner;
• a requirement not to be married to, or the civil partner of, a person who has a living former spouse or civil partner;
• a requirement relating to circumstances in which a marriage or civil partnership came to an end;
• a requirement related to sexual orientation.

 

So restricting particular employment to a person who complies with those requirements can be lawful as long as either that imposing the restriction is done:

• "so as to comply with the doctrines of the religion" ("the compliance principle" - sch 9, Part 1 para 2(5)) or is done;
• "so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers" (the "non-conflict principle" - sch 9, Part 1 para 2(6)).

 

However the requirement must be crucial to the post, and not merely one of several important factors. It also must not be a sham or pretext.

 

Regarding other requirements relating to religion or belief, apply only where an otherwise unlawful act is a "a proportionate means of achieving a legitimate aim".

 

An exception from the normal rules allows an employer with "an ethos based on religion or belief" to require that an employee be of a particular religion or belief if that can be shown to be an "occupational requirement" (an undefined expression) and application of that requirement is "a proportionate means of achieving a legitimate aim" (see Equality Act 2010 sch 9, Part 1 para 3).

 

A religious-based youth centre refusing to employ someone because they are gay is unlikely to be able to rely on the non-conflict principle, or to say that it's an occupational requirement that is a proportionate means of achieving a legitimate aim.

 

If the purpose of the youth centre were to promote (say) Christian belief amongst young people, it might well be a proportionate means of achieving a legitimate aim to make being a Christian an occupational requirement of the position.

 

Can a women's refuge advertise for women- only counsellors?

An employer does not contravene the Equality Act by requiring a candidate to have a particular Protected Characteristic, provided the employer can show that having regard to the nature or context of the work—

 

• it is an occupational requirement,
• the application of the requirement is a proportionate means of achieving a legitimate aim, and
• the person to whom the Employer applies the requirement does not meet it (or the employer has reasonable grounds for not being satisfied that the person meets it).

 

The woman's refuge is likely to be able to establish that employing women-only counsellors is a proportionate means of achieving a legitimate aim (given that the women in the refuge have probably been traumatised by men in the first place).

The same is unlikely to apply if the same refuge wanted to employ a back-office administrator who does not come into contact with the women in the refuge.

 

Can we just recruit young adults to work at your Youth Centre?

It seems unlikely that a youth centre would be able to persuade an Employment Tribunal that it is a proportionate means of achieving a legitimate aim to employ youth workers of not more than (say) 35 years old.

However each case turns on its own facts and if a youth centre were to run such an argument, they would probably have to produce significant documentary evidence to back up that contention.

Do we have to positively encourage equality?

The Equality Act is in general designed to prevent unlawful discrimination, rather than positively promote equality as such.

 

However sections 1 &  149 of the Equality Act incorporates a new single ‘Public Sector Equality Duty' under which a public authority must, in the exercise of its functions, have due regard to the need to—

• eliminate discrimination, harassment, victimisation and any other conduct that is prohibited under the Act;
• advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
• foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

 

An organisation which is not a public authority but who exercises public functions must have due regard to the matters mentioned in subsection. Therefore any NGO's delivering services on behalf of the pubic sector would be likely to have to also do so.

 

These provisions are not yet in force. However the Equality & Human Rights Commission reports that final regulations setting out the specific duties were published on 12 January 2011. The Commission will publish a statutory code of practice on the equality duty later in the year

 

Therefore if your organisation carries out functions on behalf of the public sector you will need to have regard to those obligations and tackle prejudice, and promote understanding.

 

We feel we don't have enough Afro-Caribbean staff. Can we positively discriminate to recruit more staff from that group until we have (say) 10%?

As a general rule, positive discrimination in favour of a particular category of persons is the same as discrimination against those not in that category. For example, if you positively recruit women, you discriminate against men.

 

However there is a specific exception in favour of persons suffering from a disability. Equality Act 2010 provides that it is not discrimination for the purposes of the Act to treat disabled persons more favourably than others.

 

It used to be the case that a limited degree of positive action in relation to access to facilities for training for particular work and in relation to encouragement "to take advantage of opportunities" was ok.

 

The Equality Act 2010 goes a little further. When the relevant provisions are brought into force (probably April 2011) it will in some circumstances allow an employer to give preference in recruitment and/or promotion to a person who has one of the protected characteristics over a person who does not if there is a "tie break" situation where both equally qualified for the post on offer.

 

However how often can you say that two candidates are equally well qualified? Possibly if you have a method of scoring candidates answers at interview, and if two candidates have the same numerical score, you can then positively discriminate. Most employers will want to avoid getting into the problems that that kind of decision may throw up though.

 

We need our staff to actively participate in sports & leisure activities with young people. Can we ask about health and fitness at the recruitment stage?

The basic position is that with a few necessary exceptions Equality Act 2010 s.60 makes it inappropriate for an employer to ask a job applicant any health related questions before offering work to the job applicant.

 

Merely asking questions about the job applicant's health is not unlawful disability discrimination but anything the employer does in reliance on information given in response to such questions may be. While merely asking the question is not disability discrimination it may still be unlawful under Equality Act 2010.

 

If an unsuccessful job applicant brings a discrimination complaint to an employment tribunal against the hoped for employer, the onus will be on the employer to show that they did not discriminate against the job applicant because of any disability from which the job applicant may suffer.

 

The common practice of asking job applicants to complete a health questionnaire as part of the job interview process is thus now generally dangerous and is to be avoided.

 

The Equality Act 2010 s.60 does not apply once an offer of work has been made. Section 60 does not prevent an employer offering a job offer subject to a satisfactory medical examination of the candidate.

 

"Pre-job offer" health questions can be asked:-

• To ascertain whether any reasonable adjustments will have to be made to enable the job applicant to attend an interview;
• To establish whether the job applicant will be able to carry out a function that is intrinsic to the work concerned;
• To monitor diversity;
• If having a particular disability is an occupational requirement for the job (provided that imposing that requirement is a proportionate means of achieving a legitimate aim).

 

In practice it is likely to be unwise to ask applicants about their health and fitness at the recruitment stage other than to ask in general terms whether any reasonable adjustments are required for the interview itself. It might be hard to say that actively participating in sports is an intrinsic part of the job.

 

Our employee refuses to do on-call work anymore because of her disabled child. Can we dismiss her?

In Coleman v Attridge Law [2008] it was held that discrimination against a non-disabled employee because he or she is a carer of, or is otherwise associated with, a disabled person is forbidden by the EC Equal Treatment Framework Directive.

 

Ms Coleman had a disabled son, born in 2002, who has specialised caring requirements. She was employed by Attridge Law, a firm of solicitors and requested flexible working arrangements in order to care for the boy. Attridge Law refused the request.  The Equality Act now prohibits discrimination by association for all Protected Characteristics.

 

If your employee refuses to do on-call work anymore because of her disabled child, you should treat her almost as though she herself were disabled, and consider whether reasonable adjustments can be made to the system of working to accommodate her in her role.

 

Due to the demands of the role, it's not suitable for our staff to work beyond the age of 65. Can we forcibly retire our staff when they reach sixty five?

The Equality Act 2010 still allowed for retirement aged sixty five. However the government has now announced that the Default Retirement Age (DRA) of sixty five is to be phased out between the 6 April 2011 and the 30 September 2011. The draft Employment Equality (Repeal of Retirement Age) Regulations 2011 have now been published.

 

After the 6 April the dismissal of older workers will have to be managed either by discussion and agreement or by formal performance management or other fair procedures. Under the current DRA procedures employers must give between 6 and 12 months' notice of retirement. Retirements notified on or before 5 April 2011 can continue through to completion provided that the following conditions are met:

 

• the DRA procedure is followed correctly (including any request by the employee to stay on being given serious consideration by the employer)
• the person retiring reaches 65 or the normal retirement age (if this is higher) before 1 October 2011. Therefore an employee must be 65 by the 30 September if they are to be retired using the DRA.

 

Employers will not be able to issue notifications of retirement using the DRA after 5 April 2011. Reports that the transitional provisions will continue until April 2012 do not appear to be supported by the ACAS website or the draft regulations. The draft regs seem to imply that employees who are already over 65 are not covered by the transitional provisions, but hopefully that anomaly will be ironed out before they come into force.

 

In theory, Employers will still be able to impose a retirement age if it is a proportionate means of achieving a legitimate aim. However this is unlikely to be any help for the vast majority of employers.  Air traffic controllers and policemen are examples of where retirement can be imposed. Very few charities are likely to be able to justify such retirement.

 

The abolition of the DRA is likely to have a major impact on many employers, particularly when employees do not have adequate pensions in place and may need to continue working for financial reasons. Currently, employers may put up with under-performing members of staff because they will be retiring in a year or two anyway. That will no longer be an option. ‘Performance managing' someone out because of their age is of course unlawful, so employers will need to demonstrate that they apply fair and consistent performance policies regardless of age. Selection for redundancy on the basis of age is also likely to be discriminatory.

 

Hopefully in the vast majority of cases it will still be possible to agree with the employee when they wish to leave, and ACAS suggests that for all employees, workplace discussions may involve informal talks about where they see themselves in the next few years and how they see their contribution to the organization. However the abolition of the default retirement age may well bring about more conflict for employers of older workers that the current regime successfully avoids.

 

We've found out that our employee has unsavoury political beliefs, completely at odds with the ethos of our organisation. Can we dismiss him / her?

The basic position is that the substance of previous law making it unlawful in the employment field to discriminate against a person because of religion or belief remains unchanged by the Equality Act 2010.

 

The criteria for determining what is a 'philosophical belief' are that:

• it must be genuinely held;
• be a belief and not an opinion or viewpoint based on the present state of information available;
• be a belief as to a weighty and substantial aspect of human life and behaviour;
• attain a certain level of cogency, seriousness, cohesion and importance;
• be worthy of respect in a democratic society, compatible with human dignity and not conflict with the fundamental rights of others

 

 A belief in climate change has been held to be covered. (Grainger PLC v Nicholson EAT 2009).  

 

If the ‘unsavoury political belief' was for example racist in nature, it would be unlikely to be worthy of respect in a democratic society, especially if the beliefs promoted unlawful discrimination. Those beliefs would therefore not be protected by the Act, and a dismissal connected with those beliefs for bringing the organisation into disrepute might well be fair and lawful in those circumstances.

 What's our obligation under the Equality Act to users / visitors with disabilities?

Much as before there is an obligation on you to make reasonable adjustments to your premises to allow access to users / visitors with disabilities. The Equality & Human Rights Commission has issued guidance which states because of a protected characteristic, you and anyone working for you:

 Must not refuse to serve someone or refuse to take them on as a client. For example: You must not refuse to serve a woman who is breastfeeding a baby

• You must not say you will not take people with a particular religion or belief as a client.  
• You must not stop offering home visits to disabled people that you find out have a mental health condition if you go on offering them to other clients.
• You must not give someone a service of a worse quality or in a worse way than you would usually provide the service.
• You must not give someone a service with worse terms than you would usually offer. For example: You must not charge someone with a particular protected characteristic a higher deposit when they hire something from you.

You can still tell your customers or clients what standards of behaviour you want from them. For example, behaving with respect towards your staff and to other customers. However if you set standards of behaviour for your customers or clients which have a worse impact on people with a particular protected characteristic than on people who do not have that characteristic, you need to make sure that you can objectively justify what you have done. Otherwise, it will be indirect discrimination.

 For more information see: www.equalityhumanrights.com

Is the Third Sector particularly vulnerable to discrimination claims?'

Public bodies such as local authorities and educational institutions are ironically more likely to be sued for discrimination than the commercial sector. Without having statistics to back it up, it seems that people expect more of the not-for-profit sector in general, and are therefore more likely to sue them.

 

About the Author

James Carmody is an employment solicitor at Reculver Solicitors based in Central London EC1 and covering the City of London and Canary Wharf. For more information see our pages on discrimination at http://www.reculversolicitors.co.uk/discriminationclaims.htm or for our Kent office covering Canterbury, Ashford, Whitstable, Sandwich & Herne Bay at http://www.kent-employment-solicitors.co.uk/discriminationclaims.htm

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