The Equality Act 2010 LSIS Associate: Rosie Rutherford LLB. Equality and Diversity Consultant at Cymbiosis Consultancy Ltd.

The Equality Act 2010

LSIS Associate: Rosie Rutherford LLB. Equality and Diversity Consultant at Cymbiosis Consultancy Ltd.

Aims

•Update on the Equality Act 2010

- getting to grips with the changes.

•Understand

- liabilities and responsibilities as an employer,

- liabilities and responsibilities as an educational provider.

Outcomes – thinking strategically

• Develop an understanding on how the legal responsibilities of your organisation in relation to diversity and equality, inform your expected roles, responsibilities and performance.

•Develop an understanding on what you need to do to support your organisation maintaining and continuing to develop its performance, in relation to mainstreaming equality and diversity – to create and demonstrate a change in positive outcomes.

A quick question…. For quick discussion

Why is diversity and equality important to you and your organisation?

The prejudices of good people: BMJ  2004;328:1448-1449 (19 June),

If it is only bad people who are prejudiced, that would not have such a strong effect. Most people would not wish to imitate them and so, such prejudices would not have much effect—except in exceptional times. It is the prejudices of good people that are so dangerous.”

Vikram Seth. A suitable boy. London: Phoenix, 1993.

Why is diversity and equality important?

Ethical/social justice case

Legal case

Business case

Business case example…..

“Skills shortages, an ageing workforce profile and a decline in the overall number of school leavers are all key drivers behind the need to create a more diverse workforce within our sector. It also makes sound business sense to have a workforce that reflects its customer base including women and ethnic minorities.”

Kevin Dowd, Operations Manager, SummitSkills – Building and Construction.

SECTION 149 OF THE EQUALITY ACT 2010The public sector equality duty

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Pre 2000, historically an individual model of discrimination had existed

Individual complaints

Tribunals

Statutory grievance procedures

Reality – it is difficult to pursue individual complaints

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What changed things

The determination of parents of a young black man stabbed to death in London, April 1993 to maintain their son’s reputation and demonstrate the failure of the public service of the police to protect and support all people in London, irrespective of their race or ethnicity.

The Macpherson Inquiry report`:

Institutional racism

Stereotyping – impact of bias on thinking, behaviour and actions

Colour and cultural blindness

Failure to implement policy

Lack of sustained leadership

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Report highlighted

•Loss of faith in the system among some communities

•The need for public services to rebuild trust

•The need for public services to demonstrate fairness

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Government response

•A commitment to remove the potential for discrimination from the main public services

•New legislation in 2000 introduced the concept of a statutory general duty placed on public authorities in relation to race.

•The Equality Act 2010 has developed the concept of a general duty.

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Change in emphasis

Move from individual model of tackling discrimination after it had happened

To a proactive model which aimed to both promote equality and eliminate discrimination in the development of policy and delivery of services

The Equality Act 2010

Harmonising and strengthening all equality legislation

•9 ‘protected characteristics’ in place of the 6 ‘equality strands’

•What are they? In your groups write them down,

The equality duty requiring the public sector to take into account the needs of all protected groups (except marital and civil partnership status) in employment and service delivery.

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The Equality Act 2010

Prohibited grounds for discrimination - principle of protected characteristics introduced:

age;

disability;

gender reassignment;

marriage and civil partnership;

pregnancy and maternity;

race;

religion or belief;

sex;

sexual orientation.

Public Sector Equality Duty.

In summary, those subject to the equality duty must, in the exercise of their functions, have due regard to the need to:

•Eliminate unlawful discrimination, harassment and

victimisation and other conduct prohibited by the Act.

•Advance equality of opportunity between people who

share a protected characteristic and those who do not.

•Foster good relations between people who share a

protected characteristic and those who do not.

What does this mean?

• Removing or minimising disadvantages suffered by people due to their protected characteristics.

• Taking steps to meet the needs of people from protected groups where these are different from the needs of other people so actively advancing equality of opportunity.

• Encouraging people from protected groups to participate in public life or in other activities where their participation is disproportionately low.

What does this mean? continued

The Act states that meeting different needs involves taking steps to take account of disabled people’s disabilities.

It describes ‘fostering good relations’ as tackling prejudice and promoting understanding between people from different groups.

It states that compliance with the duty may involve treating some people more favourably than others.

Publication of evidence

•Publish sufficient information to demonstrate its compliance with the general equality duty across its functions.

•This must be done by 31 July 2011

•What information might this include?

Information must include:

•Information on the effect of your policies and practices have

had on people who share a relevant protected characteristic, to demonstrate the extent to which it furthered the aims of the general equality duty for your employees and for others with an interest in the way it performs its functions.:

•Evidence of analysis that you have undertaken to establish

whether your policies and practices have (or would) further the aims of the general equality duty.

•Details of the information that you considered in carrying out

this analysis. •

Details of engagement that you undertook with people whom you consider to have an interest in furthering the aims of the general equality duty.

Preparation and publication of equality objectives – April 2012.

•Objectives that you reasonably think you should achieve to meet one or more aims of the general equality duty.

•Details of the engagement that you undertook, in developing its objectives, with people whom it considers to have an interest in furthering the aims of the general equality duty.

It must also:

•Consider the information that it published before preparing its objectives.

•Ensure the objectives are specific and measurable.

•Set out how progress will be measured.

Publication

The information on equality objectives must be published at least every four years.

Actions to support meeting the general equality duty

•assessing relevance of policies and procedures

• collecting and publishing equality information

• engagement – staff, learners, clients, community etc

• equality analysis

• equality objectives

•commissioning and procurement, and

• business planning and reporting.

Forms of discrimination

Can you name them?

There are some changes under the Equality Act 2010.

Discrimination under Equality Act 2010

•Direct discrimination

- Associative discrimination

- Perceptive discrimination

•Indirect discrimination

•Discrimination arising from a disability

•Harassment

•Third party harassment

•Victimisation

What do you think?

Paul, a senior manager, turns down Angela’s application for promotion. Angela, a lesbian, learns that Paul did this because he believe the team she applied to manage are homophobic. Paul thought Angela’s sexual orientation would prevent her from gaining the team’s respect and managing them effectively..

What do you think?

June works as a project manager – she has been offered promotion. However in conversation she tells her manager that her son has recently been diagnosed with diabetes.

Her promotion is withdrawn the following week.

What do you think?

Jim is 45 but looks much younger – as a result he is not allowed to represent his company at international meetings because senior management thinks he looks too young to be credible in front of the client.

Indirect Discriminations.19 Equality Act 2010.

• Apparently neutral rule particularly disadvantages people who have a protected characteristic – extended to cover disability and gender reassignment.

• Can be justified if “proportionate means of achieving legitimate aim” – balance business aim against discriminatory effect of policy/ practice.

• Can it be achieved differently – with reduced discriminatory effect?

• If not can it be demonstrated that business aim outweighs impact on protected characteristic/

Example of indirect discrimination.

School's ban on boy's cornrows is 'indirect racial discrimination'

High court rules against London secondary school after boy was refused entry for breaching ban on 'gang-related' hairstyles.

http://www.guardian.co.uk/uk/2011/jun/17/school-ban-cornrows-indirect-

discrimination

Discrimination arising from disability s.15 Equality Act 2010

(1)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.

(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

Discrimination arising from disability.

Discrimination arising from disability will occur if the following three conditions are met:

•you treat a disabled student unfavourably, that is putting them at a disadvantage, even if this was not your intention, and

•this treatment is because of something connected with the disabled student’s disability (which could be the result, effect or outcome of that disability) such as an inability to walk unaided or disability-related behaviour, and

•you cannot justify the treatment by showing that it is ‘a proportionate means of achieving a legitimate aim’.

http://www.equalityhumanrights.com/advice-and-guidance/guidance-for-education-providers-further-and-higher-education/key-concepts/what-is-discrimination /

Disability

•Largest ever disability employment discrimination award of

£ 729,347 in 2010.

•Average award £52,087.

•Increasing number of disability claims

Disability

Duty to make reasonable adjustments remains.

What is the legal definition of disability?

The Equality Act 2010 generally defines a disabled person as someone who:

•Has a mental or physical impairment that has a substantial and long-term adverse effect on the person’s ability to carry out normal day-to-day activities.

•This differs slightly from the definition in the DDA, which also required the disabled person to show that an adversely affected normal day-to-day activity involved one of a list of capacities such as mobility, speech, or hearing.

Ref: Office for Disability Issues:

http

://odi.dwp.gov.uk/disabled-people-and-legislation/equality-act-2010-and-dda-1995.php

Pre employment health checks

•Banned – with some exceptions

•After a job offer can make conditional on health check/ questionnaire,

If an employer relies on reply to health –related question in application or interview….

•Presumption of direct discrimination

•But claimant will still have to be ‘disabled’ to claim

Gender reassignment – protection for transgender people.

The Act defines gender reassignment as a protected characteristic.

People who are proposing to undergo, are undergoing, or have undergone a process (or part of a process) to reassign their sex by changing physiological or other attributes of sex have the protected characteristic of gender reassignment.

Transgender people no longer have to be under medical supervision to gain this protection.

Absence for treatment associated with gender reassignment should be treated as normal health related absence.

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Positive Action

A concept defined by the Race Relations Act 1976, Sex Discrimination Act 1975

Mitigate the effects of past discrimination

Tools to increase diversity in monocultural organisations.

Many organisations using this phrase erroneously to describe all activities undertaken in relation to diversity and equality

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Positive action provisions apply:

Equality Act 2010, Chapter 2.

(a) persons who share a protected characteristic suffer a disadvantage connected to the characteristic,

(b) persons who share a protected characteristic have needs that are different from the needs of persons who do not share it, or

(c) participation in an activity by persons who share a protected characteristic is disproportionately low.

Positive action

Positive action allows (but does not require) employers to positively discriminate in relation to under-represented groups, in recruitment and promotion, if the employer can show:

the successful candidate is from a protected group, which is at a disadvantage or under-represented;

the successful candidate is as qualified as any other eligible applicant.

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Any action can be taken which is a proportionate means of achieving the aim of

(

a) enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage,

(b) meeting those needs, or

(c) enabling or encouraging persons who share the protected characteristic to participate in that activity.Cymbiosis Consultancy

Ltd

When do you use it?

Positive Action provisions permits ‘proportionate’ action to overcome disadvantage, meet needs and tackle under-representation; but, must demonstrate objective justification.

Resources and signposting

Equality and Human Rights Commission at:

http://www.equalityhumanrights.com/

•The Equality Act 2010

EHRC Statutory Codes and Non Statutory Guidance

• Employmenthttp://www.equalityhumanrights.com/uploaded_files/EqualityAct/employercode.pdf

• Further Education –draft code of practice

http://www.equalityhumanrights.com/uploaded_files/EqualityAct/draftcopfehe1.pdf

LSIS – resources, information and access to support.

•Equality Framework:http://www.excellencegateway.org.uk/page.aspx?o=317678

Office for Disability Issues – disability indicators and guidance on definition of disability.

http://odi.dwp.gov.uk/roadmap-to-disability-equality/indicators.php#a5

http://odi.dwp.gov.uk/docs/law/ea/ea-guide-2.pdf

Areas where attention is required as a result of the Equality Act 2010:

1.Creating a common understanding of relevant language – why and what to include?

2.Setting equality objectives- what does this mean?

3.Data collection - what additional data requires to be collected?

4.Analysis of equality data – what does this mean and why is it necessary? How do you do it?

5.Reviewing your equality scheme and HR policies- why do you need to do this?

6.Review your current training and development on equality and diversity and management practices – why and what needs to be considered?

Summary of the session:

Aim of the session was to :

•Outline the legal updates from Equality Act 2010

•Signpost resources

•Support you in considering the implications for you as managers of people or programmes.

Following the workshop:

1.What are the key take away messages / actions you are leaving with?

2.What do you intend to do next?