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Appendix Two the Equality Act 2010

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Appendix Two the Equality Act 2010 APPENDIX TWO THE EQUALITY ACT 2010 – BRIEFING PAPER 1.1 The Act is a major piece of legislation affecting Local Government. Currently about 90% of the Act is in force. The age discrimination provisions are not now likely to come into force until 2012 at the earliest. The sponsoring Government Department has undertaken a substantive consultation procedure in respect of many parts of the legislation and we are expecting finalised guidance and regulations to come on stream in the near future. 1.2 This Act aims to harmonise and simplify discrimination law, and introduces a number of new measures: A single public sector equality duty, new discrimination protection in a number of areas aimed at harmonising and simplifying the law and increasing effectiveness. 1.3 The new duties impact significantly upon Local Authorities chief amongst them are: 1.4 The modernisation agenda (a) simplifying by replacing 40 years of discrimination law by abolishing and consolidating 35 pieces of legislation, over 50 statutory instruments a dozen codes of practice and 16 EC Directives (b) harmonising the law by introducing 9 protected characteristics of: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion and belief, sex discrimination and sexual orientation. (c) strengthening the law, introducing discrimination arising from disability, removing the rights to pre-employment health questionnaires save where an interviewer may need to make adjustments. st 1.5 Most of the Act came into force on 1 October 2010. In April 2011, the single integrated public sector equality duty due to come into force. The consultation period for this closed in November 2010. 1.6 The Coalition government are still considering:- (a) auxiliary aids in schools (b) dual discrimination protection (c) age discrimination (if this is introduced it will have significant financial implications) (d) age discrimination in services and public functions (e) gender pay reporting (f) diversity reporting by political parties (f) positive action in recruitment and promotion 1.7 In relation to the 9 protected characteristics the Act sets out 9 prohibited actions. DISCRIMINATION 1.8 Direct Discrimination This occurs when someone is treated less favourably than another person because of a protected characteristic. In disability this may be because they are thought to have/perceived as having a disability even though they may not have one or because they associate with someone who has a protected characteristic. For example a mother of a disabled child. 1.9 Discrimination by Association Already applies to race, religion/belief and sexual orientation. This is going to cover age, disability, gender reassignment and sex discrimination. This is a sub-group of direct discrimination because they associate with someone who possesses a protected characteristic, for example a person who looks after their mother who has had a stroke is refused promotion because of her association with her disabled mother. 1.10 Perception of Discrimination This already applies to the race, religion/belief and sexual orientation it is now extended to cover disability, gender, reassignment and sex discrimination. This is direct discrimination because of a protected characteristic. A perception of discrimination applies even if the person does not actively possess the protected characteristic. This could apply to someone who looks younger than their years and is refused promotion because it is perceived that they are too young. 1.11 Indirect Discrimination Already applies to age, race, religion/belief, sex discrimination, sexual orientation, marriage and civil partners. It is now going to be extended to cover disability and gender reassignment. Indirect discrimination occurs when you have a policy practice or procedure that applies to all people but collaterally disadvantages some people who have or share a protected characteristic. Indirect discrimination can be justified if the alleged discriminator can demonstrate they acted reasonably and that their response is a proportionate means of achieving a legitimate aim. Proportionate means fair and reasonable in this context and demonstrating that you have considered less discriminatory alternatives. An example where indirect discrimination may be justified is a small company which needs to work late on a Friday afternoon and into the evening to respond to an overseas stock market closure. During the winter some people for religious requirements need to be home before sunset. They complete their contractual hours at other times during the week. It may not be indirect discrimination if the company is small, it is central to their operation and proportionately it meets a legitimate business need and there is no alternative way of achieving a business need. 1.12 Reasonable Adjustments This only applies to disability discrimination. Service Providers are required to make reasonable adjustments. Reasonable adjustments apply to changes of policy, reasonable changes to the environment, (building and access), the provision of auxiliary aids and services including information in an accessible format. Where the building can not easily be made accessible through reasonable adjustments it may be a reasonable adjustment to provide the service from a different location. Reasonable adjustments are required where a disabled person would be substantially disadvantaged, compared with non-disabled people. What is a reasonable adjustment depends on all the circumstances including the cost of adjustments, the benefits the reasonable adjustments will bring, the resources the organisation has at its disposal and how practicable the changes are. Sole Traders will be required to make less reasonable adjustments than a public body like a Local Authority. The Equality Act requires Service Providers to be proactive, think ahead and anticipate barriers that may impede disabled people. The reasonable adjustments threshold is now lower. Previously all reasonable adjustments to premises, policies, practice and procedures only had to be made if it was impossible or unreasonably difficult for a disabled person to access the building or service. Now, reasonable adjustments are required where a disabled person will experience substantial disadvantage. 1.13 Harassment This is unwanted conduct relating to a protective characteristic which has the effect of violating an individuals dignity or creating an intimidating hostile, degrading, humiliating or offensive environment for the individual. Harassment applies to the 9 protected characteristics except pregnancy, maternity, marriage and civil partnership. Employees will be able to complain about harassment and offensive behaviour even if it is not directed at them and the complainant is not required to possess a protected characteristic themselves. 1.14 Third Party Harassment This already applies to sex discrimination and will be extended to age, disability, gender reassignment, race, religion/belief and sexual orientation in 2011. The Act creates liability for harassment of your employees and staff by a third party who are not employees of the Local Authority i.e. service users or constituents. The liability is triggered on the third occasion that harassment by a third party occurs, and the body is aware of the previous occurrence and failed to take reasonable steps to prevent it from happening. Third Party harassment can occur where the third party is neither the focus of the harassment or possesses a protected characteristic. The third party merely have to witness harassment and take the view that the harassment creates an offensive and oppressive environment. 1.15 Victimisation This is triggered where an employee is treated badly because they have been supportive of someone who possess a protected characteristic or raised a grievance under this Act. For example, an employee makes a formal complaint against her manager because they feel that they have been discriminated against because of marriage. The matter is resolved between the employee and the employer however the complainant is ostracized by colleagues and the manager. This is victimisation. 1.16 Pregnancy and Maternity There has been no change. A women is protected against discrimination on the grounds of pregnancy and maternity during the period of her pregnancy and statutory maternity leave Taking account of absence due to pregnancy related illness when making employment decisions is distinguished as a protective characteristic. For example, a pregnant women works on a switchboard. She is disciplined for taking too many toilet breaks although her manager is aware of the pregnancy and would discipline a non-pregnant women for the same amount of toilet breaks. The rules do not require normal comparisons on treatment with other employees. 1.17 Sex Discrimination No change. Both men and women are protected under the Act. 1.18 Sexual Orientation No change. The Act protects bisexual, gay, heterosexual and lesbian people. 1.19 Default Retirement Age The Coalition Government have just completed a consultation process and have signalled an intention to phase out the default retirement age of 65 by October 2011. 2. KEY NEW PROVISIONS 2.1 Discrimination by association will apply to age, disability, gender reassignment and sex discrimination from April 2011. Discrimination by perception applies to the protected characteristic of disability, gender reassignment and sex discrimination. Indirect discrimination applies to the protected characteristics of disability
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