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 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 .

(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) 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 . 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 and gender reassignment.

Harassment by a third party applies to the protected characteristics of disability, gender reassignment, race, religion/belief and sexual orientation.

2.2 Changes

Harassment applies to age, disability, gender reassignment, race, religion/belief and sexual orientation.

Victimisation changes to age, disability, gender reassignment, race, religion/belief, and sex and sexual orientation, marriage and civil partnerships, pregnancy and maternity.

2.3 Public Sector Equality Duty - The General Duty

Selected Public Authorities must in the exercise of their functions have due regard to the needs to:-

(a) Eliminate discrimination, harassment, victimisation and any other conduct prohibited by the Act

(b) Advance equality of opportunity. Previously the duty was to “promote” “advance” strengthens the duty. The Council will need to demonstrate positive outcomes.

(c) Foster good relations.

The duty extends to bodies which are not themselves public authorities but which exercise public functions.

What does due regard mean?

In advancing equality of opportunity it means:-

(a) Removing or minimising disadvantages, experienced by persons who share protected characteristics.

(b) Taking steps to meet the needs of persons who share protected characteristics.

(c) Encouraging persons who share protected characteristics to participate in public life or other activities in which participation is disproportionately low.

Good Relations

(a) It requires tackling prejudice between groups.

(b) Promoting understanding between groups.

2.4 The specific duties relating to the Public Sector Equality Duties are:-

(a) The minister has power to propose specific duties to help Public Authorities to meet the general duties towards Public Sector Equality Duties.

(b) There is a consultationth on the Public Sector Equality Duty which closed on the 10 November.

The proposals for the specific duties are:-

(a) Transparency – public authorities are required to publish data on equality in relation to their workforce and services they provide to their service users and constituents.

(b) The equality outcome objectives – public authorities will be required to set equality outcome objectives informed by the evidence and data they publish.

(c) Impact Assessment – public bodies are required to assess the impact of its policies and practices and likely impact of proposed policies and practice.

The changes relating to the Public Sector Equality Duty currently applies to race gender and disability. The Equality Act extends them to all of the 9 protected characteristics from April 2011.

There is an existing duty to eliminate discrimination, promote equality of opportunity and good race relations. The new duty under the Equality Act is to eliminate discrimination advance equality of opportunity and foster good relations.

Existing specific duties will become less prescriptive. Currently the Public Sector Equality Duty is confined to actual public authorities. The Equality Act extends them to anybody who carries out functions of a public nature.

Local Authority partners and contractors will have to promote the Public Sector Equality Duty.

The Council’s submissions on the consultation are as follows:-

(a) BFC wants to be judged on outcomes.

(b) Welcome transparency of equality data and democratic accountability.

(c) They recognise the detail is yet to be made clear by the Equality and Human Rights Commission and Guidance.

BFC is concerned about the potential added financial burden resulting from publishing increased amounts of equality data at a time of austerity.

The Council in it’s consultation, advocates a proportionate approach to Equality Data Collection, analysis and publication, to protect front line services.

The Council wishes to focus on the quality of data rather than the quantity.

Following closure of the consultation on the public sector equality duty the Commission will commence the consultation on a Code of Practice.

Guidance will be available 12 weeks prior to the duty coming into force in April 2011.

2.5 Role of Equality and Human Rights Commission The Commission has jurisdiction across Britain. Its role is to provide advice and guidance and implement the Equality Act framework, raise awareness and understanding, monitor the Act. The Commission has statutory powers, they will facilitate and issue Codes of Practice, statutory and non-statutory guidance.

3. MISCELLANEOUS DUTIES

3.1 Positive Action

Positive action consists primarily of providing training to facilitate people with shared protected characteristics, who would otherwise be excluded from applying for a post. This is lawful and should be contrasted with positive discrimination where you select only from a group who possess a common protected characteristic, which is unlawful.

The Equality Act proposal was that at interview you can select someone on the basis of their protected characteristic to balance your workforce – if you have 2 candidates of equal strength. It appears unlikely that this duty will be implemented by the Coalition Government.

3.2 ET Recommendations

The Tribunal following a finding in favour of a person with a protected characteristic may require the public body/Local Authority to publish an anti- harassment policy and train staff accordingly. Before if the person left the company prior to the Employment Tribunal, the Tribunal could not make recommendations. Now even though the complainant has left their employment, the Tribunal can make recommendations and the employer is required to act on them for the benefit of other employees in the organisation.

3.3 Pay Secrecy in the Work Force

Employer’s may be required to publish varying rates of pay to identify on equalities relating to pay e.g.: the . This prohibits secrecy agreements.

3.4 Pre-Employment Health Related Checks

The Equality Act limits the circumstances where you can ask health related questions before you have offered an individual a post.

Up until you offer the post you can only ask health related questions to help the organisation to decide whether to make reasonable adjustments for the selection process.

Example: Bracknell News desk is recruiting a receptionist/clerk typist. The news desk application form has to remove health related questions. However, the news desk can enquire if reasonable adjustments are required to carry out the interview process to ensure everyone can give their best during the selection interview stage.

However, information about reasonable adjustments has to be disregarded when selecting the successful candidate.

If the job requires lots of heavy lifting, they could ask a candidate with a mobility impairment whether they could carry heavy products. However, the news desk could not ask how the same impairment may stop them from travelling to and from work as this is not “intrinsic” to the requirements of the job itself.

3.5 Schools – Pupil admission and treatment

The Act contains provisions to ensure that school admissions are undertaken in a non-discriminatory way. Schools must also not harass, or victimise a pupil seeking admission.

The Act also addresses harassment and victimisation of pupils due to the actions of their parents.

The Act reaffirms schools duties to make reasonable adjustment.

In September 2011 they may have new duties to provide auxiliary aids. This is still being considered.

3.6 Further and Higher Education

The Act makes unlawful discrimination by institutions against students seeking entry to further and higher education on a similar basis to schools. The duties extend to accessibility of services once admitted. It strengthens disability discrimination rights in the higher and further education sector relating to qualifications. Harassment and victimisation is also addressed in relation to higher and further education in similar terms to secondary and primary education.

3.7 Disabled Persons Transport – Taxis

The Secretary of State has the power to make taxi accessibility regulations covering loading and unloading and comfortable travel by disabled and wheelchair user passengers.

The regulations can address door size, floor and cab size, restraining devices and the carrying of ramps and the requirement to secure wheelchairs. Failure to comply with any regulations is a criminal offence. The sanction is a level 3 fine which means a maximum of £1,000. The Secretary of State may also prescribe the number of wheelchair accessible vehicles in an area. The details are awaited as the regulations have not been published. It is probable that the wheelchair accessible policy already in operation in the Borough will be compliant.

Exemptions

Some drivers may seek exemption from wheelchair accessibility on health grounds. The Act also requires assistance dogs to be allowed to accompany their disabled owners taxis. Again, drivers can seek exemptions on health grounds.

3.8 Elected Members

Local Authorities must not discriminate, harass or victimise an Elected Member in relation to a Member carrying out their official business. The requirements relate primarily to opportunities for training and facilities.

A Member is not subjected to detriment by a Local Authority because they are not appointed or elected to office, a Committee, Sub-Committee or other appointment. Reasonable adjustments apply to Elected Members.

3.9 Contracts – Unenforceable Terms

The Act makes a contractual term unenforceable against a person if it constitutes, promotes or provides for treatment of any person that is of a description that is prohibited under the Equality Act. The breach is enforceable via the County Court.

The Act prohibits contracting out of the principles covered by the Equality Act.

3.10 Employment Compromise Agreement

It is fairly well recognised already that the Act contains a drafting error which will have to be corrected to allow legal advisers advising claimants to also sign the Compromise Agreement on their behalf.

4. GENDER REASSIGNMENT

The Act removes the requirement to undergo medical intervention processes. A person merely has to assume the dress and life style of the opposite sex to ones birth to come within the protection of the Act.

4.1 Age Discrimination

Discrimination against a person who has the protected characteristic of being an older person will have significant financial implications in the provision of goods and services. A consultation will take place before Christmas and the earliest implementation date is April 2012.

Socio Economic Disadvantage and the right to request flexible Working

4.2 The much publicised proposed duty upon local authorities to consider socio

economic disadvantage in their th strategic decision making was formally abandoned by the Coalition on 17 November 2010 via a statement from the Secretary of State . In the same statement she also announced that the Coalition intend to extend the right to request flexible working to all.

Contact for Further Information Simon Bull – Assistant Borough Solicitor – 01344 353097 [email protected]