Equality Act 2010 and the EIS
Substantial parts of the Equality Act 2010 – the single biggest piece of discrimination legislation to be introduced in Great Britain – came into force last year.
The Act claims to simplify and standardise the law and extends some protections to groups not previously covered.
This new legislation is important as it has implications for teachers as employees and implications for teachers as individuals who deal with young people.
The Equality Act covers the same characteristics that were formerly protected by a number of separate pieces of equality legislation; age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnerships and pregnancy and maternity.
However, it extends some protections to groups not previously covered, and also strengthens particular aspects of equality law.
Some of the key changes which came into force on 1 October 2010 are detailed below:
Direct discrimination is where someone suffers less favourable treatment because of a protected characteristic (i.e. incurs a detriment on the grounds of age, disability, gender reassignment, marital and civil partnership status, race, religion or belief, sex, sexual orientation): section 13 Equality Act 2010.
Discrimination by association – the definition of direct discrimination is broad enough to also prohibit discrimination by association. This is where an individual is discriminated against because of his/her connection to someone who has a protected characteristic.
For example, an employee is turned down for promotion because of his/her manager’s dislike of his/her friendship with a colleague in another department who is undergoing gender reassignment.
While discrimination by association was already unlawful under race, religion or belief and sexual orientation anti-discrimination legislation, the Equality Act 2010 extends protection against this type of behaviour to the fields of age, disability, gender reassignment and sex.
However, there is one characteristic that is specifically excluded from associative discrimination – marriage and civil partnerships.
Perceptive discrimination – As with discrimination by association, the definition of direct discrimination is broad enough to also prohibit perceptive discrimination.
This is where an employee is treated less favourably because s/he is believed (incorrectly) to have a protected characteristic, for example, where an employee suffers abuse for being a Muslim when in fact s/he is of another faith or no faith.
Again, although perceptive discrimination was already unlawful under age, race, religion or belief and sexual orientation anti-discrimination legislation, the Equality Act 2010 expressly extends protection against this type of behaviour to the fields of disability, gender reassignment and sex.
As with discrimination by association, the one characteristic that is specifically excluded from prescriptive discrimination is marriage and civil partnership.
For example, it might be indirect sex discrimination for an employer to introduce a new shift pattern that is significantly harder for those with caring responsibilities to meet.
Under section 19 of the Equality Act 2010, an employer can use the defence that the provision, criterion or practice applied was a proportionate means of achieving a legitimate aim.
While indirect discrimination was already unlawful under age, race, religion or belief, sex, sexual orientation, marriage and civil partnership anti-discrimination legislation, the Equality Act 2010 extends protection against this type of behaviour to the fields of disability and gender reassignment.
Harassment – The Equality Act 2010 also allows people who are not the subject of the harassment to bring a claim.
For example, where a heterosexual worker who, having witnessed the ridiculing of a homosexual colleague (over their sexuality) then feels that the environment at work is offensive.
This is where a person suffers unwanted conduct (based on a protected characteristic) which has the purpose or effect of violating that person’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for that person: section 76 Equality Act 2010.
This definition of harassment is broad enough to prohibit discrimination by association as well as perceptive discrimination.
While harassment was already unlawful under age, disability, gender reassignment, race (but not on the grounds of colour or nationality), religion or belief, sex and sexual orientation anti-discrimination legislation, the Equality Act 2010 extends protection to cover harassment on the grounds of colour or nationality.
It does not extend protection to cover harassment on the grounds of marriage and civil partnership or pregnancy and maternity.
Third party harassment – This is where a third party (for example, a customer of, or supplier to the employer) harasses an employee: section 40 Equality Act 2010.
Employees will have a claim against their employer where the harassment occurs on three occasions, and where the employer – having been made aware that the harassment has occurred – fails to take reasonable steps to prevent a recurrence (for example, barring the harasser from the employer’s premises).
Prior to the implementation of the Equality Act 2010, it was only third part harassment on the grounds of sex that was unlawful.
However, from 1 October 2010, harassment on the grounds of age, disability, gender reassignment, race, religion or belief and sexual orientation is unlawful.
Victimisation – This is where an employee is penalised for having made or supported a complaint or legal claim about discriminatory treatment: section 27 Equality Act 2010.
The express requirement for a comparator (in order to show that someone would not have been treated in the same way but for their connection to a complainant) is withdrawn.
Protections under this provision are even engaged where the employer simply believes that the employee has, or may be involved in the bringing of a complaint or legal action.
However, where the individual has made false allegations or given untrue information in bad faith, they will not be protected from suffering a detriment.
In legal terms, someone will be considered to be disabled where they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities: section 6 (i) Equality Act 2010.
The former express requirement that impairment affects an individual’s normal day-to-day activities is withdrawn.
In addition to direct disability discrimination being outlawed there is a new offence of "discrimination arising from disability”.
This occurs where a disabled person is treated unfavourably because of something arising in consequence of their disability: section 15 (i) Equality Act 2010.
It is not necessary, therefore, to select a non-disabled comparator against whom the disabled person has been less favourably treated.
A defence open to the employer will be that it did not know, and could not reasonably have been expected to know, that the individual was disabled: section 15 (2) Equality Act 2010.
Additionally, indirect discrimination on the grounds of disability is also expressly prohibited: section 19 Equality Act 2010.
Under this provision, discrimination occurs where an employer applies a disadvantageous provision, criterion or practice to an employee who has a protected characteristic, not shared by some of the group also affected by the provision, criterion or practice.
A defence open to the employer will be that applying the provision, criterion or practice is a proportionate means of achieving a legitimate aim.
Reasonable adjustments – Where a disabled person is, or would be put at a substantial disadvantage (compared to someone not suffering from a disability) an employee will continue to be required to take reasonable steps to remove the disadvantage.
A defence open to the employer will be that it did not make any adjustments because it could not reasonably have been expected to know that the employee was disabled.
However, the employer will not be able to pass on the cost of making adjustments when there is an express agreement to the contrary.
However, an employer can still seek some medical information in certain circumstances.
Specifically, if a request is designed to help the employer understand where the individual can carry out a key function of the post, to monitor diversity, or to know what reasonable adjustments the individual needs in order to be able to participate in a job assessment process.
Once an individual has been appointed, the restrictions on an employer seeking medical information are lifted.
This is where public authorities are required to have due regard to the need to eliminate discrimination, harassment, victimisation and so on, as well as advancing equality of opportunity and fostering good relations between those with and without protected characteristics.
While the public sector was already bound by an equality duty in relation to disability, race, and sex, the Equality Act 2010 extends this duty to age, gender reassignment, religion or belief and sexual orientation.
There will be no requirement on public authorities to take into account marriage and civil partnership considerations.
EIS policy will be updated in the light of current and future legislation over the coming months. Relevant resources will be made available for members via the EIS website and reps bulletin.
(Adapted from ‘Equality Act 2010 extends and strengthens coverage’, Workplace Report, September 2010)