FAQs

What is the Equality Act 2010 and why is it important?

The Equality Act 2010 protects people from discrimination and advances equality.  Its purpose was to harmonise and strengthen equality law in the UK.  Some people in society face discrimination, harassment and disadvantage based on their personal characteristics.  For example a disabled person is more likely to face discrimination and disadvantage than a person who is not disabled.  A woman is likely to face more discrimination than a man.  People who have experienced discrimination and disadvantage have fought to have their rights protected under the law. 

 

Is the Equality Act 2010 the first piece of legislation that protects people from discrimination and advances equality?

No.  As different groups of people with different personal characteristics (race, disability etc.) have fought for their rights to live as equals within society without discrimination, various laws have been passed to protect those rights such as the Race Relations Act 1976, Sex Discrimination Act 1975, Disability Discrimination Act 1995.

 

How is the Equality Act different from other anti-discrimination legislation?

The Equality Act 2010 brings together and replaces previous anti-discrimination legislation (law) such as the Race Relations Act 1976, the Sex Discrimination Act 1975, the Disability Discrimination Act 1995 and six other pieces of primary legislation and one hundred pieces of secondary legislation.  This makes it easier to understand the law and know your rights under the law.

Furthermore, the Equality Act 2010 extends protection to personal characteristics that were previously not protected under the law i.e. gender reassignment, and strengthened protection for other protected characteristics i.e. age, sexual orientation.

 

Does the Equality Act enhance, reduce or maintain the rights that existed under Race Relations legislation?

The simplest answer to this question is yes the Equality Act 2010 generally maintains and/or enhances the rights and duties that existed under the Race Relations Act 1976 as amended.  This is hardly surprising because the purpose of the Equality Act 2010 was to harmonise and strengthen previous equality legislation[1].However, it is also unfortunately the case that the regulatory framework, that supported the Race Relations Act 1976 as amended, has been significantly reduced by the Coalition Government since 2010.

 

Three examples of these reductions in the regulatory framework  are: a) much weaker specific equality duties to support the Public Sector Equality Duty than that which supported the old Race Equality Duty; b) no statutory code of practice to support the Public Sector Equality Duty whereas there was statutory code of practice to support the old Race Equality Duty; and c) reductions in the Equality and Human Rights Commission’s budget and its ability to take action to support the implementation of the Equality Act 2010. Moreover, during 2011 and 2012, the Coalition Government has announced that it plans to repeal parts of the Equality Act 2010. Many commentators believe that these planned changes will further reduce and weaken the Equality Act 2010.  For changes to date please click here.

 

Is everyone protected under the Act?

Yes, everyone in Britain is protected under the Act.  The Act protects people from unfavourable treatment they may face for having the following personal characteristics, which are known as ‘protected characteristics’:

  • Age
  • Disability
  • Gender reassignment
  • Marriage and civil partnership
  • Pregnancy and maternity
  • Race
  • Religion and belief
  • Sex
  • Sexual orientation

Each of us share at least 5 of the 9 protected characteristics [age, race, religion and belief (includes those who do not have a belief), sex, sexual orientation].

 

Do all the protected characteristics have equal rights under the EA?

There are nine protected characteristics under the Equality Act 2010 and they are not treated the same. The strongest protections apply in relation to the oldest protected characteristics - namely sex, race and disability and the weakest protections apply in relation to the newest of the protected characteristics namely, marriage and civil partnership and pregnancy and maternity. 

 

What types of behaviour are unlawful under the Act?

Under the Act people are not allowed to discriminate, harass or victimise another person because they have any of the protected characteristics. There is also protection against discrimination where someone is perceived to have one of the protected characteristics or where they are associated with someone who has a protected characteristic.

  • Discrimination means treating one person worse than another because of a protected characteristic (known as direct discrimination) or
  • putting in place a rule or policy or way of doing things that has a worse impact on someone with a protected characteristic than someone without one, when this cannot be objectively justified (known as indirect discrimination).
  • Harassmentincludes unwanted conduct related to a protected characteristic which has the purpose or effect or violating someone’s dignity or which creates a hostile, degrading, humiliating or offensive environment for someone with a protected characteristic.
  • Victimisationis treating someone unfavourably because they have taken (or might be taking) action under the Equality Act or supporting somebody who is doing so.

 

What if I am facing discrimination because I am short?

Height is not one of the protected characteristics.  Therefore, the Equality Act does not provide protection for someone facing discrimination because they are short.  Just as a person will not be protected under the Act for discrimination faced due to personal characteristics such as weight (unless it amounts to a disability), appearance etc.

 

Can I directly discriminate against someone on the grounds of a protected characteristic if I have an objective justification?

The answer to this question is generally no, direct discrimination cannot be objectively justified. However direct age discrimination may be able to be objectively justified  [Equality Act 2010, section 13 (2)]. The EHRC has issued advice on objective justification in relation to direct age discrimination in two statutory codes of practice; the two statutory codes of practice cover work[2] and services[3].  It may also be helpful to note that it is also possible to objectively justify discrimination arising from disability [Equality Act 2010, section 15 (1)]

 

Can I indirectly discriminate if I have an objective justification?

The answer to this question is that indirect discrimination may in certain circumstances, be objectively justified.  If an employer or a service provider  applies a policy, practice or criterion that adversely impacts an individual who shares a relevant protected characteristic it may be possible to justify the “discrimination” if applying the policy, practice or criterion is a proportionate means of achieving a legitimate aim. Chapter four of the EHRC’s statutory code of practice on employment provides clear guidance on indirect discrimination and objective justification[4]. Chapter 5 of the EHRC’s statutory code of practice on services, public functions and associations provides clear guidance on indirect discrimination and objective justification[5].

 

If you believe that your organisation might be guilty of indirect discrimination, or someone alleges that you are indirectly discriminating, then it is very important that you either ensure that you understand the guidance in the EHRC’s relevant statutory code of practice and/or you seek appropriate advice from the EHRC, an appropriate organisation, a lawyer or other suitable person. Getting things wrong could do harm and be very costly.

 

What is the ‘occupational requirements’ test?

The Act creates a general exception to the prohibition on direct discrimination in employment for occupational requirements that are genuinely needed for the job. [Empl. CoP 3.42, Jan 2011]

An employer may apply a requirement for a worker to have – or in certain cases not have – a particular protected characteristic if the employer can show that having regard to the ‘nature’ or ‘context’ of the work;

  • The requirement is ‘an occupational requirement’;
  • ‘the application of the requirement is a proportionate means of achieving a legitimate aim’.

Equality Act 2010, Schedule 9, Part 1

 

How does the provision of ‘occupational requirements’ differ from the ‘objective justification’ test in indirect discrimination?

The concepts that underpin the provisions in relation to occupational requirements and the objective justification test in indirect discrimination, direct age discrimination and discrimination arising from disability are related. In relation to occupational requirements, reference is made in schedule 9 (1b) to the application of the requirement being a proportionate means of achieving a legitimate aim’. In relation to the objective justification test in relation to indirect discrimination, reference is also made to a proportionate means of achieving a legitimate aim [section 19 (2)].

 

So it is clear that the language of a ‘proportionate means of achieving a legitimate aim’ is the same, however what is different is the purpose of the provisions. The purpose of the occupational requirements rule is that it allows an employer to specify when somebody having or not having a protected characteristic is a requirement for the job. The purpose of the objective justification test, in relation to indirect discrimination, is to say when applying a provision criterion or practice that disadvantages people who share a protected characteristic and disadvantages a particular individual with that protected characteristic may be justifiable and lawful.

 

What happens when the rights relating to one of the protected characteristics conflictwith the rights relating to another protected characteristic? i.e religion and sexual orientation?

There is no simple answer to this question. This matter was partially considered in the drafting of the Equality Act itself for example in the provisions on occupational requirements for the purpose of an organised religion. However, where other perceived conflicts have developed, the cases have been, and are being, played out in the UK and European courts. One of best known of these cases, is the case of Ladele versus the London Borough of Islington[6]. Mrs Ladele was a civil registrar who refused to conduct civil partnerships and lost her job - her view was that she was discriminated against by Islington Council because of her religious beliefs.  Islington Council's view was that by refusing to conduct civil partnerships Mrs Ladele would have been discriminating against lesbian and gay service users. In July 2008, an employment tribunal ruled in Miss Ladele's favour.  However in December that year the Employment Appeal Tribunal reversed the ruling, and it was upheld for a second time by the Court of Appeal in 2009.  The Supreme Court refused to allow Miss Ladele to appeal again.  She then made an application to the European Court of Human Rights but the European judges rejected her action in January 2013.

 

We are a small BME&R community organisation providing services to an ethnic community where the predominant religion of that community prohibits one from being lesbian, gay, bisexual, trans or intersex (LGBTI).   Under the Equality Act 2010do we need to ensure that our services are equally accessible to LGBTI people within that community even if it conflicts with the religious beliefs of the rest of the community we serve?

The Equality Act 2010 identifies that there are nine protected characteristics, one of those protected characteristics is sexual orientation, another is race, another is religion or belief and another is gender reassignment; gender reassignment partially covers trans people. If your organisation discriminates against lesbian, gay, bisexual, trans or intersex people, then you may be discriminating contrary to the provisions of the Equality Act 2010. There is no general exception that allows such discrimination under the Equality Act 2010. If your organisation discriminates in this way, then you may open yourself up to: a) legal challenge by the individual who faces discrimination; b) difficulties in accessing public funds because such bodies are generally under a duty to promote equality of opportunity; c) difficulties in accessing funding from grant-making and charitable trusts.

 

As a small community organisation to what extent do I need to make ‘reasonable adjustments’ for disabled staff and service users?

The law does not state to what extent you need to make reasonable adjustments for disabled staff, would-be employees or disabled service users. The concept of reasonable adjustments however, has been tested in the courts since it was first introduced under the Disability Discrimination Act 1995. The questions that need to be considered include: a) is there something that can be done; b) is something that can be done affordable; c) is something that can be done too disruptive. Detailed guidance on reasonable adjustments is available in the two statutory codes of practice on work and services and public functions premises published by the EHRC[7]. In addition, the EHRC’s guidance for voluntary organisations may also be helpful[8].

 

If derogatory remarks are made about refugees or asylum seekers is that covered under the protected characteristic of Race?

In the Equality Act 2010, there are 4 aspects of race – colour, nationality, ethnic origins or national origins – being a refugee or asylum seeker is not an aspect of race as defined by the Equality Act 2010. A briefing note published by the EHRC[9] states that:

 

  • ‘Section 9 EA 2010 sets out the meaning of race' ;
  • ‘this provision does not explicitly refer to 'asylum seekers or refugees';
  • ‘this means that it is not possible to make a complaint of unlawful discrimination solely and expressly on the grounds of being an asylum seeker, refugee or migrant worker’;
  •  ‘it may be possible to link discriminatory treatment with the racial grounds in s9, typically with 'nationality'.’

 

So there really is no simple answer to the question.  It would all depend on what was said and whether the statement could be considered to be covered by one of the definitions of race in section 9 of the Equality Act 2010. In 2003, the Press Complaints Commission, the industry's self-regulatory body, issued guidelines to editors warning against the use of inaccurate terminology when reporting on asylum - for example, the use of the term "illegal immigrants" to describe asylum seekers, who are in the UK lawfully.[10]’ Guidance on media issues is also provided by Refugee Action[11].

 

If a person is denied a service / employment or refused entry into premises because they are a refugee or an asylum seeker is that discrimination on the grounds of race and ethnicity?

It is important to understand that there is a clear divide between the legal rights of asylum seekers and refused asylum seekers on the one hand, and those who have been given refugee status on the other hand. Generally speaking, unless special circumstances apply, asylum seekers and failed asylum seekers, have no right to work, whereas someone with refugee status does have the right to work.  In relation to some services (e.g. housing), if an individual has no recourse to public funds, as is normally the case with asylum seekers and refused asylum seekers, then they may be ineligible for access to certain sorts of services. Once again, this is a complex issue, which is tied up with immigration law and eligibility criteria.  Denying an asylum seeker or refused asylum seeker access to a service or employment may be entirely lawful and therefore not discrimination on the grounds of race. Denying a refugee services could amount to race discrimination but not if they do not meet eligibility criteria and those criteria are lawful.

 

What do I need to include in my Equalities Policy?

The EHRC’s code of practice on employment, chapter 18, provides guidance on what should be covered in an equal opportunities policy in relation to employment matters[12]. An equal opportunities policy would normally include a statement of intent and also set out the key areas covered by your policy. The EHRC[13] has also published online advice in relation to equal opportunities policies and employment as has ACAS[14]. For many organisations with employees and delivering services, this could include your organisation’s commitments in relation to: a) managers, staff, volunteers, the Management Committee; b) policies and procedures; c) information and training; d) access and premises; e) recruitment and employment; f) service-delivery; g) expectations of service users; h) work with other bodies; i) monitoring, evaluation and review. However, there is no one size fits all approach to the structure of an equal opportunities policy and you may find that looking at some good examples might assist you.  You may also contact ROTA should you require further assistance with your Equalities Policy.

 

Do we have to monitor access to our services across the 9 protected characteristics?

In relation to service-delivery, monitoring and evaluation in relation to age, disability, gender and race are all fairly standard and generally expected by many funders. Increasingly public sector funders, and some trusts, may also expect services to be monitored in relation to sexual orientation and some may expect monitoring with respect to religion or belief. The EHRC, Stonewall and other organisations have also issued guidance on monitoring gender reassignment, sexual orientation and religion or belief - areas that may potentially raise particular sensitivities[15]. The EHRC’s guidance for voluntary organisations may also be helpful[16].

 

In relation to services, it is not standard to monitor in relation to pregnancy and maternity or marriage and civil partnerships. However, be aware that funders’ expectations and requirements may differ and there may be particular reasons for asking organisations what they monitor in relation to service-delivery and different protected characteristics.

The EHRC has issued guidance and advice on equalities monitoring and evaluation to public bodies. In its guidance to public bodies on PSED related equality monitoring, the EHRC advises that it ‘is unlikely that you will be able to disaggregate information for every protected characteristic, due to sensitivities around collection and/or low numbers[17].’

 

Organisations should take account of common practice, EHRC guidance, your organisation’s aims and objectives, funders’ requirements and relevant advice and develop  a written statement setting out what your rationale is for monitoring or not monitoring  services in relation to each of the nine protected characteristics. This approach should help you avoid running into any difficulties and identifying if you need additional advice.

 

 

 

 

 

 

 

 

 



[1] The Equality Act 2010 ‘ has two main purposes – to harmonise discrimination law, and to strengthen the law to support progress on equality.’ Equality Act 2010: Explanatory notes, paragraph 10, page 3 http://www.legislation.gov.uk/ukpga/2010/15/pdfs/ukpgaen_20100015_en.pdf

[3] EHRC Code of Practice n Services, Public Functions and Associations- http://www.equalityhumanrights.com/advice-and-guidance/information-for-a...

[5] EHRC Code of Practice on services, public functions and associations- http://www.equalityhumanrights.com/advice-and-guidance/information-for-a...

[8] What equality law means for your voluntary and community sector organisation (including charities and

religion or belief organisations), EHRC http://www.equalityhumanrights.com/uploaded_files/EqualityAct/ service_providers_guide_voluntary_and_community_sector.pdf

[9] The Equality Act  2010 and its application to asylum seekers and refugees http://www.equality humanrights.com/uploaded_files/ research/refugees_and_asylum_seekers_research_report.pdf

[11] Refugees and asylum seekers - A review from an equality and human rights perspective   http://www.refugee-action.org.uk/news/asyluminthemedia.aspx

[15] The EHRC has issued guidance on collecting information on gender identity [May 2012] http://www.equalityhumanrights.com/uploaded_files/collecting_info_gender_id.pdf] but EHRC also advises that ‘it is recommended that you concentrate on 'getting your organisation’s house in order' in every other area and then prepare the ground before monitoring for Gender Identity’ http://www.stonewall.org.uk/media/current_releases/3491.asp ‘http://www.equalityhumanrights.com/advice-and-guidance/before-the-equality-act/guidance-for-employers-pre-october-10/guidance-on-recruiting-and-supporting-trans-people/trans-monitoring/

[16] What equality law means for your voluntary and community sector organisation (including charities and

religion or belief organisations), EHRC http://www.equalityhumanrights.com/uploaded_files/EqualityAct/ service_providers_guide_voluntary_and_community_sector.pdf

[17] Equality information and the equality duty. A guide for public authorities http://www.equalityhumanrights.com/advice-and-guidance/public-sector-equ...

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