Guidelines on Equality Act 2010, United Kingdom
Introduction
Equality Act 2010 was enacted to make provision to require Ministers of the Crown and others when making strategic decisions about the exercise of their functions to have regard to the desirability of reducing socio-economic inequalities; to reform and harmonise equality law and restate the greater part of the enactments relating to discrimination and harassment related to certain personal characteristics; to enable certain employers to be required to publish information about the differences in pay between male and female employees; to prohibit victimisation in certain circumstances; to require the exercise of certain functions to be with regard to the need to eliminate discrimination and other prohibited conduct; to enable duties to be imposed in relation to the exercise of public procurement functions; to increase equality of opportunity; to amend the law relating to rights and responsibilities in family relationships; and for connected purposes. [8th April 2010]
Guidelines for Employers
Protected characteristics under Equality Act?
Protection from unlawful discrimination is provided by the Equality Act in relation to the following protected characteristics:
age
disability
gender reassignment
marriage and civil partnership
pregnancy and maternity
race
religion and belief
sex
sexual orientation
Meaning of discrimination as per Equality Act?
Unlawful discrimination can take a number of different forms: An employer must not treat a job applicant, employee or former employee worse than any other because of a protected characteristic (this is called direct discrimination).
| Examples: An employer does not interview a job applicant because of the applicant’s ethnic background. An employer bases their decision on whether to agree to a request to work flexibly on the worker’s sex. The employer agrees a mother’s request but refuses a father’s request just because he is a man and the employer believes it is less important for him. This is probably direct sex discrimination and would also be a breach of the right to request flexible working. |
In the case of pregnancy and maternity, direct discrimination can occur simply if the person has the protected characteristic without needing to compare treatment to someone else. An employer must not do something which has (or would have) a worse impact on a job applicant, employee or former employee and on other people who share a particular protected characteristic than on people who do not have that characteristic. Unless they can show that what they have done, or intend to do, is objectively justified, this will be indirect discrimination. ‘Doing something’ can include making a decision, or applying a rule or way of doing things.
| Examples: An employer only offers applicants for a job one time for interview. One applicant is an observant Muslim who cannot attend at midday on Friday. Unfortunately, this is the only time they are offered for their interview. Unless the employer can objectively justify the lack of flexibility, this may be indirect discrimination because of religion or belief. An employer only allows workers who work full-time to apply for promotion. This has a worse impact on women workers, who are more likely to work part-time. Unless the employer can objectively justify the requirement to work full-time, this is very likely to be indirect discrimination because of sex. |
An employer must not treat a disabled job applicant, employee or former employee unfavourably because of something connected to their disability where they cannot show that what they are doing is objectively justified. This only applies if the employer knew or could reasonably have been expected to know that the applicant is a disabled person. The required knowledge is of the facts of the employee’s disability. The employer does not also need to realise that those particular facts are likely to meet the legal definition of disability. This is called discrimination arising from disability.
| Example: An employer tells a visually impaired person who uses an assistance dog that they are unsuitable for a job because the employer is nervous of dogs and would not allow it in the office. Unless the employer can objectively justify what they have done, this is likely to be discrimination arising from disability. The refusal to consider the visually impaired person for the job is unfavourable treatment which is because of something connected to their disability (their use of an assistance dog). It may also be a failure to make a reasonable adjustment. |
An employer must not treat a job applicant, employee or former employee worse than another because they are associated with a person who has a protected characteristic.
| Example: An employer offers flexible working to all staff. Requests are supposed to be considered on the basis of the business needs of the organisation, but a manager decides that a man’s request to work flexibly to care for his 90-year-old father is more important than another man’s to care for his 50-year-old wife. If the manager’s decision is based on the age of the person being cared for, this is almost certainly discrimination because of age by association. (It would not be unlawful if the decision was objectively justified, since direct discrimination because of age, unlike other protected characteristics, is allowed if justified.) |
An employer must not treat a job applicant, employee or former employee worse than another because they incorrectly think they have a protected characteristic (perception).
| Example: An employer does not give an applicant the job, even though they are the best- qualified person, because the employer incorrectly thinks the applicant is gay. This is still direct discrimination because of sexual orientation. |
An employer must not treat a job applicant, employee or former employee badly or victimise them because they have complained about discrimination or helped someone else complain or have done anything to uphold their own or someone else’s equality law rights. The provisions relating to association, perception and victimisation can apply to anyone, even if they do not have one of the protected characteristics themselves.
| Example: An employer does not shortlist a person for interview, even though they are well-qualified for the job, because last year the job applicant said they thought the employer had discriminated against them in not shortlisting them for another job. |
An employer must not harass a job applicant, employee or former employee.
| Example: An employer makes a job applicant feel humiliated by telling jokes about their religion or belief during the interview. This may amount to harassment. |
In addition, to make sure that a disabled person has the same access to everything that is involved in getting and doing a job as a non-disabled person, an employer must make reasonable adjustments. When an employer assesses a disabled job applicant’s suitability for a job, they must take account of any reasonable adjustments which are needed to enable them to do the job. If, after taking reasonable adjustments into account, the disabled applicant would not be the best person for the job, the employer does not have to offer it to them. But if they would be the best person with the reasonable adjustments in place, the employer must offer them the job. Of course it makes sense to do this, as an employer will want the best person for the job anyway. Reasonable adjustments should also be put in place if someone becomes disabled while in work or if their needs change or they move to a different role.
| Example: A disabled worker has to eat at set times to manage their blood sugar for their diabetes, which is only possible by taking their breaks at slightly different times (and therefore working slightly different hours) from those that usually apply within an organisation. This does not have a negative impact on the worker’s ability to do the job; quite the opposite, it removes a barrier which would otherwise stop them doing the job. If this is a reasonable adjustment, the employer must allow the change in hours. |
Sometimes there are situations where equality law applies differently. This guide refers to these as exceptions. There are several exceptions which apply to all employers. There are others that only apply to particular types of employer. In addition to these exceptions, equality law allows an employer to: Treat disabled people better than non- disabled people. Use voluntary positive action.
Age is different from other protected characteristics. If an employer can show that it is objectively justified, they can make a decision based on someone’s age, even if this would otherwise be direct discrimination. However, there are only limited situations in which direct age discrimination will be objectively justified. To show that something is objectively justified, you must be able to show that there is a good reason for doing what you are doing and that what you are doing is proportionate. The test is not quite the same as for indirect discrimination. This is because for indirect discrimination you are allowed to rely on any reason for wanting to make a decision or apply a rule provided it represents a real objective consideration and it is proportionate. When what you are doing is direct age discrimination you are only allowed to rely on a limited number of reasons. These are generally those that would be in the wider public interest, like promoting access to employment for younger people, or preserving the dignity of older workers as opposed to reasons particular to you. Even if you have a good reason, your actions must still be proportionate. Employers should be careful not to use stereotypes about a person’s age to make a judgement about their fitness or ability to do a job.
| Examples: An employer rejects an applicant for a management job because they are 25 years old and much younger than the people they would be managing. An employer only makes people over 50 do an aptitude test, because the employer believes that people over 50 do not have the mental agility to learn to do a job. |
These are both examples of age discrimination which an employer would find it very difficult to objectively justify.
If an employer can show that a particular protected characteristic is central to a particular job, they can insist that only someone who has that particular protected characteristic is suitable for the job. This would be an ‘occupational requirement’.
| Example: A women’s refuge may want to say that it should be able to employ only women as counsellors. Its client base is only women who are experiencing domestic violence committed by men. This would probably be a genuine occupational requirement. |
An employer can generally take into account a protected characteristic where not doing this would mean they broke another law.
| Example: A driving school must reject a 19-year-old who applies for a job as a driving instructor because to offer them a job – even if they are otherwise the best candidate – would involve breaking the law, because a driving instructor must be aged at least 21. |
National security An employer can take a person’s protected characteristic into account if there is a need to safeguard national security and the discrimination is proportionate.
Exceptions that only apply to some employers
If an employer is a religion or belief organisation, they may be able to say that a job requires a person doing the job to hold a particular religion or belief. This will only apply if being of a particular religion or belief is a genuine requirement of the job and the requirement is objectively justified. If the job is for the purposes of an organised religion, an employer may be able to say that a job or role requires a person to have or not have a particular protected characteristic or to behave or not behave in a particular way. If any of the following: a job or role exists for the purposes of an organised religion, such as being a minister or otherwise promoting or representing the religion, and because of the nature or context of the employment, it is necessary to avoid conflict with the strongly held religious convictions of a significant number of the religion’s followers or to conform to the doctrines of the religion by applying a requirement to the job or role, then an employer may be able to refuse to employ a person because: they are male or female they are a transsexual person they are married or in a civil partnership, including taking into account who they are married to or in a civil partnership with (such as someone who marries a divorced person whose former spouse is still alive) they manifest a particular sexual orientation, for example, a gay or lesbian or bisexual person who is in a relationship with a same-sex partner. This exception should only be used for a limited number of posts. For example, ministers of religion, and a small number of posts outside the clergy, such as those which exist to promote or represent the religion. The requirement must be a proportionate way of meeting the aims stated above. An employment service provider may be able to say that a person must have a particular protected characteristic to do vocational training, if the training leads to work for which having that characteristic is an occupational requirement. An educational establishment like a school or college may be able to say that someone has to be of a particular religion or belief, or must be a woman. Recruitment to the civil, diplomatic, armed or security and intelligence services and some other public bodies, can specify what nationality a person has to be. Recruitment for service in the armed forces may be able to exclude women and transsexual people if this is a proportionate way to ensure the combat effectiveness of the armed forces. In addition, age and disability are, in effect, not protected characteristics in relation to service in the armed forces. Disability can also be a reason to refuse someone work experience in the armed forces.
Special treatment in connection with pregnancy and maternity It is not sex discrimination against a man to provide special treatment for a woman in connection with pregnancy or childbirth.
| Example: An employer allows a pregnant worker to have time off not just for ante-natal appointments (which is a legal requirement) but also to attend fitness classes for pregnant women at a nearby gym. The worker makes up the lost hours at another time, which she would not have to do for an ante-natal appointment. It would not be sex discrimination to refuse a man’s request to go to a fitness class during working hours. |
However, when granting special treatment to a woman who has already given birth you must be sure that the treatment is a proportionate means of compensating a woman for the disadvantages occasioned by her being pregnant or having given birth. In other words, any special treatment cannot be too remote from the fact that the woman has had a baby. It will usually be proportionate to continue any benefits that the woman has received as part of her employment for the whole of the maternity leave period, and other steps may be required to ensure that she is not disadvantaged because of absence due to pregnancy or maternity leave. If it is possible this should be done in a way that does not disadvantage another worker, though, sometimes, preferential treatment, even where this results in a disadvantage to another worker, will be necessary. As long as any special treatment does not go beyond what is necessary to rectify her disadvantage, it will not be sex discrimination against a man.
Positive action means the steps that an employer can take to encourage people from groups experiencing disadvantage or low participation to take up employment opportunities, including jobs, training, promotion, transfer or other development opportunities. Equality law allows an employer to target opportunities at particular groups. This is not the same as ‘positive discrimination’, which equality law does not allow.
| Example: A local fire service identifies from its monitoring data that women are under- represented as firefighters. The service makes clear in its next recruitment exercise that applications from women are welcome and holds an open day for potential women applicants at which they can meet women firefighters. However, the fire service must not guarantee that all women will get through the initial stages of the application process, regardless of their suitability. |
In a situation where candidates are equally qualified, it is possible to appoint an applicant from a group sharing a protected characteristic if you reasonably believe this group to be disadvantaged or under-represented in the workforce or if their participation in an activity is disproportionately low.
| Example: A housing advice service has no Muslim employees, even though it is located in an area where there is a high Muslim population. When a vacancy arises, there are two candidates of equal merit. One candidate is Muslim and the other is not. The advice service could choose to offer the job to the Muslim candidate under the positive action provisions, so that the non-Muslim candidate could not claim religious discrimination. |
Equality law additionally allows an employer to treat a disabled person better, or more favourably, than a non-disabled person. This recognises the additional barriers to work that disabled people face.
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