The Equality Act 2010: A whistle-stop Tour March 2013 Clerkenwell Unite Branch

Overview Purpose of the Act Protected Characteristics Prohibited Conduct Scope Liability for discrimination Public Sector Equality Duty Positive action Enforcement What’s new and what’s under threat Promoting equality in Unite and Campaigning

Purpose -Strengthening, harmonising and streamlining 40 years of equalities legislation: Strengthening - improving the effectiveness of equality legislation providing the same levels of protection from discrimination across all protected characteristics and all sectors where appropriate simplifying and consolidating approximately 116 pieces of separate equality legislation

Protected Characteristics Age Disability Gender reassignment Marriage and civil partnerships Pregnancy and maternity Race Religion or belief Sex Sexual orientation

Prohibited Conduct (unlawful acts) Direct discrimination – less favourable treatment because of a protected characteristic Indirect discrimination – a policy, criterion or practice (PCP) which puts a group who share a protected characteristic at a disadvantage and puts a person of that protected characteristic at a disadvantage and the PCP cannot be shown to be proportionate (i.e. objectively justifiable) Discrimination arising from disability – Unfavourable treatment of a disabled person because of something arising in consequence of that person’s disability which cannot be objectively justified (the employer must know about the disability to be liable Reasonable adjustment duty – requirements to take reasonable steps to avoid putting a disabled person at a substantial disadvantage caused by a PCP or a physical feature; and provide auxiliary aid/service.

Prohibited Conduct (unlawful acts) cont. Pregnancy and maternity – Unfavourable treatment of a woman because of her pregnancy or a related sickness or because she exercises her right to maternity leave Gender reassignment – less favourable treatment because of absence from work connected with gender reassignment Harassment – Unwanted conduct which has the purpose or effect of violating a person’s dignity, creating an intimidating, hostile, degrading, humiliating or offensive environment/ unwanted conduct of a sexual nature Victimisation – subjecting a person to a detriment for doing taking proceedings, giving evidence in proceedings, making an allegation that someone has breached the Act or doing something in connection with the Act (known as the ‘Protected act’) Causing/aiding/inducing – causing discrimination/helping a person to commit an unlawful act/persuading a person to commit an unlawful act

Scope of the EA Employment - Employees, agency/contract workers Other work relationships - police officers, partnerships, Barristers, office holders (not political offices), qualification bodies and trade organisations, employment services, local authority members Equal pay Goods, services and public functions Housing/Premises Education Member associations –Special provisions for political parties –Women only shortlist

Who is Liable for discrimination? Employers Principals Individual employees and agents (where employer can show they have taken reasonable steps to prevent discrimination) Service providers (including education establishments and housing providers) Public authorities Chief Officer of Police

Public Sector Equality Duty (PSED) – First introduced into the Race Relations Act to give effect to the findings of the Stephen Lawrence inquiry. – Recognised the concept of institutional racism defined in the Macpherson report as “The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people...that which, covertly or overtly, resides in the policies, procedures, operations and culture of public or private institutions - reinforcing individual prejudices and being reinforced by them in turn.” – Later introduced for disability and gender – Now applies to all protected characteristics

The PSED General Duty –Places a duty on ‘Scheduled’ public authorities to have due regard in the exercise of their functions to the need to: Eliminate discrimination, harassment, and victimisation and other unlawful acts Advance equality of opportunity Foster good relations (nb a public function is defined as a function of a public nature and is the same definition as in the HRA) –Advancing equality of opportunity involves having regard particular to the need to: Remove/minimise disadvantage Take steps to meet different needs of people who share a protected characteristic Encourage participation in public life or in other areas where there is under-representation

PSED Specific Duties (The Equality Act 2010 (Specific Duties) Regulations) -Certain public authorities set out in the Regulations have to take specific steps to show compliance with the ‘general duty’ -Public authorities with more than 150 employees must: publish information by / and then annually on how they will comply with the ‘general duty’ and in particular information relating to its employees and other persons affected by its policies prepare and publish by and then every four years one or more (SMART) objectives they thinks they should achieve to meet their ‘general duty’ -The information and objectives must be made accessible to the public (Nb Scotland and Wales have more robust specific duties which include consultation with people with people who share a protected characteristic and equality impact assessments)

Positive action - General The Act allows any person to take proportionate action to overcome or minimise disadvantage suffered by people who share a protected characteristic; meet the different needs of people who share a protected characteristic; or to enable/encourage people who share a protected characteristic to participate in activities where there participation is disproportionately low

Positive action – Recruitment and Promotion (tie breaks) Allows an employer to take into account a person’s protected characteristic in the recruitment and selection process where the employer reasonably thinks that: people who share a protected characteristic suffer a disadvantage or have disproportionately low participation in an activity (e.g. under-representation in the workforce); and The candidate with the protected characteristic is as qualified as the candidate without that protected characteristic; There is no policy of treating persons who share the protected characteristic more favourably and; The decision to recruit or promote the candidate of a particular protected characteristic is proportionate (It appears that the employer can rely on the tie break at any point during the process for recruitment such as the short-listing stage because of the definition given to recruitment in the EA 2010)

Enforcement - Unlawful acts in employment: Employment Tribunal Claims must be made within 3 months less one day of the act complained of Employment Tribunals can make recommendations affecting the wider workforce - Unlawful acts in goods, services and public functions County courts Claims must be made within 6 months of the act complained of. - PSED Judicial Review in High Court Claims must be made within 3 months or promptly

The new stuff - Third party harassment - Age discrimination in goods and services - Repeal of the default retirement age - Pay discussions - apply to all protected characteristics - PSED general and specific duty - Ministerial power to make regulations on equal pay audits - Employment Tribunal powers to make recommendations affecting the whole workforce - Pre employment health/disability questionnaires - Tie breaks - Occupational requirements for religious organisations must be proportionate (Nb socio-economic duty did not get enacted )

Under threat – the Red Tape Challenge! -Equality Act 2010 Third party harassment Obtaining information (the questionnaire procedure) PSED – Specific duties (nb Scotland and Wales have different specific duties to England) Employment Tribunal powers to make recommendations affecting the wider workforce -Equality Act EHRC duties S3 – General societal duty S12 – Duty to monitor societal developments S19 – Good relations S 27 – Conciliation services

Promoting equality and campaigning by Unite Equality committees –BAME –Women –Young members –Retired members –LGBT –Disabled members Equality Reps National Equality Officers Regional Women and Equality Officers Unite and PCS campaign against reforms to EHRC

Q&As The End