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SKY 6 – Avoiding unlawful discrimination and achieving equality and diversity in care setting
Anna Dabek, Partner, &
Matthew Wort, Partner, Anthony Collins Solicitors
#EldersForum #AgeingInCommon #NCF2018

3. Avoiding unlawful discrimination and achieving equality and diversity in care setting

4. Contact: Anna Dabek Matthew Wort Anna.dabek@anthonycollins.com
Matthew Wort

5. What are we looking at today…
Discrimination Legislation:
Overview
Case Studies:
Gender Reassignment
Gender Specific Care Provisions
Harassment

6. Key Legislation Human Rights Act 1998 The Equality Act 2010
The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to.
It incorporates the rights set out in the European Convention on Human Rights(ECHR) into domestic British law.
The Equality Act 2010
A Equality Act came into force on 1 October 2010 and brought together over 116 separate pieces of legislation into one single Act.
It provides a legal framework to protect the rights of individuals and advance equality of opportunity for all.

7. Who is protected? Employees and job applicants Contract workers
People you support

8. Human Rights – Key Articles
Article 8 – Right to respect for private and family life
Article 9 – Freedom of thought, conscience and religion
Article 10 – Freedom of expression
Article 12 – Right to marry
Article 14 – Prohibition of discrimination

9. The Equality Act
The Equality Act 2010 is concerned with discrimination and harassment in respect of 9 protected characteristics.
What are they?

10. MARRIAGE & CIVIL PARTNERSHIP
Protected characteristics
MARRIAGE & CIVIL PARTNERSHIP
AGE
GENDER REASSIGNMENT
DISABILITY
SEX
PREGNANCY & MATERNITY
RACE
RELIGION OR BELIEF
SEXUAL ORIENTIATION

11. The Equality Act
There are 6 types of discrimination, and other conduct set out in the Equality Act 2010 that apply to most of the protected characteristics.
What are they?

12. Indirect Discrimination
Protected characteristics
Discrimination arising from disability
Direct Discrimination
Victimisation
Duty to make Reasonable Adjustments
Indirect Discrimination
Harassment

13. Direct Discrimination
A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.
Example: At a job interview, an applicant mentions she has a same sex partner. Although she is the most qualified candidate, the employer decides not to offer her the job. If this decision is because of her sexual orientation, this would amount to direct discrimination.

14. Indirect Discrimination
A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s
Example: A care provider has a policy that staff cannot wear their hair in dreadlocks, even if the locks are tied back. The policy amounts to a provision, criterion or practice (PCP). The policy could be indirectly discriminatory because of religion or belief, as it puts Rastafarian workers at a particular disadvantage. The provider must show that the provision, criterion or practice can be objectively justified.

15. Indirect Discrimination
For indirect discrimination to take place, four requirements must be met:
the provider applies the provision, criterion or practice (PCP) equally to everyone within the relevant group including the affected person;
the PCP puts people who share the affected person’s protected characteristic at a particular disadvantage when compared with people who do not have that characteristic;
the provision, criterion or practice puts the affected person at that disadvantage; and
the provider cannot show that the PCP is a proportionate means of achieving a legitimate aim.

16. Discrimination arising from disability
Treatment of a disabled person amounts to discrimination where:  
a provider treats the disabled person unfavourably;
this treatment is because of something arising in consequence of the disabled person's disability; and
the provider cannot show that this treatment is a proportionate means of achieving a legitimate aim,
unless the provider does not know, and could not reasonably be expected to know, that the person has the disability.
Example: An employer dismisses a worker because she has had three months' sick leave. The employer is aware that the worker has multiple sclerosis and most of her sick leave is disability-related. The employer's decision to dismiss is not because of the worker's disability itself. However, the worker has been treated unfavourably because of something arising in consequence of her disability (namely, the need to take a period of disability-related sick leave).

17. Duty to make reasonable adjustments
The duty to make reasonable adjustments comprises three requirements. Providers are required to take reasonable steps to:
Avoid the substantial disadvantage where a provision, criterion or practice applied by or on behalf of the provider puts a disabled person at a substantial disadvantage compared to those who are not disabled.
Remove or alter a physical feature or provide a reasonable means of avoiding such a feature where it puts a disabled person at a substantial disadvantage compared to those who are not disabled.
Provide an auxiliary aid where a disabled person would, but for the provision of that auxiliary aid, be put at a substantial disadvantage compared to those who are not disabled.

18. Harassment The Act prohibits three types of harassment. These are:
Harassment related to a ‘relevant protected characteristic’
This type of harassment of person A occurs when person B engages in unwanted conduct which is related to a relevant protected characteristic and which has the purpose or the effect of (i) violating the A’s dignity; or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for A.
Sexual Harassment
Sexual harassment occurs when person B engages in unwanted conduct as defined above which is of a sexual nature.
Less favourable treatment of a person because they submit to, or reject, sexual harassment or harassment related to sex or gender reassignment.
Pregnancy and maternity and marriage and civil partnership are not protected directly under the harassment provisions.

19. Victimisation Occurs where A subjects B to a detriment because either:
B has done a protected act.
A believes that B has done, or may do, a protected act.*
Protected Act*:
Bringing proceedings under the Equality Act
Giving evidence or information in connection with proceedings under the Equality Act
Doing any other thing for the purposes of or in connection with the Equality Act
Alleging that A or another person has contravened the Equality Act
Seeking a disclosure that would be a relevant pay disclosure.
Making or seeking to make a relevant pay disclosure.
Receiving information disclosed in a relevant pay disclosure.

20. Exemptions - Occupational Requirement
Sex discrimination can be justified if there is an occupational requirement for doing so - having regard to the nature or context of the work, being either a man or a woman is an occupation requirement.
Must be a proportionate means of achieving a legitimate aim e.g. for privacy or decency.
BUT not clear in relation to gender reassignment.

21. Who is liable? The provider.
The provider can also be liable for the unlawful actions of their employees or agents.
Where did the incident take place?
Was the victim or discriminator working?
Was it an event that took place immediately after work?
Who was at the event?
The employee.
Anything done by an employee in the course of employment is treated as having also been done by the employer regardless of whether the employee’s acts were done with the employer’s knowledge or approval.
If the employer can show that it took all reasonable steps to prevent the employee from doing the discriminatory act or from doing anything or that description.

22. Group Discussion –
Case studies

23. Scenario
Mary has been employed by Care4You Limited for several years. She has recently come to you to explain that she wishes to identify as a male and to be called Mark. She will begin transitioning in the next few weeks, but will from now on in be known as Mark and will identify as male.
Discussion
Have you come across this scenario in your organisation?
What challenges do you think this may create?

24. Scenario
Whilst Mark is transitioning, Care4You acquire a new male resident - John. John is an orthodox Jew. Just after Mark finishes transitioning Care4You assigns Mark to John. John is told by one of the Care4You staff “Just so you know Mark used to be Mary before she had a gender identity crisis”. When John and his family discover that Mark was a female, they object to John being cared for by Mark on the grounds that because of his religion John cannot be cared for by someone who has a different birth gender to John, even though Mark has fully transitioned by this time.
Discussion
What are the potential challenges?
How do you manage this situation?

25. Scenario
Since being employed by Care4You Mark has been providing care to Lucy. Lucy raises no objection to being cared for by Mark whilst he is transitioning or after his transition process is finished. It has been reported to you however that at times Lucy can make inappropriate comments about Mark to other staff. No action is taken and Mark is unaware of the comments that Lucy has been making behind his back. One day when Mark is providing Lucy with care he spills some water on Lucy’s t-shirt. Lucy gets really angry and shouts “Watch what you are doing, you freak queer”. In response Mark, who is really upset about Lucy’s comment, calls Lucy a “batty old bible basher”.
Discussion
What are the potential challenges?
How do you manage this situation?

26. Scenario
Following a Company wide salary review the Finance Manager, Claire complaints to you about Peter, the Director of Finance. She explains that she was not awarded any salary increase by Peter and she believes that this is because her 5 month relationship with Peter has recently ended. She explains that when she used to see Peter outside of work, he would tell Claire that “what Mary did” was against Peter’s beliefs as a Catholic and that “God created men and women to be just that” and that he was “going to ignore this whole sex change thing until Mary bucks her ideas up.” Claire was uncomfortable with Peter’s comments and decided to break up with him. Since then Claire has been receiving aggressive text messages from Peter that are of a sexual nature and she shows them to you. You call Peter into your office to discuss matters with him. Peter becomes extremely defensive and states that his relationships with Claire, and personal views that he expresses outside of work, have nothing to do with Care4You as it is his private life. On the salary increase issue, Peter tells you that Claire is underperforming and therefore no salary increase has been awarded to her. Peter leaves the office and refuses to discuss matters further.
Discussion
What are the potential challenges?
How do you manage this situation?

27. How we can help you Training on equality and diversity;
Advice on avoiding discrimination;
Assistance with grievance complaints and disciplinary proceedings;
Defending of discrimination proceedings/claims.

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