The recent introduction of the Equality Act 2010 has brought about many changes to the law regarding discrimination within the workplace. It has established new rules that employers must abide by regarding direct and indirect discrimination, and also discrimination by association or perception. The main statutory authority that controlled these issues had flaws where certain issues were not covered; the Equality Act 2010 has adjusted to these issues and now provides legal protection, which was once not available.
The Act which covered discrimination on grounds of sex was the Sex Discrimination Act 1975, which will be referred to as the SDA 1975. It established regulations regarding direct and indirect discrimination on the grounds of an individual’s sex. Section 1 (a) SDA 1975 describes what would be considered as direct discrimination against a female. It states that if a man treats a woman less favourably than he would a man, he is directly discriminating against the female and actions would be available for her. Section 1 (1b) SDA 1975 applies law regarding indirect discrimination against a woman. This includes any requirements made which indirectly affect women substantially more than men; an example of this would be setting a minimum height limit of six feet. This requirement would affect women considerably more than men as a much lower proportion of women are above six feet tall.
Section 6 SDA 1975 regulates sexual discrimination within employment, section 6 (1) SDA 1975 establishes what would be considered sexual discrimination during the application process. This includes any provisions or arrangements made to determine who should receive the position, any terms which may be detrimental to a woman or “refusing or deliberately omitting to offer her that employment.” Section 6 (2) refers to discrimination against a female employee, it establishes that all female employees cannot be discriminated against in the form of access to; promotional opportunities, transfer options, any additional training, benefits and access to facilities or services. It also states that dismissal may be a form of sexual discrimination.
Section 7 (2) SDA 1975 describes any situations where it is a genuine occupational qualification to be a man, such as Section 7 (2a) SDA 1975, it is stated that if a man’s physiology is an essential element of a job then it is not sexual discrimination to specifically employ a man. This would be for occupations such as actors, or any other entertainer in a role which requires a male for authenticity. Another situation is described in Section 7 (2g) SDA 1975; it states that if a requirement of a position involves duties outside of the United Kingdom, in a country or culture where a woman would not be able to effectively fulfil that role, an employer may specifically ask for a man. This may be a role within a Middle Eastern country, where women have substantially fewer rights than in western culture.
The Equality Act 2010, which will now be referred to as the EA 2010, now governs the regulations regarding sexual discrimination. Section 11 EA 2010, describes what is meant by the protected characteristic of sex, Section 11 (a) states that it is a reference to man or woman.
Section 13 (6) EA 2010 is the authority on direct discrimination in regards to sex. It states that any less favourable treatment due to breastfeeding is still classed as discriminatory against her on the grounds of sex. This section also applies to an area of discrimination which previously was not regulated, the area of discrimination by perception on the grounds of sex. This type of discrimination has only recently been regulated by the EA 2010. It covers situations where an individual is perceived to have a protected characteristic, even though they may not possess it. This could be an employer not offering a female member of staff training or promotional opportunities due to the fact that they perceive her to be pregnant, even though she is not.
Section 18 (2) EA 2010 describes basically what is meant by discrimination at work due to pregnancy and maternity. It states that a woman is discriminated against if she is treated less favourably due to the fact she is pregnant or due to the illness suffered due to the pregnancy which resulted in absence from work.
The Act which regulated discrimination on the grounds of disability was the Disability Discrimination Act 1995, which will be referred to as DDA 1995. Section 1 DDA 1995 clearly states what is meant by the term “disability”, it states “a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.” This could be any of a range of conditions from paralysis to depression.
Section 5 (1a) DDA 1995 establishes what discrimination within the workplace against a person who is considered as disabled; “for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply” This could include not offering a disabled employee training or promotion opportunities, solely due to the fact that the individual is disabled, as opposed to any incompetence in the role. Section 5 (2) DDA 1995 states that any failure to comply with a section 6 duty imposed on him, which cannot be justified will lead to an opportunity for the disabled individual to claim for discrimination. This may be a failure to include a ramp alternative to steps for wheelchair users, or failure to incorporate lifts into the building where the individual is based.
Section 6 DDA 1995 establishes any arrangements or adjustments and employer must make to ensure a disabled individual is not at any disadvantage compared to other employees. Section 6 (3) DDA 1995 suggests examples of changes an employer can make to ensure that a disabled individual is not at any disadvantage. Examples given include; changes to premises, altering hours of work or allowing time to be given in working hours for treatment, rehabilitation or assessment. These steps may not be practical for an employer, as a small company would not be able to afford drastic changes to their office to comply with Section 6 (1) DDA 1995.
Section 6 (4) DDA 1995 establishes what may considered as reasonable, when taking steps to ensure that Section 6 (1) DDA 1995 is complied with. Things considered are; how the step would affect the employer financially, and whether the employer could afford any necessary steps. Also considered is the how the step taken would affect the issue originally considered, and to what extent the issue had been resolved.
The EA 2010 has re-established guidelines on discrimination on the grounds of disability; the main area of change is in the area of direct discrimination. Section 6 describes what is referred to as a disabled person; it also states in section 6 (4a) EA 2010 that with the exception of part 12 and section 190 of the EA 2010, a disabled person is considered as anyone who has had a particular disability, even though they may not be affected by it at present. The EA 2010 also removes the list of capacities which was established in the DDA 1995, it used to state that to affect an individuals day to day activity, a certain capacity must be affected such as mobility or speech. The EA 2010 now states that “the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.”
The regulation regarding direct discrimination in relation to disability is established in Section 13 (3) EA 2010. It states that an employer may treat a disabled person more favourably than he would an employee without a disability, without any discrimination arising against the non disabled employee. This allows situations such as allowing someone with mobility difficulties additional time on lunch breaks, compared to an employee who is not disabled.
Section 15 EA 2010 states how disability may arise from a person’s disability, Section 15 (1) EA 2010 states that if an individual is treated less favourably in relation to their disability and the treatment cannot be proved of having a legitimate aim, the individual has a case for discrimination. Section 15 (2) EA 2010 states that a person may not be liable if they can prove that they did not know, or could not be reasonably expected to know that the individual had the disability. This defence may be used in a case which involves a disability such as dyslexia, which is not an easily recognisable condition.
Section 19 EA 2010 regulates the effect of indirect discrimination; it states what treatment would be classed as indirect discrimination. Section 19 (1) EA 2010 states that any provision or practice applied at work which puts a person with a particular characteristic which is discriminatory is not permitted. Section 19 (3) EA 2010 describes what characteristics are protected by the Act, these include: age, disability, gender reassignment, sex, race, religion and beliefs.
Section 20 EA 2010 establishes what duties an employer has to make adjustments to ensure that the disabled individual is not substantially at a disadvantage within the work environment. Section 20 (3) EA 2010 describes the first example, that any practice or criteria that puts a disabled individual at a disadvantage must have reasonable steps taken to ensure fair treatment. The second example is established in Section 20 (4) EA 2010, it states that any physical feature which puts a disabled person at a disadvantage must have steps taken so that the disadvantage can be avoided. This will be situations such as incorporating a lift into a building, to avoid people with mobility problems using the stairs.
The old law which regulated discrimination on the grounds of gender reassignment was the Sex Discrimination Act 1975, after it was revised due to the release of the Sex Discrimination (Gender Reassignment) Regulations 1999. Due to the release of the regulations, Section 2A SDA 1975 was introduced. Section 2A (1) SDA 1975 states that is unlawful to treat someone less favourably due to their participation or intention to participate in gender reassignment procedures. This covers any person from the moment they make another aware of their intentions to undergo the gender reassignment procedure, it includes any harassment that the individual may receive or any unfavourable treatment at work such as access to training or promotion.
Section 2A (3) SDA 1975 regulates any discrimination regarding absence from work when the procedure is in progress. If the employer treats the absence less favourably than he would if the absence was due to sickness or injury, the employee would be covered by Section 2A (3a) SDA 1975 and legal actions may be taken against the employer.
Section 7A SDA 1975 describes exceptions as to where gender reassignment may be considered as a factor in determining an individual’s employability. Section 7A (1) states that if a particular gender is a genuine occupational qualification then an individual may be refused on the grounds of their gender.
Section 7A (4) SDA 1975 was introduced by the Gender Recognition Act 2004, it states that if an individual has acquired a particular gender, then that gender will be considered as theirs when determining if a gender is a genuine occupational qualification.
Section 7 EA 2010 establishes what is referred to by gender reassignment, and who is protected by the points within the Act. Section 7 (1) EA 2010 states that anyone who has undergone, intends to or is currently undergoing gender reassignment procedures, is protected by this act. The main change is that a person is no longer required to be under medical supervision, a woman could decide to live as man without any medical procedures and still be covered by the act.
The EA 2010 also covers a new area of discrimination regarding gender reassignment. This area is known as discrimination by association, this situation is where an employer may directly discriminate against an individual who does not have a protected characteristic, however associate with someone who does. This may be an individual’s brother who is receiving gender reassignment treatment, people at work may discover that their brother is receiving the treatment and treat the individual less favourably.
Section 16 EA 2010 protects individuals who have time off due to gender reassignment procedures. Section 16 (2) states that if an individual is treated less favourably for having time off work for gender reassignment processes compared to either another injury or illness, or another reason which would not result in less favourable treatment, the individual would be able to raise an action against the employer.
The old law which regulated discrimination on the grounds of race was the Race Relations Act 1976, hereby referred to as the RRA 1976. Section 1 RRA 1976 establishes what is meant by racial discrimination, Section 1 (a) RRA 1976 states that it is classed as discrimination if someone is treated less favourably than another due to their race. Section 1 (b) RRA 1976 regulates provisions put into place at the workplace which may affect particular racial groups. It states that if a provision is introduced where a higher proportion of a particular racial group cannot participate compared to a different group, is not justifiable and detriments the racial group who cannot participate. It will be considered as discrimination and actions may be taken against the employer.
Section 3A RRA 1976 has been amended by The Race Relations Act 1976 (Amendment) Regulations 2003. This section establishes regulations on racial harassment, it states that if anyone is engaged due to their “race, ethnic or national origins” in unwanted conduct which results in either violation of the individuals dignity, or creates an “an intimidating, hostile, degrading, humiliating or offensive environment for him.”
Section 5 RRA 1976 details any exceptions where race can be a factor in an employment situation; it states that race can be a genuine occupational qualification in certain situations. Section 5 (2) RRA 1976 details any circumstances where race is a genuine occupational qualification; these are occupations such as a particular role in a dramatic performance which requires a certain race to play or an establishment where food or drink is served and staff are required to be a certain race for authenticity.
Section 9 EA 2010 establishes what is meant by the term “race”, Section 9 (1) states that race is; colour, nationality, ethnic or national origins. This may even be a difference between nations which share the same passport such as England and Scotland, as shown in the case of BBC v Souster (2001) IRLR 150.
The main change regarding racial discrimination is in the area of harassment, governed by section 26 EA 2010. It now establishes that an employee can be discriminated against by third parties. This was shown in the case of Conteh v Parking Partners Ltd EAT/0288/10, a parking attendant was racially abused by two users of the car park. The employer dropped the case as there was not sufficient evidence after two cases. The outcome of this case may have been different had the EA 2010 been in place, which provides stricter guidelines on third party harassment, as opposed to the old law governed by the RRA 1976.
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