SANDY ADIRONDACK
Legal and governance training and consultancy
for the voluntary sector
OTHER CHAPTERS
I. THE ORGANISATION

Ch.1: Setting up an organisation
Ch.2: Unincorporated organisations
Ch.3: Incorporated organisations
Ch.4: Charitable status, charity law & regulation
Ch.5: The organisation's objects
Ch.6: The organisation's name
Ch.7: The governing document
Ch.8: Registering as a charity
Ch.9: Branches, subsidiaries & group structures
Ch.10: Changing legal form
Ch.11: Collaborative working, partnerships and mergers
II. GOVERNANCE
Ch.12: Members of the organisation
Ch.13: Members of the governing body
Ch.14: Officers, committees & sub-committees
Ch.15: Duties & powers of the governing body
Ch.16: Restrictions on payments & benefits
Ch.17: The registered office & other premises
Ch.18: Communication & paperwork
Ch.19: Meetings, resolutions & decision making
Ch.20: Assets & agency
Ch.21: Contracts & contract law
Ch.22: Risk & liability
Ch.23: Insurance
Ch.24: Financial difficulties & winding up
III. EMPLOYEES, WORKERS, VOLUNTEERS & OTHER STAFF
Ch.25: Employees & other workers
Ch.26: Rights, duties & the contract of employment
Ch.27: Model contract of employment
Ch.29: Taking on new employees
Ch.30: Pay & pensions
Ch.31: Working time, time off & leave
Ch.32: Rights of parents & carers
Ch.33: Disciplinary matters, grievances & whistleblowing
Ch.34: Termination of employment
Ch.35: Redundancy
Ch.36: Employer-employee relations
Ch.37: Employment claims & settlement
Ch.38: Self employed & other contractors
Ch.39: Volunteers
IV. SERVICES & ACTIVITIES
Ch.40: Health & safety
Ch.41: Safeguarding children & vulnerable adults
Ch.42: Equal opportunities: goods, services & facilities
Ch.43: Data protection & use of information
Ch.44: Intellectual property
Ch.45: Publications, publicity & the internet
Ch.46: Campaigning & political activities
Ch.47: Public events, entertainment & licensing
V. FUNDING & FUNDRAISING
Ch.48: Funding & fundraising: General rules
Ch.49: Fundraising activities
Ch.50: Tax-effective giving
Ch.51: Trading & social enterprise
Ch.52: Contracts & service agreements
VI. FINANCE
Ch.53: Financial procedures & security
Ch.54: Annual accounts, reports & returns
Ch.55: Auditors & independent examiners
Ch.56: Corporation tax, income tax & capital gains tax
Ch.57: Value added tax
Ch.58: Investment & reserves
Ch.59: Borrowing
VII. PROPERTY
Ch.60: Land ownership & tenure
Ch.61: Acquiring & disposing of property
Ch.62: Business leases
Ch.63: Property management & the environment
VIII. BACKGROUND TO THE LAW
Ch.64: How the law works
Ch.65: Dispute resolution & litigation
UPDATED INFORMATION FOR CHAPTER 28:
THE RUSSELL-COOKE
VOLUNTARY SECTOR LEGAL HANDBOOK

This page contains information that has appeared on Sandy Adirondack's legal update website for voluntary organisations at www.sandy-a.co.uk/legal.htm. For current updates, including potential changes that are in the pipeline, see the legal update website.

These websites for each chapter update the 3rd edition of The Russell-Cooke Voluntary Sector Legal Handbook by James Sinclair Taylor and the Charity Team at Russell-Cooke Solicitors, edited by Sandy Adirondack (Directory of Social Change, 2009). The websites are not intended as a comprehensive update and should not be treated as such.

To order a copy of The Russell-Cooke Voluntary Sector Legal Handbook, print out the order form at www.sandy-a.co.uk/bookserv.htm or send an email order by clicking . It costs £60 for voluntary organisations or £90 for others, plus 10% p&p.

To avoid spamming, an email address is not given on screen. If you can't see the word 'here' or have trouble sending an email by clicking on it, the address is bookservice at sandy-a.co.uk, with the spaces and 'at' replaced by the @ symbol.

The information here covers the law applicable to England and Wales. It may not apply in Northern Ireland and/or Scotland. These news items are not a full or definitive statement of the law and are not intended as a substitute for professional legal advice. No responsibility for loss occasioned as a result of any person acting or refraining from acting can be taken by the author.


Chapter 28
EQUAL OPPORTUNITIES
IN EMPLOYMENT


The items below formerly appeared on the legal update website for voluntary organisations and are archived here. The content may be out of date and links may not work. For current updates to the chapter, see the legal update website for voluntary organisations at www.sandy-a.co.uk/equalops.htm.


RESOURCES

Equality Advisory and Support Service
Updated 16/10/12. This information updates chapters 28 & 42 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
From 1 October 2012 information, advice and support on discrimination and human rights are being provided by a new Equality Advisory and Support Service (EASS) rather than the Equality and Human Rights Commission. Funded by the government (as the EHRC service was), EASS is aimed at individuals in England, Wales and Scotland who need more expert advice and support on discrimination and human rights than advice agencies and other local organisations can provide. It will explain options for informal resolution, conciliation or mediation services, and for those who want to take legal action will help to establish eligibility for legal aid and if they are not eligible, will help find an accessible legal service to prepare and lodge a claim themselves.

The EASS website is at www.equalityadvisoryservice.com.

The service is being run by Sitel, working with Disability Rights UK, the Law Centres Federation, Voiceability, the British Institute of Human Rights and the Royal Association for Deaf People.

Sitel is a global company with 57,000 employees, "delivering telephony based customer relationship management solutions and project management". According to its website, "For over 15 years, Sitel has been a leading provider of Business Process Outsourcing (BPO) solutions in the UK, offering clients unprecedented partnership value in the delivery of multi-channel customer contact interactions across all stages of the customer relationship lifecycle." If I knew what it meant, I might be impressed that they are running a discrimination and human rights advice and support centre. On the other hand, I probably would not.
.

Other resources
Added 18/4/12. This information updates chapters 28 & 42 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Improving equality and diversity: A guide for third sector CEOs was published on 1 December 2011 by ACEVO, the Association of Chief Executives of Voluntary Organisations. It is intended to offer practical advice on how CEOs, staff and governing bodies of small and medium sized third sector organisations can tailor action on diversity to their particular organisation. It can be downloaded free of charge via tinyurl.com/crutpyu.


EQUALITY ACT

This information updates chapters 28 and 42 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
About 90% of the provisions of the Equality Act 2010 came into force on 1 October 2010, with more on 6 April 2011, and some still in the pipeline or not going to be implemented.

The Act replaces all of the previous equality legislation and covers the protected characteristics of age, disability, gender reassignment, marriage and civil partnership, race (which includes race, colour, nationality, and ethnic or national origins), religion or belief, sex, and sexual orientation (
ss.4-12), as well as pregnancy and maternity (ss.17-18). The Act was intended to simplify the law, sort out the disparities between the different discrimination "strands", extend some previous protections, and introduce new protections.

RESOURCES

Updated 13/3/11. This information updates s.28.1.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The Equality and Human Rights Commission's codes of practice explain the legislation in more technical detail than any of the resources below. While the codes do not have force of law, failure to comply with them can be taken into account in legal cases.

The three codes, covering employment; equal pay; and Services, public functions and associations, can be accessed via tinyurl.com/2fo5v3p.

The Government Equalities Office (GEO) has published a series of Equality Act 2010: What do I need to know? summary and quick-start guides, including several specifically for voluntary and community organisations. All GEO guides can be accessed via tinyurl.com/36dgn7o. Welsh language versions are available.

ACAS has produced a quick guide for employers, which can be accessed at www.acas.gov.uk/index.aspx?articleid=3017. The booklet includes a table showing which aspects of discrimination legislation have stayed the same, which have changed, which are new, and which are not covered in either previous legislation or the Act. You can print out the table on its own from the same website - it's very pretty when printed out in colour.

The Equality and Human Rights Commission has a very basic starter guide to the Act, with nine modules taking altogether less than an hour to work through. Module 1 explains the Act; modules 2-5 include an overview for employers, managing staff, new starters and leavers, flexible working and time off; and modules 6-9 include an overview for service providers, day to day delivery of services, longer-term strategy and planning, and positive action. The starter pack can be accessed via tinyurl.com/38hkdg4.

The EHRC also has more detailed guidance for employers, employees, service users, service providers and education providers, as well as guidance on the definitions of protected characteristics. The guidance can be accessed via tinyurl.com/3829vhw. The EHRC will in due course produce statutory codes of practice.

The EHRC's guidance for service providers, at tinyurl.com/24699h2, includes a section specifically for voluntary and community sector organisations, including charities and religion or belief organisations, and another section specifically for associations, clubs and societies.

THE ACT

Updated 28/5/11. This information updates s.28.1.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The Act is divided into the following sections and schedules:

  • Part 1 (ss.1-3): Social-economic inequalities — this part will not be implemented.
  • Part 2 (ss.4-27) & sch.1: Key concepts
  • Part 3 (ss.28-31) & sch.2-3: Services and public functions
  • Part 4 (ss.32-38) & sch.4-5: Premises
  • Part 5 (ss.39-83) & sch.6-9: Work
  • Part 6 (ss.84-99) & sch.10-14: Education
  • Part 7 (ss.100-107) & sch.15-16: Associations
  • Part 8 (ss.108-112) & sch.17: Prohibited conduct: Ancillary
  • Part 9 (ss.113-141): Enforcement
  • Part 10 (ss.142-148): Contracts etc
  • Part 11 (ss.149-159) & sch.18-19: Advancement of equality
  • Part 12 (ss.160-188) & sch.20: Disabled persons: Transport
  • Part 13 (ss.189-190) & sch.21: Disability: Miscellaneous
  • Part 14 (ss.191-197) & sch.22-23: General exceptions (including charities)
  • Part 15 (ss.198-201): Family property
  • Part 16 (ss.202-218) & sch.24-28: General and miscellaneous


  • The Act applies to England and Wales. It also applies to Scotland, apart from s.190 (improvements to let dwelling houses) and part 15 (family property). Only s.82 (offshore work), s.105(3),(4) (expiry of the Sex Discrimination (Election Candidates) Act 2002), and s.199 (abolition of the presumption of advancement) apply in Northern Ireland; the rest of the Act does not apply there as NI has separate equality legislation.

    The Act is at www.legislation.gov.uk/ukpga/2010/15/contents. Very long (but very useful) explanatory notes are at www.legislation.gov.uk/ukpga/2010/15/notes/contents. The explanatory notes provide examples of how the legislation applies.

    The provisions are summarised below, with key differences from the previous legislation. Note that these are summaries of a lengthy (218 clauses, 28 schedules) and complex piece of legislation, and it is essential to consult the relevant sections of the Act, the explanatory notes, and guidance from the Government Equalities Office, the Equality and Human Rights Commission and ACAS [see resources section above].

    Unless indicated otherwise, the provisions came into effect on 1 October 2010.

    ACTION: Review your equality and diversity policies and procedures and harassment procedures to ensure they comply with the new legislation in relation to both employment and service delivery. With luck someone will produce a template that can be used as a starting point for voluntary and community organisations, but I am not aware of any yet.

    Think about the hidden discriminations and harassments in your organisation. These could include, for example, treating a worker or service user less favourably not because they have a particular characteristic but because people think they have it or because the person is associated with someone who has the characteristic; discrimination against transsexuals; making assumptions about older or younger people; allowing comments that could constitute harassment to go unchallenged.....

    Although not all aspects of the Act apply to all of the protected characteristics, employers should generally assume that they do, and providers of goods, services and facilities should generally assume that they do in relation to everything except age (which is not in effect yet). It's easier than trying to remember which do and don't apply to a particular characteristic.

    If you give preference to certain groups, for example by providing services only to people with a particular protected characteristic, take advice about whether it is still lawful to do so (see, in particular, Charities below).


    Equality Act Part 1: SOCIO-ECONOMIC INEQUALITIES

    • Socio-economic duty (ss.1-3this will not be implemented).
      Updated 19/11/10. This information updates s.42.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      The government announced on 18 November 2010 that it would not bring into effect this part of the Act. It would have given government departments and key public bodies such as local authorities and NHS bodies a new duty to consider, in their strategic decisions, reducing socio-economic inequalities.

    Equality Act Part 2: KEY CONCEPTS

    • Definition of disability (s.6 & sch.1).
      Updated 28/5/11. This information updates s.28.7.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      There is no longer a requirement to consider a list of eight capacities, such as mobility, speech, hearing or eyesight, when assessing whether a person is disabled.

      The new definition of disability is slightly different from the previous definition under the Disability Discrimination Act 1995. Statutory Guidance on matters to be taken into account when determining questions relating to the definition of disability, issued by the government's Office for Disability Issues, came into effect on 1 May 2011. The guidance is intended primarily to help bodies such as tribunals interpret the legislation.

      The guidance is at odi.dwp.gov.uk/docs/wor/new/ea-guide.pdf, with background information at odi.dwp.gov.uk/disabled-people-and-legislation/index.php.

      Regs.2-7 of the Equality Act 2010 (Disability) Regulations 2010 (www.legislation.gov.uk/uksi/2010/2128/contents/made) restate previous provisions about conditions such as addiction which are not to be treated as an impairment.


    • Definition of gender reassignment (s.9).
      Updated 10/10/10. This information updates s.28.3.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      Protection has been extended to all transsexuals: not only those who are planning to undergo, are undergoing or have undergone gender reassignment surgery, but also those who are living, or transitioning to living, in the gender other than they one they were born in, even if they have not had and are not planning to have surgery.


    • Definition of race (s.9).
      Updated 13/3/11. This information updates s.28.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      Race includes race, colour, nationality, and ethnic or national origins. There is provision for caste to be added to the definition, if evidence shows this is needed, and the government is now considering a report on caste discrimination and harassment in Great Britain which was published in December 2010. The report and a summary can be accessed on the Government Equalities Office website via tinyurl.com/4gaq5vg.


    • Direct discrimination (s.13).
      Updated 10/10/10. This information updates s.28.1.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      The definition of direct discrimination has been broadened to apply whenever one person is, because of a protected characteristic, treated less favourably than another person is or would be treated. Specific provisions allow for different treatment because of age where it is justified as a proportionate means of meeting a legitimate aim, and for treating a disabled person more favourably than a person who is not disabled.

      The definition of direct discrimination is broad enough to cover discrimination because the person is the spouse, partner, parent, carer or otherwise associated with a person who has a protected characteristic (see discrimination by association), or where a person is thought to have a protected characteristic even if they do not. However, discrimination by association does not apply where the protected characteristic is marriage/civil partnership — in this case the person who is discriminated against must be the one who is married or a civil partner.


    • Dual discrimination (s.14) — this will not be implemented.
      Updated 1/6/11. This information updates s.28.1.12 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      This new provision would have allowed for claims to be brought on any combination of two protected grounds, for example both sex and race, but excluding marriage/civil partnership. The provision was criticised because it did not allow a claim to be brought on more than two grounds — but it was also criticised because it would supposedly have meant extra costs for employers, so the government announced on 23 March 2011 that it was not going to implement it. However it is still possible for claimants to make two or more separate claims.


    • Discrimination arising from disability (s.15).
      Updated 10/10/10. This information updates s.28.7.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      This has extended the legal protection for disabled people so that it reverts to the position before the House of Lords decision in the Malcolm case.


    • Absence from work due to gender reassignment (s.16).
      Updated 10/10/10. This information updates s.28.3.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      This replicates the Sex Discrimination Act provision against treating a person who is absent from work because they propose to undergo, are undergoing or have undergone gender reassignment, less favourably than they would be treated if they were ill or injured.


    • Pregnancy and maternity discrimination (ss.17-18).
      Updated 10/10/10. This information updates s.28.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      These cover discrimination because of pregnancy or in the 26 weeks after the birth, for a reason connected with having given birth or breastfeeding.

      S.17 extends pregnancy/maternity protection in relation to public functions, education and associations, and explicitly covers breastfeeding. Pregnancy and maternity discrimination under s.17 is not sex discrimination, but under s.13, it is direct sex discrimination to treat a woman less favourably because she is breastfeeding a baby who is more than 26 weeks old.

      S.18 makes it unlawful pregnancy/maternity discrimination (but not sex discrimination) to treat a woman less favourably because she is pregnant or has a pregnancy-related illness, is on statutory maternity leave (compulsory, ordinary or additional) or has sought to take statutory maternity leave. The protected period starts when the pregnancy begins. If she is entitled to ordinary and additional maternity leave the protected period ends at the end of the AML period or when she returns to work, whichever is earlier; if she is not entitled to OML and AML, the protected period ends two weeks after the birth.


    • Indirect discrimination (s.19).
      Updated 10/10/10. This information updates s.28.1.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      This harmonises the definition of indirect discrimination in relation to the protected characteristics. It includes disability, to which indirect discrimination did not apply under the Disability Discrimination Act, but does not cover pregnancy/maternity.


    • Duty to make adjustments (ss.20-22).
      Updated 10/10/10. This information updates s.28.7.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      Under the DDA, the duty to make reasonable adjustments in relation to employment applied where a disabled person was put at a "substantial disadvantage"; in relation to service delivery the duty applied where it was "impossible or unreasonably difficult" for a disabled person to use the service. Under the Equality Act there is only one threshold: that a disabled person is put at a substantial disadvantage in relation to a provision, criterion or practice, a physical feature, or the lack of auxiliary aids or services that would remove the disadvantage.

      The Act says that information should be provided in accessible formats if a disabled person is placed at a substantial disadvantage by failure to do so. This includes websites as well as information provided on paper or in other electronic media.

      Except where the Equality Act explicitly allows, the cost of a reasonable adjustment cannot be passed on to the disabled person.


    • Comparators (s.23).
      Updated 10/10/10.
      In cases of direct or indirect discrimination, the comparator — or comparators in the case of dual discrimination — must be an actual or hypothetical person who does not have the protected characteristic but whose circumstances are not (or are assumed not to be) materially different from those of the claimant.

      In a claim involving disability, the circumstances can include the respective abilities of the claimant and comparator.

      In a claim involving sexual orientation, the fact that one person is married and the other is in a civil partnership is not a material difference in circumstances.


    • Alleged discriminator's circumstances (s.24).
      Updated 10/10/10.
      It is not a defence for an alleged discriminator to say that s/he shares the relevant characteristic with the victim — for example for a gay man accused of sexual orientation discrimination to say in his defence that he is gay.


    • Discrimination strands (s.25).
      Updated 10/10/10.
      This section sets out what is meant by references to the types of discrimination.


    • Harassment (s.26).
      Updated 10/10/10. This information updates s.28.1.6 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      The definitions of harassment are harmonised between the various equality strands. Three types of harassment are defined:
      (1) Unwanted conduct related to a particular protected characteristic which has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant or violating the complainant's dignity. This does not cover pregnancy/maternity or marriage/civil partnership.
      (2) Sexual harassment: unwanted conduct of a sexual nature where this has the same purpose or effect as the first type.
      (3) Treating someone less favourably because they have either submitted to or rejected sexual harassment or harassment related to sex or gender reassignment.


    • Victimisation (s.27).
      Updated 10/10/10. This information updates s.28.1.5 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      The definition of victimisation is not changed, but it is no longer treated as a form of discrimination, so there is no longer a need for a comparator who has not made or supported a claim of discrimination.

    Equality Act Part 3: SERVICES AND PUBLIC FUNCTIONS

    • What is covered (ss.28-31 & sch.2 & 3).
      Updated 10/10/10. This information updates chapter 42 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      This part of the Act harmonises and extends provisions on discrimination, harassment or victimisation in the provision of services (including goods and facilities) or the performance of public functions, and continues to require reasonable adjustments to be made for disabled people. Public functions are defined in the same way as under the Human Rights Act 1998.

      Reg.9 of the Equality Act 2010 (Disability) Regulations 2010 (www.legislation.gov.uk/uksi/2010/2128/contents/made) includes additional provisions about reasonable adjustments to physical features.


    • Age discrimination (s.28).
      Updated 11/3/12. This information updates s.42.8 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      A claim of discrimination or harassment on the basis of being under 18 years of age will not be able to be brought. This has the effect of banning age discrimination in the provision of goods, services, facilities or public functions only in relation to people aged 18 or over. For details, see Age discrimination in service delivery.


    • Exceptions (ss.28-29).
      Updated 10/10/10. This information updates s.42.4.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      A claim for discrimination or harassment in services or public functions cannot be brought in relation to marriage/civil partnership.

      Very significantly, there continues to be no protection from harassment because of sexual orientation or religion/belief in the provision of services or public functions, However, s.212(5) makes clear that such harassment may amount to direct discrimination.

      Where an act of discrimination, harassment or victimisation in the provision of services or public functions is unlawful under part 4 of the Act (premises), part 5 (work) or part 6 (education), those provisions apply.


    • Services provided in-house to employees (s.31). Under a new provision, where an employer arranges for another person to provide a service to a closed group of employees, the members of that closed group are treated as a section of the public in relation to the service provider. The service provider thus has a duty not to discriminate or harass because of any protected characteristic, and to make reasonable adjustments for disabled people.

    Equality Act Part 4: PREMISES
    Updated 10/10/10. This information updates chapter 42 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).

    • What is covered (ss.32-38). This part of the Act prohibits discrimination, harassment and victimisation in relation to the disposal, management and occupation of premises. Most of the provisions are the same as in the previous legislation.


    • Exceptions (ss.32-35). There continues to be no protection against discrimination or harassment in relation to premises because of marriage/civil partnership or age. There continues to be no protection against harassment because of sexual orientation or religion/belief when disposing of premises, by withholding permission to dispose of premises or in the management of premises, although such harassment may constitute direct discrimination.

      Where an act of discrimination, harassment or victimisation in relation to premises is unlawful under part 5 of the Act (work) or part 6 (education), those provisions apply. Where accommodation is provided as a short-term let or as part of a service or public function, part 3 (services and public functions) apply rather than part 4.


    • Leasehold and commonhold premises and common parts (ss.36-37 & sch.4 & 5).
      Updated 10/10/10. This information updates s.42.7 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      Those who let premises, commonhold associations, and those who are responsible for the common parts of let or commonhold premises in England and Wales have a duty to make reasonable adjustments. The provisions in relation to common parts are new, and allow a disabled person to be charged for adjustments to enable him or her to use common parts.

      Reg.8 of the Equality Act 2010 (Disability) Regulations 2010 (www.legislation.gov.uk/uksi/2010/2128/contents/made) includes additional provisions about auxiliary aids or services.


      There is provision for regulations to be made in Scotland entitling disabled people to make disability-related alterations to the common parts of some residential property in Scotland. It is not clear when these regulations will be made.

    Equality Act Part 5: WORK

    Chapter 1: Employment etc (
    ss.39-59, sch.6)
    Updated 10/10/10. This information updates chapter 28 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).

    • This chapter sets out how the provisions on work apply to employees and applicants (ss.39-40), contract workers (s.41), police officers (ss.42-43), partnerships (ss.44-46), barristers and advocates (ss.47-48), office holders (ss.49-52), qualifications bodies (ss.53-54), employment services (ss.55-56), trade organisations (s.57) and local authority members (ss.58-59).

      The provisions are basically the same as in previous legislation except for those on harassment of employees and applicants, which have been extended to cover harassment because of all the protected characteristics apart from pregnancy/maternity and marriage/civil partnership (s.40). Under previous legislation, only sexual harassment was covered.


    • Liability for harassment by third parties (s.40).
      Updated 1/6/11. This information updates s.29.1.8 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      As was formerly the case for sexual harassment, but now applies to all the protected characteristics except pregnancy/maternity and marriage/civil partnership, employers can be held liable for harassment by a third party (customer, client, contractor etc) if the harassment has occurred on at least two previous occasions, the employer is aware that it has taken place, and the employer has not taken reasonable steps to prevent it happening again.

      But in its Plan for growth issued alongside the Budget on 23 March 2011, the government said it "would consult to remove the "unworkable" requirement in the Equality Act for employers to take reasonable steps to prevent persistent harassment of their staff by third parties, as they have no direct control over it".


    • Pre-employment questions about health (s.60).
      Updated 28/5/11. This information updates s.29.6.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      This is a new provision, in effect from 1 October 2010. Until a candidate has been offered a job (whether on a conditional or unconditional basis) or been included in a pool of successful candidates to be offered a job when a suitable position arises, questions about health can be asked only in specific circumstances. These are where questions are necessary:
      * to find out whether an applicant would be able to participate in an assessment to test their suitability for the work; or
      * to make reasonable adjustments to enable the disabled person to participate in the recruitment process; or
      * to find out whether an applicant would be able to undertake a function that is intrinsic to the job, with reasonable adjustments in place as required; or
      * to monitor diversity in applications for jobs; or
      * to support positive action in employment for disabled people; or
      * to enable an employer to identify suitable candidates for a job where there is a genuine occupational requirement for the person to be disabled; or
      * in the context of national security vetting.

      The Government Equalities Office published on 6 April 2011 What do I need to know? A quick start guide to the ban on questions about health and disability during recruitment, available via tinyurl.com/5vlraln.

      The fact that an employer asks unlawful questions does not, in itself, give an applicant the right to bring a claim against the employer (for this type of breach, only the Equality and Human Rights Commission can bring a claim). But an applicant could bring a claim against an employer who makes a decision based on information obtained from such a question.
    Chapter 2: Occupational pension schemes (ss.61-63)
    Updated 10/10/10. This information updates s.30.6.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    • Non-discrimination rule (ss.61-62). All occupational pension schemes have a "non-discrimination rule" read into them which prohibits a "responsible person" from discriminating against, harassing or victimising a scheme member or person who could become a member of the scheme. Decisions on the basis of age are not unlawful where they are allowed by law.

      Previous legislation included a non-discrimination rule in relation to age, disability, religion/belief, and sexual orientation. The Equality Act has extended it to race, sex, marriage/civil partnership, and gender reassignment.


    • Communications with disabled persons (s.63). This section applies to communications with certain disabled people who are entitled to benefits under an occupational pension scheme.

    Chapter 3: Equality of terms (ss.64-80 & sch.7)
    • Sex equality clause and sex equality rule (ss.64-69).
      Updated 10/10/10. This information updates s.28.8 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      A sex equality clause, providing for equality between men and women in pay and other contractual terms of employment for equal work, is read into contracts of employment, and a similar sex equality rule is implied into the terms of pension schemes. The equality clause and equality rule apply to employees, office holders and members of the armed forces.

      The definition of equal work is basically the same as in previous legislation.


    • Sex discrimination (ss.70-71).
      Updated 10/10/10. This information updates s.28.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      The sex discrimination provisions of the Act do not apply where an equality clause or equality rule operates (i.e. in relation to contractual terms and conditions where there is an actual comparator). The sex discrimination provisions apply to non-contractual pay and benefits such as promotion, transfer and training; offers of employment or appointment; and situations involving contractual pay where there is no comparator. This latter provision is new, allowing claims to be brought even where there is no actual comparator doing equal work, for example where an employer says to a woman, "I would pay you more if you were a man", but there are no male employees doing comparable work.


    • Pregnancy and maternity equality (ss.72-76). These sections include provisions for a maternity equality clause and maternity equality rule, to protect a woman's pay and pension rights while on maternity leave. There is no need for a comparator for these claims. The provisions replicate those in current legislation.


    • Discussions about pay (s.77). This section introduces a ban on secrecy clauses or other provisions which prevent employees discussing their own pay or asking colleagues about their pay, where the purpose is to find out whether there is a connection between any difference in pay and a protected characteristic. This includes not only written restrictions, but also informal ones ("Don't tell anyone about this pay rise/bonus"). Any action taken against an employee by an employer as a result of such discussions is treated as victimisation.


    • Gender pay gap information (s.78) — not yet in force.
      Updated 13/3/11. This information updates s.28.8 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      This section enables regulations to be made requiring employers with at least 250 employees in Great Britain to publish information about the differences in pay between their male and female employees. The government said on 2 December 2010 that it is encouraging public, private and voluntary sector employers with 150 or more employees to report this information on a voluntary basis, and that s.78 will not be implemented, amended or repealed while this voluntary approach is being developed.

      The Equality and Human Rights Commission has issued guidance on indicators and reporting at tinyurl.com/4phfyxe. It proposes three indicators that could be used for reporting the gender pay gap: a single figure showing the overall difference between median earnings of men and women; a single figure showing the average difference between men's and women's starting salaries; or the differences between men's and women's pay by grade and job type.


    • Comparators (s.79). This section restates the current provisions on comparators, including that a comparator may be a predecessor who did the same job.

    Chapter 4: Supplementary (ss.81-83 & sch.8 & 9)
    • Genuine occupational requirements (sch.9).
      Updated 10/10/10. This information updates s.28.1.7 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      The genuine occupational requirement (GOR) provisions for all the protected characteristics have been standardised, while continuing to allow specific exemptions where these are justified. Any requirement that a person be of a particular sex, race, disability, religion/belief, sexual orientation or age, or must not be a transsexual person, married or a civil partner, must be crucial to the post (and not merely one of several factors) and must be proportionate to achieve a legitimate aim.


    • Exemptions.
      Updated 10/10/10. This information updates s.28.1.7 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      Previous provisions which allowed some types of discrimination are restated. They include the following.

      Discrimination on grounds of sex, marriage/civil partnership and/or sexual orientation in employment for purposes of an organised religion (para.2), and discrimination on grounds of religion/belief in some cases where the employer has an ethos based on religion or belief (para.3).

      Age discrimination in relation to retirement (para.8-9), benefits based on length of service (para.10), national minimum wage for young workers and apprentices (para.11-12), redundancy schemes (para.13), life assurance (para.14), employers' provision of childcare only for children of a particular age (para.15 - a new provision), and employer contributions to personal pension schemes (para.16).

      Pregnancy/maternity discrimination in allowing employers not to offer the benefits of non-contractual terms and conditions while an employee is on maternity leave (para.17).

      Sexual orientation discrimination in allowing benefits to be provided to married employees but not to employees in civil partnerships for periods of service prior to 5 December 2005, when the Civil Partnerships Act 2004 came into force (para.18).

      This is not a full list of the exceptions in schedule 9.

    Equality Act Part 6: EDUCATION

    • Schools. Among the new provisions are protection for school pupils from discrimination or harassment because of gender reassignment and pregnancy/maternity (s.84); protection from discrimination because of gender reassignment or pregnancy/maternity in the admission of pupils (s.85); extension of protection for pupils from being victimised because a parent has made or supported a complaint of discrimination in relation to any protected characteristic, rather than only in relation to disability as was the case previously (s.86); and an obligation on local authorities and schools to prepare and implement accessibility strategies and plans, to increase disabled pupils' access to the curriculum and improve the physical environment and the provision of information (s.88, sch.10).

      A provision that the prohibitions against discrimination do not apply in relation to the content of the school curriculum has been extended to all protected characteristics, not just religion/belief as previously (s.89). The examples given in the explanatory notes to the Act are that the teaching of evolution is not religious discrimination against a pupil whose religious beliefs include creationism, and the inclusion of The Taming of the Shrew is not discrimination against a girl.

      Sch.11 sets out exceptions for schools, for example single-sex schools; faith schools; acts of worship or religious observance by schools; and (where allowed) admission on the basis of ability and aptitude.


    • Further and higher education (ss.92-93). Among the new provisions are protection from discrimination, harassment or victimisation because of all the protected characteristics, not just disability as previously, in decisions about who to enrol and in the provision of services after enrolment; and similar protections in relation to recreational or training facilities provided by local authorities.

      A provision that the prohibitions against discrimination do not apply in relation to the content of the curriculum has been extended to all protected characteristics, not just religion/belief as previously (s.94).

      Sch.12 sets out exceptions for further and higher education, for example single-sex institutions; training for work which can lawfully be restricted to people with a particular protected characteristic; institutions with a religious ethos; restricting access to accommodation to married people/civil partners and excluding people who are unmarried/not in a civil partnership; and provision of childcare for students' children of a particular age.


    • General qualifications bodies (s.96). The provisions on reasonable adjustments in relation to qualifications, which previously applied only in relation to disability, have been extended to apply to all protected characteristics except marriage/civil partnership.


    • Reasonable adjustments (sch.13). The detailed requirements for schools, educational institutions and qualifications bodies in relation to reasonable adjustments for disabled people are mostly the same as in previous legislation.


    • Educational charities and endowments (s.99, sch.14).
      Updated 10/10/10. This information updates s.5.6.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      This replicates a provision in the Sex Discrimination Act which allows for the trust deeds of educational charities whose beneficiaries are single sex to be modified so benefits can be provided to both sexes.

    Equality Act Part 7: ASSOCIATIONS

    • Definition of association (s.107).
      Updated 10/10/10. This information updates s.12.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      For the purposes of the Act an association is defined as a body with 25 or more members, where access to membership is controlled by rules and involves a selection process. An association may be incorporated or unincorporated, and may operate for profit or on a not for profit basis.


    • Definition of associate (s.107). An associate of association A is a person who is not a member of A, but by virtue of being a member of another association (B) is entitled to many of the rights that members of A have.


    • Members and associates (ss.101,103).
      Updated 10/10/10. This information updates s.12.3 & chapter 42 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      Previously, an association could not discriminate against or victimise an existing or potential member or associate because of race, disability and sexual orientation. This has been extended to include sex, age, religion/belief, pregnancy/maternity, and gender reassignment (but not marriage/civil partnership). There is protection against harassment because of most of the protected characteristics, but not because of religion/belief or sexual orientation.


    • Associations for people with a shared characteristic (sch.16 para.1).
      Updated 10/10/10. This information updates s.12.3 & chapter 42 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      An exception to s.101 allows an association to limit its membership to people who share a protected characteristic (but not the characteristic of being of a particular colour). Previously this applied only in relation to race and sexual orientation, but has been extended to all protected characteristics.


    • Guests (ss.102-103).
      Updated 10/10/10. This information updates chapter 42 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      Previously it was unlawful to discriminate against, harass or victimise existing or potential guests because of disability. Protection against discrimination and victimisation has been extended to cover all protected characteristics apart from marriage/civil partnership, religion/belief and sexual orientation.


    • Health and safety of pregnant women (sch.16 para.2).
      Updated 10/10/10. This information updates s.42.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      An association may treat a pregnant member, associate or guest differently if it reasonably believes that not doing so would create a risk to her health and safety, and the association would take similar measures in relation to people with other physical conditions. This is a new provision.


    • Political parties (ss.104-105). Single-sex shortlists for election candidates will continue to be allowed until 2030. For other protected characteristics, political parties may now take positive measures to bring in candidates from under-represented groups, but this must be proportionate and must not involve restricting the shortlist only to people with the protected characteristic. A political party may reserve a specific number of places on a shortlist for people with a particular characteristic, but not the whole shortlist.

    Equality Act Part 8: PROHIBITED CONDUCT: ANCILLARY

    • Relationships that have ended (s.108).
      Updated 10/10/10. This information updates s.28.1.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      It was previously unlawful to discriminate against or harass a person after an employment relationship had ended, or to discriminate against or harass a person on the basis of sexual orientation or religion/belief after a relationship involving the provision of goods, services or facilities had ended. This protection has been extended to all protected characteristics, including age when the provisions on age discrimination in service delivery come into effect.

      Where a disabled person continues to be at a substantial disadvantage even after a relationship has ended, there is now a duty to make reasonable adjustments. The explanatory notes to the Act give the example of an employer who gives ex-employees lifetime use of in-house gym facilities, having to make adjustments to allow a disabled ex-employee to use the facilities.


    • Liability of employers and principals, employees and agents; instructing, causing, inducing or aiding contraventions (ss.109-112). These sections replace and extend similar provisions in previous legislation, making clear that both the person carrying out an unlawful act, and any person on whose behalf or under whose instruction they were acting, can be held liable for the act.

    Equality Act Part 9: ENFORCEMENT

    • Tribunal recommendations in employment cases (s.124).
      Updated 10/10/10. This information updates s.37.4.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      Employment tribunals are now allowed to make wider recommendations in discrimination cases, requiring an employer to take specific steps in relation to the wider workforce rather than just in relation to the worker who has made the complaint.


    • Burden of proof (s.136).
      Updated 10/10/10. This information updates s.28.9.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      In discrimination, harassment and victimisation cases the claimant must initially establish sufficient facts which point to a breach of the Act having occurred. The burden of proof then shifts to the respondent to show that he or she did not breach the provisions of the Act. This principle previously applied to most protected characteristics, but the Act has extended it to all of them.

    Equality Act Part 10: CONTRACTS etc

    This part (ss.142-148) mostly restates previous legislation about the unenforceability of contract conditions which would lead to conduct prohibited by the Act. It is not summarised here.


    Equality Act Part 11: ADVANCEMENT OF EQUALITY

    • Public sector equality duty (ss.149-157 & sch.18-19).
      Updated 28/5/11. This information updates s.42.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      From 5 April 2011 the previous race, disability and gender equality duties, which required public bodies to reduce inequality and foster good relations, have been extended to cover age, gender reassignment, pregnancy/maternity, religion/belief, and sexual orientation. It does not apply to marriage/civil partnership.

      This general equality duty applies to public bodies in England, Wales and Scotland (listed in
      sch.19 as amended), and also to other bodies that carry out public functions (as defined under the Human Rights Act 1998). Even if they are not carrying out public functions, organisations which receive public sector funding or contracts are likely to have to comply with the duty as part of their grant or contract conditions. Amendments to the list of bodies in sch.19 are in the Equality Act 2010 (Public Authorities and Consequential and Supplementary Amendments) Order 2011 and in regulations specific to Wales and Scotland, all of which can be accessed via www.legislation.gov.uk/secondary/2011?title=Equality%20Act%202010.

      As well as the general duty, specific duties set out how the general duty is to be applied for England and non-devolved bodies in Wales and Scotland, and separately for Wales and for Scotland. The duties specific to Wales came into effect on 6 April 2011 and are at www.legislation.gov.uk/wsi/2011/1064/contents/made.

      The government announced on 18 March 2011 that the draft Equality Act 2010 (Statutory Duties) Regulations 2011, which were due to come into effect on 6 April 2011 for England and non-devolved bodies in Wales and Scotland, were being reconsidered. The consultation documents can be accessed via tinyurl.com/5r423up. The Scottish government is also reconsidering its proposals. No implementation dates have been set for England or Scotland.

      Information about the general and proposed specific duties is available from the Equality and Human Rights Commission via tinyurl.com/3repekb. This includes the detailed Essential guide to the public sector equality duty (58 pages) tinyurl.com/4gmxw33, with a range of specific guides at tinyurl.com/6zrbdd8.
      The Government Equalities Office's Equality Act 2010: Public sector equality duty: What do I need to know? (10 pages), updated in April 2011, is at tinyurl.com/3hd5jch.


    • Using public procurement to promote equality (s.155) — not yet in force.
      Updated 13/3/11. This information updates s.52.2.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      There are powers for specific duties to be imposed on public bodies in relation to their public procurement functions, for example by requiring contractors bidding for public sector contracts to demonstrate how they promote equality. No date has been set for implementation.


    • Positive action to alleviate disadvantage (s.158).
      Updated 10/10/10. This information updates s.28.1.7 & chapter 42 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      It remains lawful to use positive action measures, such as targeted training or health services, to alleviate disadvantage experienced by people who share a protected characteristic, reduce their under-representation, and meet their particular needs. Any such measures must be a proportionate way to achieve the relevant aim. Criteria to be taken into account in determining what is proportionate are set out in this section.


    • Preference in recruitment and promotion (s.159).
      Updated 13/3/11. This information updates s.28.1.7.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      From 6 April 2011, a controversial new provision redefines positive action to allow preference to be given in recruitment or promotion to a person from a protected group which is under-represented in the workforce, where there are two equally well suited applicants/candidates. This does not allow preference to be given to a person from an under-represented group who is less qualified, and where two people are equally well qualified it does not require preference to be given to the person from the under-represented group.

      The Government Equality Office has issued two publications for employers considering using this provision: Equality Act 2010: Step-by-step practical guide to using positive action when making appointments, which can be accessed via tinyurl.com/49ebudr (6 pages), and Equality Act 2010: What do I need to know? A quick start guide to using positive action in recruitment and promotion at tinyurl.com/6fqmlrb (12 pages).

      Among the points made by the GEO are that this positive action can be used at any stage of recruitment or promotion, but the action must be proportionate; the employer must reasonably believe the candidate has a protected characteristic; the employer must reasonably think there is disadvantage or under-representation, but do not need to have statistics to back this up; and this positive action can be used only where the two candidates are of "equal merit" and are "as qualified" as each other.

      Because of the risk of a discrimination claim by unsuccessful candidates, employers should be cautious about using this provision, and should carefully document their reasons for doing so and the criteria on which they assessed the candidates.

    Equality Act Part 12: DISABLED PERSONS: TRANSPORT

    This part (ss.160-188) applies to taxis and to private hire, public service and rail vehicles. It is not summarised here. The government is still considering the provisions about taxi accessibility.


    Equality Act Part 13: DISABILITY: MISCELLANEOUS

    • Reasonable adjustments (s.189 & sch.21). The schedule sets out procedures where consent must be obtained from a landlord before reasonable adjustments to premises or physical features can be made, and consent is refused or not provided.

      Regs.11-14 of the Equality Act 2010 (Disability) Regulations 2010 (www.legislation.gov.uk/uksi/2010/2128/contents/made) include additional provisions about landlord consent.


    • Disability-related improvements to residential premises (s.190). This replaces similar provisions in the DDA on disabled tenants or occupiers getting their landlord's consent to make disability-related improvements to their homes.

    Equality Act Part 14: GENERAL EXCEPTIONS

    • Differential treatment (s.191 & sch.22).
      Updated 10/10/10. This information updates s.28.1.7 & chapter 42 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      Schedule 22 sets out various situations in which there is statutory authority to treat a person less favourably because of a protected characteristic (for example, where the law allows a job to be open only to people with a particular characteristic), or services to be restricted to people with a characteristic. It also allows differential treatment of pregnant women for their own protection, and allows people of a particular religion/belief to be appointed to specified educational posts.


    • IMPORTANT: Charities (ss.193-194).
      Updated 11/1/12. This information updates s.5.6 & chapter 42 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      Charities are still allowed to have charitable instruments [see next paragraph] which restrict benefits to people who share a protected characteristic, except if defined by colour. But under a new provision in the Equality Act, they may restrict their benefits in this way only if it is either a proportionate means of achieving a legitimate aim (in other words, it can be objectively justified, and is a fair, balanced and reasonable way of achieving the aim) or is intended to prevent or compensate for a disadvantage.

      "Charitable instrument" is defined in s.194 as an instrument establishing or governing a charity. This would be the charity's constitution, trust deed, articles of association or other governing document, or something like a will or conveyance which established the charity. At one point some commentators thought that "instrument" might also include donations for a specific purpose (restricted funds), but the Charity Commission's most recent guidance makes clear that this is not the case.

      This charities exemption is a significant change from previous equality legislation, which allowed charity governing documents to limit their beneficiaries to particular groups, except when defined by colour, without having to justify this restriction. The new rule could put charities at risk of a claim if they cannot justify having objects which restrict services to people with a particular protected characteristic.

      The Charity Commission's initial summary guidance was published in September 2010, with more detailed guidance published on 31 August 2011. The detailed guidance, which can be accessed via tinyurl.com/7yy72zw, gives examples of the tackling disadvantage test, explains "legitimate aim" (an aim/object/purpose that has a reasonable social policy objective, is consistent with the charity's stated purpose, and is not in itself discriminatory), and explains when it is acceptable to discriminate in carrying out a legitimate aim (only if the restriction is appropriate and necessary to carrying out the aim, and only if it is a fair, balanced and reasonable way of doing so). It includes examples, and details of how the tests in the exemption relate to the public benefit test, to grant-making charities and to charities with restricted funds.

      If the charity's objects restrict the beneficiary group(s) on the basis of a protected characteristic or characteristics, and this cannot be justified under the disadvantage or legitimate aim tests, the restriction can be retained only if there is very strong justification for this. Otherwise, the charity would need to change its objects. Charity Commission consent would be needed for this.

      The guidance also summarises the other exemptions which apply or may apply to charities, such as the positive action provisions. These allow all charities and other voluntary organisations to provide services, activities or facilities specifically for people who share a specific protected characteristic, provided this is a proportionate way to alleviate disadvantage, reduce under-representation or meet their particular needs.

      The Commission expects charities to take action to prevent illegal discrimination. This may mean amending objects if they restrict the beneficiary group in a way that is now unlawful; ensuring services limited to specific groups fall either within the charities exemption or the positive action provisions; ensuring that funds received for a specific purpose or beneficiary group can be used in a way which is lawful; ensuring that any restrictions on membership are lawful; and for grant-making charities, ensuring any restrictions attached to grants allow them to be lawfully used by the recipient.


    • Employment, contract work or vocational training cannot be restricted to people who share a particular characteristic, except where supported employment is provided to people with the same disability or disabilities.


    • Provided they have done so at all times since before 18 May 2005, charities can continue to require members, applicants for membership or people wanting to use a benefit, facility or service to confirm that they accept a religion or belief.


    • As in the previous legislation, any provision in the governing document defining beneficiaries or the right to benefits on the basis of colour is void and is treated as if it were not there. So an object to provide education to black women would be interpreted as "to provide education to women".


    • A new provision allows single-sex activities for the purpose of promoting or supporting a charity, such as a women-only fun run.


    • Sport (s.195).
      Updated 10/10/10. This information updates ss.42.3.2 & 42.4.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      Single-sex competitions are still allowed where one sex is generally at a disadvantage because of physical strength, stamina or physique. It remains lawful to restrict participation of transsexuals where this is necessary to uphold fair or safe competition, but not otherwise.

      Nationality, place of birth, or length of time a person has lived in a particular place can continue to be used as a basis for selection for sports, games or other competitive activities, where the person will be representing a particular place or where the rules of the competition include those eligibility criteria.


    • Religion/belief (s.196 & sch.23).
      Updated 10/10/10. This information updates s.42.5.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      As in the previous legislation, non-commercial organisations based on religion/belief or set up to promote good relations between people of different religions/beliefs can restrict membership and access to activities, services or facilities on the basis of religion/belief, where this is necessary to comply with the purpose of the organisation or to avoid causing offence to members of the religion/belief.

      Such organisations also continue to be able to discriminate on the basis of sexual orientation in order to avoid conflict with the strongly held convictions of members of the religion/belief, but not in relation to any activity carried out on behalf of a public body under a contract with that body.


    • Communal accommodation (s.196 & sch.23).
      Updated 10/10/10. This information updates s.42.4.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      As in the previous legislation, single-sex communal accommodation continues to be able to be provided. Any discriminatory treatment of transsexuals must be objectively justified.


    • Age (s.197).
      Updated 11/3/12. This information updates s.42.8 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
      A new provision allows regulations to be made setting out exceptions to the prohibition on age discrimination. For details, see Age discrimination in service delivery.

    Equality Act Part 15: FAMILY PROPERTY — not yet in force

    This part (ss.198-201) is not summarised here. The government is still considering implementation of these provisions.


    Equality Act Part 16: GENERAL AND MISCELLANEOUS

    • Civil partnerships on religious premises (s.202).
      Updated 13/3/11.
      The prohibition on civil partnership registrations being held on religious premises will be removed. Religious organisations in England and Wales which wish to do so will be able to hold civil partnership registrations on their premises, but will not have to do so.

      This change will require amendments to the Approved Premises (Marriage and Civil Partnership) Regulations 2005. The Government Equalities Office consulted on these changes until 23 June 2011. Consultation details are at www.equalities.gov.uk/news/civil_partnership.aspx.


    • The remainder of this part (ss.203-218 & sch.24-28) is not summarised here. Sch.28 sets out where expressions are defined in the Act.

    DISCRIMINATION BY ASSOCIATION

    Updated 10/10/10. This information is included in s.28.1.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Discrimination or harassment because of association with a person who has any 'protected characteristic' is now unlawful (see the Key concepts section under Equality Act, above).

    The background to this change is that the Disability Discrimination Act 1995, as originally worded, applied only to discrimination against a disabled person (as defined in the Act and subsequent legislation). But in a decision on 17 July 2008 the European Court of Justice confirmed that the EU Directive for Equal Treatment in Employment and Occupation makes it unlawful to directly discriminate against or harass a non-disabled worker because of their association with a disabled person — in this case, a non-disabled mother looking after her disabled child.

    Following this decision, the employment tribunal confirmed on 27 November 2009 that all relevant sections of the Disability Discrimination Act 1995 should be read as applying not only to a disabled person but also to a person associated with a disabled person.

    The case was brought by Sharon Coleman, who had asked for flexible working to look after her four-year-old disabled son. Her employer, Attridge Law Solicitors, had granted flexible working to other mothers whose children were not disabled, but did not allow it for Coleman. She resigned, claiming unlawful discrimination on the basis of her son's disability. This kind of discrimination by association is called associative discrimination and was recognised as applying in some types of discrimination cases, but was not covered by the DDA as worded. Coleman eventually, in May 2010, received £12,000 in an out of court settlement.

    Parents of children under age 17 (or under 18 if the child is disabled) and carers of adults are entitled to request flexible working. However the employer can, for a variety of reasons, refuse the request. Now that associative discrimination is unlawful, employers will need to consider whether flexible working to care for a disabled person is a reasonable adjustment.


    DISCRIMINATION IS UNLAWFUL REGARDLESS OF MOTIVE

    Added 14/1/10. This information updates s.28.1.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    In a case involving Amnesty International, the employment appeal tribunal said in August 2009 that discrimination on the basis of ethnic origin is unlawful even if there is a benign reason for it. The case involved a Sudanese woman who was not hired as a researcher on Sudan, because she came from the north of Sudan and could have been perceived as being associated with ethnic groups linked with the Sudanese government. This, Amnesty argued, could compromise its perceived impartiality, and could put the researcher at risk to her health, safety and security.

    The EAT expressed unease at having to decide that Amnesty's action was unlawful, saying it could have implications for employers whose employees work in situations of acute political or ethnic tension. However, it said, race discrimination law does not allow for a defence of justification even in situations like this.

    The decision in Amnesty International v Ahmed is at www.bailii.org/uk/cases/UKEAT/2009/0447_08_1308.html.


    FOLLOW-UP ON HOMOPHOBIC BANTER CASE

    Added 28/5/11. This information updates s.28.1.6 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Under the Employment Equality (Sexual Orientation) Regulations 2003, harassment was defined as unwanted conduct on the grounds of sexual orientation that had the purpose or effect of violating a worker's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that worker.

    The court of appeal's landmark decision in English v Thomas Sanderson Ltd in 2008 made clear that harassment could occur if a person who does not have a characteristic is treated as if he or she does — a principle that is now part of the Equality Act 2010. In this case, the court said it could be harassment for a man known to be heterosexual to be called "faggot" and be subjected to homophobic "banter" because he lived in Brighton and had gone to boarding school.

    However when the case was referred back to the employment tribunal to decide whether English had actually suffered harassment on the basis of sexual orientation, the tribunal said he had not because he had taken part in the banter, his own behaviour had been "extremely offensive", and he had remained friends with his alleged tormentors. The tribunal said English's treatment had not, in his eyes, had the effect of creating an intimidating, offensive etc environment. This decision was upheld by the employment appeal tribunal on 21 February 2011.

    The EAT decision in Thomas Sanderson Blinds Ltd v English is at www.bailii.org/uk/cases/UKEAT/2011/0316_10_2102.html.


    A DEROGATORY REMARK MAY BE HARASSMENT

    Added 14/1/10. This information updates s.28.1.6 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    While working out her resignation notice, a woman of Indian origin was told by her manager, "We will probably bump into each other in future, unless you are married off in India." The employee was upset by this remark and after taking out a grievance which was not satisfactorily resolved, she claimed harassment on racial grounds.

    Under the Race Relations Act 1976 s.3A as amended in 2003, harassment is defined as unwanted conduct which has the purpose or effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. In its decision on 12 February 2009, the employment appeal tribunal said that earlier definitions of harassment, from before the statutory definition, should be largely disregarded.

    The EAT accepted that the purpose of the comment had not been to harass the employee, but it had had that effect and therefore fell within the statutory definition — although it was close to the borderline. At the end of its decision the EAT said that employers and tribunals need to be sensitive to the hurt that can be caused by racially (and other) offensive comments or conduct, but it is also important "not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase".

    The decision in Richmond Pharmacology v Dhaliwal is at www.bailii.org/uk/cases/UKEAT/2009/0458_08_1202.html.


    PREFERENCE IN RECRUITMENT AND PROMOTION

    Updated 13/3/11, links updated 18/4/12. This information updates s.28.1.7.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    From 6 April 2011, a controversial new provision in s.159 of the Equality Act 2010 redefines positive action to allow preference to be given in recruitment or promotion to a person from a protected group which is under-represented in the workforce, where there are two equally well suited applicants/candidates. This does not allow preference to be given to a person from an under-represented group who is less qualified, and where two people are equally well qualified it does not require preference to be given to the person from the under-represented group.

    The Government Equality Office has two publications for employers considering using this provision: Equality Act 2010: Step-by-step practical guide to using positive action when making appointments, which can be accessed via tinyurl.com/s3q (6 pages), and Equality Act 2010: What do I need to know? A quick start guide to using positive action in recruitment and promotion at tinyurl.com/cdvo5bq (12 pages).

    Among the points made by the GEO are that this positive action can be used at any stage of recruitment or promotion, but the action must be proportionate; the employer must reasonably believe the candidate has a protected characteristic; the employer must reasonably think there is disadvantage or under-representation, but do not need to have statistics to back this up; and this positive action can be used only where the two candidates are of "equal merit" and are "as qualified" as each other.

    Because of the risk of a discrimination claim by unsuccessful candidates, employers should be cautious about using this provision, and should carefully document their reasons for doing so and the criteria on which they assessed the candidates.

    S.159 of the Equality Act 2010 is at www.legislation.gov.uk/ukpga/2010/15/section/159.


    HAIR LENGTH AND SEX DISCRIMINATION

    Added 14/1/10. This information updates s.28.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Requiring a male employee to cut his shoulder length hair is not sex discrimination if it is part of a dress code that overall is "gender neutral", an employment tribunal ruled on 4 January 2010. A Metropolitan Police trainee claimed he was treated unfairly because he was required to cut his hair when a woman would not have to. But the EAT said the dress code, which requires employees' standard of dress to be "smart, fit for purpose, and portray a favourable impression of the service", was gender neutral, because a woman who breached the code in another way would be treated the same as the man had been.

    The decision in Dansie v The Commissioner of Police for The Metropolis is at www.bailii.org/uk/cases/UKEAT/2009/0234_09_2010.html.


    DISMISSAL ON GROUNDS OF PREGNANCY

    Added 2/12/12. This information updates ss.28.3.1, 32,2 & 34.7.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3). .
    Under the Equality Act 2010 and previously the Sex Discrimination Act 1975, less favourable treatment on the grounds of pregnancy and maternity leave is direct sex discrimination. Women have the right not to be subjected to any detriment for a reason due to their pregnancy, childbirth or maternity leave, and under the Employment Rights Act 1999, dismissal on the basis of pregnancy or childbirth is automatically unfair.

    You would think that an independent school for girls would be aware of this. But when Rebecca Raven, a teacher at Howell's School in Denbigh, North Wales, applied for maternity leave in May 2011, to start at the end of November, the school told her a few days later that she would have to leave at the end of the summer term. She was then told she could apply for a part-time post starting in September, which she did. When she was not appointed she appealed and issued a grievance but there was no response from the school. Not surprisingly, the employment tribunal found she had been unfairly dismissed and discriminated against, and in September 2012 awarded her nearly £34,000 compensation.

    Dr Philip Dixon, director of the Association of Teachers and Lecturers, said, "The supreme irony of a girls' school dismissing a teacher when she became pregnant almost beggars belief. This is an appalling example to give to pupils who are, hopefully, being educated to be young, independent women with fulfilling careers and lives."

    For summaries and articles about cases, do a Google search on key words in the case name or content.


    PREGNANCY GOSSIP CAN BE DISCRIMINATION AND HARASSMENT

    Added 28/5/11. This information updates s.28.3.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    From banter [see item above] to gossip ... another case illustrates the employer's obligation to take steps to ensure employees and others do not act in ways which are or could be discriminatory or could constitute harassment, and to take action when such behaviour occurs.

    In Nixon v Ross Coates Solicitors & another, the employee, Ms Nixon, was seen at the work Christmas party kissing and going into a hotel room with another employee. When she subsequently informed the firm's managing partner that she was pregnant, the HR manager was within an hour gossiping with other employees about who the father might be. This gossip continued and was spread around the office, even though Ms Nixon made it clear she found it distressing, took time off from work because of the gossip and asked to be transferred to another office.

    When she was refused the transfer and was not paid for the time she took off she resigned, claiming constructive unfair dismissal, sex discrimination, pregnancy-related discrimination and harassment.

    The employment tribunal initially found she had been constructively dismissed but reduced her compensation by 90% because of her behaviour "in acting so publicly, so foolishly and so irresponsibly". The tribunal found she had not been discriminated against or harassed.

    On appeal, the employment appeal tribunal said the award could only be reduced if Ms Nixon's conduct was a cause of or contributed to her resigning and claiming constructive dismissal. In this case it was the gossip, rather than her conduct, which led to the resignation, and the tribunal had been wrong to reduce the compensation for unfair dismissal.

    And because the gossip related directly to her pregnancy, the EAT upheld her claims of sex discrimination, pregnancy-related discrimination and harassment.

    The EAT decision in this case illustrates the importance of employers taking seriously employees' complaints or formal grievances about the way they are being treated by workmates and by third parties such as clients/service users, customers, suppliers and contractors, and taking reasonable steps to prevent inappropriate behaviour. It also illustrates just how widely the tribunals and courts interpret discrimination and harassment.

    The EAT decision is at www.bailii.org/uk/cases/UKEAT/2010/0108_10_0608.html.


    REQUIRING PAID WORK EXPERIENCE MAY DISCRIMINATE AGAINST WOMEN

    Added 2/12/12. This information updates ss.28.3.4 & 29.2.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3). .
    Ballymagroarty Hazelbank Community Partnership (BHCP), a charitable organisation in Northern Ireland, advertised for two neighbourhood regeneration officers, with a person specification requirement for "two years' relevant experience in a community development capacity (paid) gained within the last five years".

    During a six-year break from paid work to look after children, Nuala Crilly was involved in extensive unpaid community development and neighbourhood regeneration work. Although she had had paid jobs in the field before her career break, her work in the five years before applying for the post was all voluntary, and she was therefore not shortlisted. She brought a claim in the industrial tribunal (as employment tribunals are still called in Northern Ireland) on the ground that the requirement for relevant experience to have been paid discriminated indirectly against women.

    The tribunal said it was settled law, backed up by statistics, that women are more likely to have caring responsibilities for family members and to take breaks from employment. A recruitment provision, criterion or practice that does not take this into account can therefore, unless it is a proportionate means of meeting a legitimate aim, be discriminatory.

    BHCP said the requirement was necessary because they had recently lost key staff, and needed someone who could take on the full responsibilities of the post immediately, with minimal supervision and without needing extensive training.

    The tribunal said the requirement for experience to have been paid was not appropriate and necessary to meet this aim, because relevant experience could have been obtained through voluntary work. In any case, the tribunal said, BHCP was to provide a two-month induction for the new staff members which could have covered gaps in Crilly's experience. In December 2011 the tribunal awarded Crilly £14,667 for injury to feelings and loss of earnings and interest.

    The case transcript is on the Equality Commission for Northern Ireland website via tinyurl.com/cheub9w.


    BELIEF IN ANIMAL RIGHTS AND IN PUBLIC SERVICE BROADCASTING AS PROTECTED BELIEFS

    Updated 13/6/11. This information updates s.28.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    In Grainger plc v Nicholson (www.bailii.org/uk/cases/UKEAT/2009/0219_09_0311.html), the employment appeal tribunal said in November 2009 that factors to be taken into account when assessing whether a belief should be protected as a religious or philosophical belief are:

  • the belief must be genuinely held;
  • it must be a belief, and not an opinion or viewpoint based on the present state of information available;
  • it must be a belief as to a weighty and substantial aspect of human life and behaviour;
  • it must attain a certain level of cogency, seriousness, cohesion and importance;
  • it must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.


  • In a case involving Joe Hashman, a lifelong animal rights campaigner who was dismissed from his job at a garden centre when his employers discovered he was an active campaigner against fox hunting, the employment tribunal said on 4 March 2011, "The claimant has a belief in the sanctity of life. This belief extends to his fervent anti fox hunting belief (and also his anti hare coursing belief) and such beliefs constitute a philosophical belief for the purposes of the Employment Equality (Religion or Belief) Regulations 2003." [The regulations have since been replaced by the Equality Act 2010.]

    An article by Bindmans solicitors, who represented Hashman, is at www.bindmans.com/index.php?id=1089.

    Another employment tribunal judge said in Maistry v the BBC on 14 February 2011 that a deeply held belief that public service broadcasting has the higher purpose of promoting cultural interchange and social cohesion and that it creates a "public space" which enhances citizenship, can be protected as a religious or philosophical belief. The judge accepted that South-African born Devan Maistry's belief, which had been developed through his involvement as a South African student leader, trade unionist and journalist in campaigning against apartheid, was more than simply an opinion.

    Maistry worked for the BBC Asian Network and claimed the BBC discriminated against him on the several grounds, including his belief in the BBC's public service ethos. The BBC's lawyer said if Maistryís views were covered under the religion and belief regulations, belief in the aims of any public sector organisation, or even a private sector firmís mission statement, would be protected.

    A good summary from WBW Solicitors can be accessed via tinyurl.com/5wemwun.

    These decisions do not set a precedent, but they show how broadly "philosophical belief" might be interpreted.

    BELIEF IN CLIMATE CHANGE AS A PROTECTED BELIEF

    Added 1/5/10. This information updates s.28.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The Employment Equality (Religion or Belief) Regulations 2003, now replaced by the Equality Act 2010, cover religion, religious or philosophical belief, and lack of belief. In a widely publicised case in November 2009, the employment appeal tribunal confirmed that philosophical beliefs based on science, including strongly held beliefs about environmental issues and man-made climate change — or indeed, a belief that climate change is not man-made and that resources should be developed — could be protected under the regulations.

    The EAT said that factors to be taken into account when assessing whether a belief should be protected are:

  • the belief must be genuinely held;
  • it must be a belief, and not an opinion or viewpoint based on the present state of information available;
  • it must be a belief as to a weighty and substantial aspect of human life and behaviour;
  • it must attain a certain level of cogency, seriousness, cohesion and importance;
  • it must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.


  • The EAT said that political beliefs such as communism or a belief in free-market capitalism, or scientific beliefs such as Darwinism, could fall within this definition.

    The decision in Grainger plc v Nicholson is at www.bailii.org/uk/cases/UKEAT/2009/0219_09_0311.html.

    The substantive case — on whether Nicholson was unfairly dismissed and discriminated against because of his beliefs — was settled out of court in April 2010.

    EMPLOYEES REFUSING ON RELIGIOUS GROUNDS TO PROVIDE SERVICES TO SAME-SEX COUPLES

    Added 1/5/10. This information updates s.28.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Overturning an earlier decision by the employment tribunal, both the employment appeal tribunal and the court of appeal have ruled that Islington Council did not unlawfully discriminate against a Christian registrar on the grounds of her religious beliefs by requiring her to officiate at civil partnership ceremonies.

    The registrar had requested permission not to conduct the ceremonies as she believed that civil partnerships are against the will of God. When the Council withheld permission and she refused to carry out the work, she was disciplined for gross misconduct and brought claims of discrimination and harassment under the Employment Equality (Religion or Belief) Regulations 2003. The employment tribunal found in her favour and held that she had been directly discriminated against on the grounds of her religious belief.

    However the EAT (in December 2008) and then the court of appeal (in December 2009) held that she was not directly discriminated against by her employers, because the reason for the disciplinary action against her was not her religious belief but her conduct in refusing to carry out a legitimate duty as instructed. They further held that she had not been indirectly discriminated against, as the aims of Islington Council include providing non-discriminatory services and promoting equal opportunities, and the duty of registrars to officiate at civil partnerships is a means of achieving these aims.

    The court of appeal also considered whether there was a conflict of rights between the provisions of the Equality Act (Sexual Orientation) Regulations 2007 and article 9 of the European convention on human rights (freedom of thought, conscience and religion). It held that the prohibition of discrimination under the sexual orientation regulations takes precedence over the right to manifest one's religion, except where the regulations say otherwise (for example regulations allowing religious organisations, in limited circumstances, to discriminate in employment or service delivery on the basis of sexual orientation).

    In a similar case the employment appeal tribunal found in November 2009 that Relate Avon had not discriminated unlawfully on the basis of religion by dismissing a counsellor who refused, on religious grounds, to fully commit to providing psycho-sexual counselling to same-sex couples. On 29 April 2010 the court of appeal refused permission for the counsellor to appeal against the EAT decision.

    Ladele v London Borough of Islington is at www.bailii.org/ew/cases/EWCA/Civ/2009/1357.html.
    McFarlane v Relate Avon Ltd is at www.bailii.org/uk/cases/UKEAT/2009/0106_09_3011.html.

    In these cases, as in other cases such as those involving employees wanting to wear a crucifix or other religious symbols where the employer has a policy prohibiting this, the tribunals and courts made a distinction between an employee holding a belief, and manifesting that belief in the workplace.

    Stonewall's guide Religion and sexual orientation: How to manage relations in the workplace, includes case studies and advice on how to prevent and respond to incidents at work. It can be downloaded at www.stonewall.org.uk/workplace/1473.asp#religion.


    TIME OFF TO ATTEND FRIDAY PRAYERS

    Added 5/6/11. This information updates s.28.4.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    In Cherfi v G4S Security Services Ltd, the employment appeal tribunal confirmed that the company's refusal to allow Mr Cherfi, a security guard, to take time off to attend Friday lunchtime prayers put him at a disadvantage as a Muslim and could therefore have been indirect discrimination, but that it was a proportionate means of achieving a legitimate aim and was therefore not unlawful.

    G4S was required to have a specified number of guards on site at all times, and would face substantial financial penalties or potentially lose the contract if they did not. This included the guards being on site during their lunch break, for which they were paid. The EAT confirmed that avoiding the penalties or loss of contract was a legitimate aim for the company. The company offered options which would have enabled the employee to take part in Friday prayers, including using an on-site prayer room and a change in work pattern to work Monday-Thursday and a weekend day. The employee refused these options, and the tribunal and EAT said it was therefore proportionate for G4S to require him to have to remain at work, as he was contracted to do, during Friday lunchtimes.

    The EAT decision is at www.bailii.org/uk/cases/UKEAT/2011/0379_10_2405.html.


    MANAGING TIME OFF FOR RELIGIOUS HOLIDAYS AND OBSERVANCE

    Added 15/2/10. This information updates s.28.4.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    It can be difficult to weigh up the needs of workers who want or need time off for religious observance, versus the business needs of the organisation, versus the desire to avoid the risk of claims of discrimination on the basis of the worker's religion/belief or not being religious. Can a worker whose religion says they must not work on Saturday (or any other day) be required to work on that day, if there is a genuine need for the work to be done and there is no proportionate alternative to that particular worker doing it? Can non-Christian workers complain about having to take compulsory annual leave if the organisation closes over the Christmas period, or complain if the employer requires them to take annual leave for their own religious holidays?

    These and similar issues are summarised in "Managing employee leave for religious holidays and festivals" in the autumn 2009 issue of the Bates Wells & Braithwaite employment law update, via tinyurl.com/yazwrzr. The article looks at the issues, the legislation on religious discrimination, case law decisions, and good practice.


    INADVERTENT COMMENTS ABOUT SEXUAL ORIENTATION

    Added 18/4/12. This information updates s.28.5 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The court of appeal has ruled that where a person has made their sexual orientation known at their workplace, a casual comment about it by a colleague or manager does not, in itself, constitute discrimination.

    The case concerned Mr Grant, a Land Registry employee who had made it known at the Lytham office that he was gay, but did not reveal this when he was transferred to the Coventry office, preferring to wait and do so at a time of his choosing. A number of differences with his new manager — including that she had mentioned his sexual orientation to a colleague before he had taken up his post — resulted in him bringing several claims of sexual orientation discrimination and harassment.

    In relation to being outed by his manager the court of appeal found that even though Grant was upset by the disclosure, the facts that he had made his sexual orientation known at the Lytham office and that his new manager did not intend any ill purpose meant that it did not constitute direct discrimination or harassment. But the judge added that in other circumstances, outing someone could be direct discrimination and harassment.

    The decision in Grant v HM Land Registry is at www.bailii.org/ew/cases/EWCA/Civ/2011/769.html.

    For summaries and articles about cases, do a Google search on key words in the case name or content.


    ABOLITION OF DEFAULT RETIREMENT AGE

    Updated 18/4/12. This information updates ss.28.6.1 & 34.2.8 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The default retirement age of 65, the statutory retirement procedure and the right to request working beyond retirement age were abolished from 1 October 2011.

    From that date, compulsory retirement is lawful only if such a requirement is a proportionate means of achieving a legitimate aim [see article below].

    Under transitional arrangements which were in effect from 6 April 2011, employers could issue notification of compulsory retirement under the previous default retirement age procedure only until 5 April 2011, and only for employees who would be 65 or older on 30 September 2011.

    Under the Employment Equality (Age) Regulations 2006 which were in effect until 30 September 2011, the maximum notice of retirement the employer could give was 12 months, and the last date on which the employee could exercise his/her right to request to work beyond retirement was three months before the employer's notice runs out. So if the employer gave 12 months' notice of retirement on 5 April 2011 (the last possible day), the employee had until 5 January 2012 to exercise his or her right to request to work beyond retirement (discounting the day on which notice was given). If the employer gave on 5 April 2011 six months' notice (the minimum that could be given), the employee's deadline for requesting would have been 5 October 2011.


    In theory, an employer could agree a fixed or indefinite period of working beyond retirement if an employee made a request. But under the 2006 regulations if the employer agreed an extension of more than six months, it would have had to issue a fresh notice of intention to retire — which it could not do after 5 April 2011. So in practice, the last possible date for retirement of an employee under the existing law is 5 October 2012. This assumes the employee was given 12 months' notice of intention to retire on 5 April 2011 (the last day possible), taking him or her to 5 April 2012, and the employee requested and was given the maximum six month agreed extension which could be given without a fresh notice of intention to retire (going to 5 October 2012).

    ACAS guidance on the transitional arrangements is at www.acas.gov.uk/index.aspx?articleid=3203.


    AGEIST REMARKS AND AGE DISCRIMINATION

    Added 25/9/12. This information updates s.28.6.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    As with other forms of discrimination, ageist remarks can constitute unlawful discrimination. In the case of James v Gina Shoes, James was a manager in the employer's shoe factory. The managing director, as part of company's performance management process, made clear he was not happy with the James' work, asked whether his poor performance was because of his age (58), and said that if James had been younger he could have been given training. James resigned, claiming constructive unfair dismissal and age discrimination. At a subsequent grievance meeting the managing director said "you can't teach an old dog new tricks" or words to that effect.

    In discrimination cases, the claimant has to establish sufficient facts that on the face of it show that he or she has been treated less favourably than another person without the protected characteristic (age, disability, gender reassignment, marriage/civil partnership, pregnancy/maternity, race, religion/belief, sex, sexual orientation) was or would have been treated. The burden of proof then shifts to the respondent (the employer) to provide a credible, non-discriminatory reason for the treatment. If the respondent cannot provide an acceptable explanation, the tribunal or court must find that discrimination was the reason for the treatment.

    In this case the employment tribunal said the comments were just "fleeting thoughts" that did not in themselves show James had been treated less favourably than another person would have been. The employment appeal tribunal, in its decision on 18 January 2012, disagreed, saying the comments clearly suggested discrimination. The EAT sent the case back to the employment tribunal for consideration of the employer's reasons for the treatment.

    The EAT decision in R C James v Gina Shoes Ltd & others is at www.bailii.org/uk/cases/UKEAT/2012/0384_11_1801.html.

    For summaries and articles about cases, do a Google search on key words in the case name or content.


    RECURRENCE OF AN INTERMITTENT DISABILITY

    Added 1/5/10. This information is included in s.28.7.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Under the Disability Discrimination Act 1995 sch.1, disability is defined as a physical (including sensory) or mental impairment which has a substantial and long-term adverse effect on a personís ability to carry out at least one normal day to day activity. An effect is long-term if it has lasted or is likely to last for at least one year, and/or is likely to last for the rest of the personís life if this is likely to be less than a year.

    If an impairment ceases to have a substantial adverse effect or the effect is intermittent, the Act defines the effect as continuing if it "is likely to recur". Case law previously interpreted "likely to recur" as "more likely than not", but in a decision in July 2009, the House of Lords said it should be interpreted as "could well happen".

    This decision increases legal protection for people with conditions such as diabetes, epilepsy, rheumatoid arthritis, multiple sclerosis and others which are controlled by treatment or medication or may fluctuate for other reasons.

    The decision in SCA Packaging Ltd v Boyle (Northern Ireland) is at www.bailii.org/uk/cases/UKHL/2009/37.html.


    COMPARATOR FOR DISABILITY DISCRIMINATION

    Updated 10/10/10. This information is included in s.28.7.3 and 42.7 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Under the Disability Discrimination Act 1995 disability discrimination could be direct ("We won't let you in the restaurant because you are blind", or "We are dismissing you because you have an a severe back injury") or disability-related ("We won't let you in because you have a dog", where the reason for the dog is related to the disability, or "We are dismissing you because you have been off work for a year", where the absence is because of the injury).

    Following the Clark v Novacold case in 1999, the comparator in disability-related discrimination cases was a non-disabled person to whom the disability-related reason does not apply (because they are not disabled). The type of questions to be asked in the above examples would be "Would a person who is not blind, and who therefore does not bring a dog to a restaurant, be denied entry the restaurant? Would a person who does not have a serious injury, and has therefore not been off work for a year, be dismissed?" If the answer is no, a disabled person who is refused admission or is dismissed is being treated less favourably than the non-disabled person.

    In the case of London Borough of Lewisham v Malcolm and another on 25 June 2008, the House of Lords controversially said that Clark v Novacold had been wrongly decided, and the correct comparator should be a non-disabled person to whom the reason for the treatment does apply. The questions would be "Would a person who is not blind and brings a dog to a restaurant be denied entry? Would a person who does not have a serious injury or other disability, but has been off work for a year, be dismissed?" If the answer is yes, the disabled person is not being treated less favourably.

    The Malcolm case involved service delivery (the provision of housing) and it was unclear whether it would also apply to employment cases. On 5 February 2009, in Child Support Agency v Truman, the employment appeal tribunal confirmed that the Malcolm decision did apply in employment cases, and this was confirmed in subsequent cases.

    These decisions made it much easier for a service provider or employer to show that the reason for their allegedly discriminatory action was not for a disability-related reason — because they could say, for example, that anyone with a dog, or anyone with a long-term absence, would have been treated the same. Similarly it became more difficult for a disabled person to show that the reason for their treatment was related to their disability. This outcome was contrary to the purpose of the Disability Discrimination Act, which was to protect disabled people in situations such as these — not to make it harder for them to show that they had been treated less favourably.

    Now, under s.15 of the Equality Act 2010 which came into effect on 1 October 2010, the situation has reverted to what it was pre-Malcolm.


    DISABILITY ACCESS RESOURCES

    Added 6/9/10. This information updates s.28.7.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The Trades Union Congress (TUC) has produced a short but useful list of disability access resources used by the TUC or individual trade unions. These are divided into audio transcriptions; BSL/sign language interpreters; suppliers of furniture etc; mobility scooter hire; speech to text or palantype (a verbatim reporting machine); braille, audio and large print transcriptions; disability equality training; meeting venues; and access consultant accreditation.

    The list can be accessed via tinyurl.com/2g34a2h.


    EMPLOYER'S KNOWLEDGE OF A WORKER'S DISABILITY

    Added 1/5/10. This information updates s.28.7.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Employers are obliged to make reasonable adjustments where a provision, criterion, or practice operated by or on behalf of the employer, or any physical feature of the premises occupied by the employer, places a disabled worker at a substantial disadvantage compared with workers who are not disabled.

    Under s.4A(3) of the Disability Discrimination Act 1995, an employer does not have to make adjustments if it does not know, and could not reasonably be expected to know, that a disabled worker, applicant or potential applicant has a disability and is likely to be placed at a substantial disadvantage compared to persons who are not disabled.

    In Eastern & Coastal Kent PCT v Grey, the employment appeal tribunal said in 2009 that the duty to make reasonable adjustments does not apply if an employer does not know the person has a disability; does not know the person is likely to be substantially disadvantaged compared to others who are not disabled; could not reasonably be expected to know that the person had a disability; and could not reasonably be expected to know that the person is likely to be substantially disadvantaged.

    But in Department for Work and Pensions v Alam in November 2009, the employment appeal tribunal said that two questions arise in deciding whether the employer's duty arises:

  • Did the employer know both that the person was disabled and that he or she was likely to be placed at a substantial disadvantage?
  • If not, ought the employer to have known both that the person was disabled and that he or she was likely to be placed at a substantial disadvantage?


  • If the answer to both questions is no, the employer's duty to make reasonable adjustments does not arise.

    Department for Work and Pensions v Alam is at www.bailii.org/uk/cases/UKEAT/2009/0242_09_0911.html.

    The code of practice on disability discrimination and case law make clear that employers should do all they can to find out whether a person has a disability.

    For summaries and articles about cases, do a Google search on key words in the case name or content.


    EQUAL PAY AUDITS

    Updated 19/10/14. This information updates s.28.8 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Where an employment tribunal finds, in a claim brought on or after 1 October 2014, that there has been a breach of the equal pay provisions of the Equality Act 2010, it must order the employer to conduct and publish an equal pay audit unless one of the exceptions or exemptions applies. An employer which does not carry out an audit as ordered is liable to a civil penalty of up to £5,000.

    This follows a government consultation in 2012, inclusion of s.98 in the Employment and Regulatory Reform Act 2013 enabling regulations to be made giving employment tribunals the necessary powers to require equal pay audits in specified circumstances, and a consultation on draft regulations from May to July 2013. The government's response to the 2013 consultation was published on 19 June 2014.

    Exceptions in the regulations provide that the tribunal cannot require an audit where the employer has carried out an adequate pay audit within the previous three years, or it is clear without an audit whether any action is required to avoid equal pay breaches occurring or continuing, or the tribunal has no reason to believe there may be other breaches, or the disadvantages of an equal pay audit would outweigh its benefits.

    In addition the requirement to order an equal pay audit does not apply to micro-businesses (with fewer than 10 employees) and new businesses (in their first 12 months). The schedule to the Equality Act 2010 (Equal Pay Audits) Regulations 2014 sets out when the exemptions for micro businesses and start-ups apply.

    The audit must identify the reasons for pay disparities between men and women, the reasons for equal pay breaches, and action to be taken to avoid breaches occurring or continuing. The tribunal will decide whether the audit, when carried out, complies with the tribunal's order. If the audit complies, it must be published on the employer's website within 28 days and remain there for three years, unless the employer can show that doing so would result in breach of a legal obligation. If the audit does not the comply, the tribunal can make another order.

    An article by MacRoberts LLP notes, "Audits are limited to specified persons to be identified by the employment tribunal. A comprehensive and meaningful audit would ordinarily encompass the whole organisation. The restriction of compulsory audits to specified persons limits the burden on employers but materially limits their effectiveness. ... The government heralds compulsory equal pay audits as a tough new approach to tackling persistent pay inequality, but in the same breath estimates that only two or three businesses a year will be required to undertake them." This article is at www.macroberts.com/content/content_2226.html.

    CIPD's factsheet on equal pay and its equal pay FAQs can be accessed via tinyurl.com/7uo4wqn and tinyurl.com/o7cxjj9.

    The Equality Act 2010 (Equal Pay Audits) Regulations 2014 are at www.legislation.gov.uk/uksi/2014/2559/made.


    EQUAL PAY AUDITS

    Added 6/9/10. This information updates s.28.8 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The Equality and Human Rights Commission and British Chambers of Commerce published on 2 September 2010 a guide to help small and medium employers carry out a basic equal pay audit. They say it should take about half a day for an employer with 20 employees and five different jobs.

    The guide is at www.equalityhumanrights.com/equalpay-quickstart.


    GENDER PAY GAP REPORTING

    Updated 19/10/14. This information updates s.28.8 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    S.78 of the Equality Act 2010 enables regulations to be made requiring employers with at least 250 employees in Great Britain to publish information about the differences in pay between their male and female employees. The government said in December 2010 that it would not bring s.78 into force, and would instead encourage employers with 150 or more employees to report this information on a voluntary basis. This voluntary approach was launched in September 2011 as Think, Act, Report.

    The Guardian reported on 13 August 2014 that in response to a parliamentary question, the government said that only four employers had published their gender pay gap — out of 200 that had signed up for Think, Act, Report. The article is at tinyurl.com/qelhpzh.

    Information about Think, Act, Report is on the Gov.uk website via tinyurl.com/olkg3b5.

    ACAS published in September 2011 quick start guidance on voluntary gender analysis and reporting, at www.acas.org.uk/vger. CIPD's factsheet on equal pay, most recently updated in July 2014, and its equal pay FAQs, updated in October 2014, can be accessed via tinyurl.com/7uo4wqn and tinyurl.com/o7cxjj9.

    The Equality and Human Rights Commission proposed three indicators that could be used for reporting the gender pay gap: a single figure showing the overall difference between median earnings of men and women; a single figure showing the average difference between men's and women's starting salaries; or the differences between men's and women's pay by grade and job type.

    S.78 of the Equality Act 2010 is at www.legislation.gov.uk/ukpga/2010/15/section/78.


    SIX-YEAR TIME LIMIT FOR EQUAL PAY CLAIMS

    Updated 2/12/12. This information updates s.28.8 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Since the Equal Pay Act was implemented in 1970, nearly all equal pay claims have been heard in the employment tribunal, where the claim must be brought while the person is still employed or within six months of last being employed by the employer. But on 24 October 2012 the supreme court confirmed that equal pay claims can also be heard as breach of contract claims in the high court, where the limitation period for bringing claims is six years.

    The decision arose from a case involving Birmingham City Council. In 2007 and 2008 compensation for long-term underpayment was paid to 174 female employers, but others who had ceased to be employed by the council more than six months before were not eligible for the compensation. They then brought their claims in the high court.

    After the high court confirmed that the claims could be heard there, Birmingham Council sought to have the claims struck out, on the basis that s.2.3 of the Equal Pay Act 1970 allows cases to be struck out if the court considers that they "could more conveniently be disposed of" in an employment tribunal. Following the court of appeal's confirmation on 29 November 2011 that the claims could be heard in the high court, the council appealed to the supreme court.

    The supreme court confirmed in October 2012 that equal pay claims could be brought in the high court, since striking out the claims would mean they were out of time and could not be brought in the tribunal, and could thus not be "conveniently disposed of" there. The court suggested that Parliament should consider relaxing the strict six-month time limit for equal pay claims in the tribunal, with safeguards to reduce the risk of claimants deliberately delaying in order to bring a claim in the high court rather than tribunal.

    The supreme court decision is likely to pave the way for large numbers of claims that were time-barred from being brought in the employment tribunal. Successful claims could have significant impact on the equal pay liabilities of local authorities and private sector employers.

    The supreme court decision in Birmingham City Council v Huda Abdulla & others is at www.bailii.org/uk/cases/UKSC/2012/47.html.

    For summaries and articles about cases, do a Google search on key words in the case name or content.



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