SYKES ANDERSON LLPSolicitors UK & International Law

Breakfast Seminar

THE 'NEW' EQUALITY ACT 2010Thursday 30 September 2010

Presented by Alan MassenhoveSYKES ANDERSON LLP9 Devonshire Square, London EC2M 4YFDX 729 London CityTel 020 3178 3770 Fax 020 3178 3771Email alan.massenhove@sykesanderson.comWeb www.sykesanderson.com

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Please note that the presenter is not authorised to advise on the interpretation and application of the law to particular circumstances or matters and any such comments made by the presenter will not constitute and must not be relied upon as advice.

The material for this presentation has been designed as an integral part of the presentation solely for the benefit of delegates attending the seminar. The material does not necessarily stand on its own and is not intended to be relied upon for giving specific advice.

To the extent permitted by law, neither the presenter nor Sykes Anderson LLP will be liable by reason of breach of contract, negligence or otherwise for any loss or consequential loss occasioned to any person acting, omitting to act or refraining from acting in reliance upon the seminar material or presentation of the seminar or arising from or connected with any error or omission in the seminar material or presentation of the seminar. Consequential loss shall be deemed to include, but is not limited to, any loss of profits or anticipated profits, damage to reputation or goodwill, loss of business or anticipated business, damages, costs, expenses incurred or payable to any third party or any other indirect or consequential losses.

No part of the seminar material may be reproduced in any form or for any purpose without prior permission of Sykes Anderson LLP.

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INTRODUCTION

Background

Development of discrimination law

EQUALITY ACT 2010 ('EA 2010') Received Royal Assent on 8 April 2010Majority comes into force on 1 October 2010

Main purpose…• 'Harmonize discrimination law'• 'Strengthen the law to support progress on equality'

Repeals or revokes etc 116 pieces of legislation (incl Sex Discrimination Act, Relations Act & Disability Discrimination Act etc)

Supplemented by Explanatory Notes, Statutory Codes of Practice (currently in draft), and Regulations and Orders (many yet to be made)

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EA 2010 has 216 sections in 16 Parts, and 28 Schedules…• PART 1 Socio-economic inequalities• PART 2 Equality: key concepts• PART 3 Services and public functions• PART 4 Premises• PART 5 Work• PART 6 Education• PART 7 Associations• PART 8 Prohibited conduct: ancillary• PART 9 Enforcement• PART 10 Contracts, etc• PART 11 Advancement of equality• PART 12 Disabled persons: transport• PART 13 Disability: miscellaneous• PART 14 General exceptions• PART 15 Family property• PART 16 General and miscellaneous

BEWARE 'trumping' throughout !

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PART 1 Socio-economic inequalities [ss 1 – 3]"Imposes a duty on certain public bodies to have due regard to socio-

economic considerations in making strategic decisions"

PART 11 Advancement of equality [ss 149 – 159]"Establishes a general duty on public authorities to have due regard… to the

need: to eliminate unlawful discrimination, harassment or victimisation; to advance equality of opportunity; and to foster good relations"

Positive action [s 158]

"Where persons who share a 'protected characteristic'…- suffer a disadvantage - have different needs or- have disproportionately low participationEA 2010 does not prohibit the taking of any action which is a proportionate means of…- overcoming or minimising such disadvantage- meeting such needs- enabling or encouraging such participation"

NOT 'positive discrimination' !!!

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PART 2 Equality: key concepts [ss 4 – 27]

"Establishes the key concepts on which the Act is based… These key concepts are then applied in the subsequent Parts of the Act"

Chapter 1 Protected characteristicsChapter 2 Prohibited conduct

Chapter 1 Protected characteristics ('PC') [s 4]

• Age• Disability• Gender reassignment• Marriage and civil partnership• Pregnancy and maternity• Race• Religion or belief• Sex• Sexual orientation

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Age [s 5]

• Can be particular age or age group (eg '21 year olds' or 'over 50s')

Disability [s 6]

"Physical or mental impairment that has a substantial and long-term adverse effect on ability to carry out normal day-to-day activities"

• 'long-term effect' = lasts or likely to last > 12 months (or rest of life)• 'normal day to day activities' - not just work activities !• Various 'deemed disabilities' eg cancer, HIV• Various 'excluded conditions' eg alcoholism, hay fever• Can incl progressive and recurring conditions• Disregard treatment & prosthesis (not spectacles, contact lenses

etc) • ALWAYS consult medical expert & check Sick Notes

Gender reassignment [s 7]

"Protects those who commit to live permanently in non-birth gender"• Reassignment of sex by changing physiological or other attributes• NOT 'transvestites' or 'cross dressers'• Incls proposing to undergo, undergoing, or has undergone a process• No medical supervision required

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Marriage and civil partnership [s 8]

• NOT persons who are single, engaged or divorced !• Objective test (no 'perception' cases)

Race [s 9]

• Incls - colour (eg black, white)- nationality (eg British, Indian)- ethnic or national origin (eg 'Roma', 'Kurd')- caste?

Religion or belief [s 10]

• Any substantive religion or philosophical belief (... or lack of !)• Belief genuinely held and not 'mere opinion or viewpoint'• Incls denominations or sects (eg Protestants, Catholics, Sunni,

Shia)

Sex [s 11]

• Male or female

Sexual orientation [s 12]

• Same sex, opposite sex or either sex - no need for participation8

Chapter 2 Prohibited conductExceptions incl…• Compliance with other law• Special rules for charities & religious based organisations• Communal accommodation• Sports and other competitive activities

Direct discrimination ('DD') [s 13]

"Because of a PC, A treats another person less favourably than he treats

or would treat others"• Requires real or hypothetical 'comparator'• Covers 'association' and 'perception' cases• 'Racial segregation' and 'Less favourable treatment of woman

because she is breast-feeding a baby > 26 weeks old outside of work' = deemed DD

• For PC of 'Age' only, DEFENCE if 'objective justification' ("treatment is a proportionate means of achieving a legitimate aim")

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Discrimination arising from disability [s 15]

"Because of something arising in consequence of a disability, A treats a disabled person less favourably"• DEFENCE if 'objective justification' (NB 'reasonable adjustments' !)• DEFENCE if "could not reasonably have been expected to know person

disabled"

Gender reassignment discrimination [s 16]

"Because of a gender reassignment related absence from work , A treats a transsexual person less favourably than he would treat that person if

theabsence was because of sickness or injury or some other reason"

Pregnancy & maternity discrimination: non-work cases [s 17]

"A treats a woman unfavourably because of her pregnancy""A, < 26 weeks of the dob, treats a woman unfavourably because she has given birth"• Covers breast-feeding a baby < 26 weeks• Covers still births > 24 weeks

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Pregnancy & maternity discrimination: work [s 18]

"A, > conception and < expiry of maternity leave or earlier return to work, treats a woman unfavourably because of her pregnancy or as a result of a pregnancy related illness""A treats a woman unfavourably because she is on compulsory maternity leave""A treats a woman unfavourably because she is exercising, seeking to exercise, or has exercised or sought to exercise, maternity leave"

Indirect discrimination ('ID') [s 19]

"A applies a provision, criterion or practice which is discriminatory in relation to any PC except 'Pregnancy and maternity'"

" A provision etc is discriminatory if (a) it has general application (b) it puts, or would put, persons who share a PC at a particular disadvantage when compared with persons who do not share that PC and (c) it puts, or would put, a person with that PC at that disadvantage "

• Requires real or hypothetical 'comparator group'• DEFENCE if 'objective justification' (NB 'reasonable adjustments' !)

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Duty to make adjustments for disabled persons [s 20]

1st Requirement

"Where a PROVISION, CRITERION OR PRACTICE puts a disabled person at a substantial disadvantage in comparison with non-disabled persons, A must take reasonable steps to avoid that disadvantage" [s

20(3)]

2nd Requirement

"Where a PHYSICAL FEATURE puts a disabled person at a substantial disadvantage in comparison with non-disabled persons, A must take reasonable steps to take to avoid that disadvantage" [s 20(4)]

3rd Requirement

"Where a disabled person would, but for an AUXILIARY AID (OR SERVICE), be put at a substantial disadvantage in comparison with non-disabled persons, A must take reasonable steps to provide it" [s 20(5)]

• 'reasonable steps' always incls information in accessible format• 'anticipatory duty' except in work cases (see later…)• Generally, must not pass on costs of compliance

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Harassment [s 26]

"Unwanted conduct by A…- related to any PC except 'Marriage & civil partnership' and

'Pregnancy & maternity' [s 26(1)] or- of a sexual nature [s 26(2)]the purpose OR EFFECT of which is to violate the dignity of another

person or to create an intimidating, hostile, degrading, humiliating or offensive environment for him"

"Unwanted conduct by A…- related to PCs of 'Gender reassignment' or 'Sex' or- of a sexual naturethe purpose OR EFFECT of which is to violate the dignity etc AND

because of rejection or submission A treats him less favourably" [s 26(3)]

• Where 'effect' must take into account - perception of 'victim' - whether reasonable for conduct to have that effect• Covers 'association' and 'perception' cases• Conduct need not be directed at 'victim' and can be a 'one off' !

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Victimisation [s 27]

"A subjects a person to a detriment because he has made or supported a complaint under the EA 2010, or A believes he has or may do so" [s 27(1)]

• BUT NOT if act in bad faith !

PART 8 Prohibited conduct: ancillary [ss 108 – 112]

Relationships that have ended"A must not discriminate against, harass or victimise a person after a relationship has ended " [s 108]

Liability of employers and principals"Anything done by an employee in the course of his employment treated as also done by the employer" [s 109(1)]

• Employer's knowledge or approval irrelevant• DEFENCE if employer 'took all reasonable steps' to prevent

"Anything done by an agent for a principal with the authority of the principal treated as also done by the principal" [s 109(2)]

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Liability of employees and agents"An employee or agent will be personally liable if he does something which is treated as a contravention of EA 2010 by the employer or principal" [s 110(1)]

• DEFENCE if reasonably relied on a statement by employer or principal

• Criminal offence (£5,000 fine) if false or misleading statement

Other"A person must not…- instruct [s 111(1)]

- cause [s 111(2)]

- induce [s 111(3)]

- knowingly help [s 112(1)]

another person to do anything which would contravene EA 2010"

• DEFENCE if reasonably relied on a statement by other person• Criminal offence (£5,000 fine) if false or misleading statement

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PART 3 Services and public functions [ss 28 - 31]

"Makes it unlawful to discriminate against, harass or victimise a person when providing a service (or goods or facilities) or when exercising a public function"

Exceptions incl…

• Where PC is 'Marriage & civil partnership'• For PC of 'Age', where person < 18 yrs

UNLAWFUL ACTS…Person providing a service (or goods or facilities)• To the public or a section of the public• Whether for payment or not

"A must not…- DISCRIMINATE against a person seeking services [s 29(1)]

- DISCRIMINATE against a service user [s 29(2)]

- HARASS (a) a person seeking services or (b) a service user [s 29(3)]…

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- VICTIMISE a person seeking services [s 29(4)]

- VICTIMISE a service user [s 29(5)]"

• Treatment incls… - terms on which the service is provided - not providing service to usual quality or in usual manner - terminating the service - any other detriment

Person exercising a public function"A must not do anything that constitutes DISCRIMINATION, HARASSMENT or VICTIMISATION" [s 29(6)]

Both"Duty to make REASONABLE ADJUSTMENTS applies" [s 29(7)]

• 1st, 2nd & 3rd Requirements• BUT nothing requires - service-provider to 'fundamentally alter nature of services he provides or his trade or profession' - person exercising public function to 'act beyond his powers'

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PART 4 Premises [s 32 – 38]

"Makes it unlawful to discriminate against, harass or victimise a person when

disposing of or managing premises"

Exceptions incl…

• Where PC is 'Age' or 'Marriage & civil partnership'• Hotels rooms etc

• DEFENCES of 'private disposal exception' and 'small premises exception' (NB complex and variously applied !)

UNLAWFUL ACTS…Disposals• Incls sale, assignment, letting and subletting etc

"A must not…- DISCRIMINATE against a person seeking the premises [s 33(1)]

- HARASS a person seeking the premises" [s 33(3)]

- VICTIMISE a person seeking the premises [s 33(4)]"18

• Treatment incls… - terms on which premises are offered - not disposing of the premises to that person - treating person less favourably than others seeking the

premises - any other detriment

Permission [s 34] and Management [s 35]

Similar provisions apply where 'third party consent' required or where let premises 'managed' by landlord and/or agent

Reasonable adjustments [s 36(1)] (… for let premises only!)

"For LET PREMISES landlord and manager must comply with 1st & 3rd Requirements"

"For COMMON PARTS landlord must comply with 2nd Requirement"• ONLY where (a) disabled tenant or other lawful occupier uses

premises as his only or main home and (b) request received• Prescribed procedure

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PART 5 Work [s 39 – 83]

"Makes it unlawful to discriminate against, harass or victimise a person at work or in employment services etc…"

• Wide application• Exceptions incl special treatment of - national minimum wage - statutory maternity pay - statutory retirement (> 65 yrs) - insurance related matters - etc

DEFENCES to 'Discrimination' (variously applied throughout Part 5)• 'Occupational requirement' ("A applies a requirement to have a

particular PC which (a) is an occupational requirement and (b) is a proportionate means of achieving a legitimate aim")

• 'Occupational requirement (organised religion)'• 'Occupational requirement (religious ethos)'

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UNLAWFUL ACTS…Employees and applicants [ss 39 - 40]

"A must not…- DISCRIMINATE against a person seeking employment [s 39(1)]- DISCRIMINATE against an employee [s 39(2)]- VICTIMISE a person seeking employment [s 39(3)]- VICTIMISE an employee [s 39(4)]- HARASS (a) a person seeking work or (b) an employee" [s 40(1)]

• Treatment incls - whom to offer employment - terms of employment - promotion, transfer or training - benefit, facility or service - dismissal - any other detriment• NOT where applicant > 65 yrs (or will be < 6 months)• NOT where benefit etc based on < 5 yrs of service• NOT where benefit etc based on > 5 yrs of service if fulfils

business need

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• NOT where enhanced redundancy pay based on SRP

• 'Harassment' incls treatment by third party (eg customer or client) !

• Where third party harassment employer deemed to harass employee if

- occurs in course of employment - > 2 other occasions of harassment (need not be same third

party) - employer knew of previous occasions and - failed to take 'reasonable steps' to prevent

"Duty to make REASONABLE ADJUSTMENTS applies" [s 39(5)]

• 1st, 2nd & 3rd Requirements

• DEFENCE if 'did not know, and could not reasonably be expected to know, that person seeking work OR EMPLOYEE is disabled'

• NOT 'anticipatory duty' (only exception to rule !)

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Contract workers [s 41]

"A must not… - DISCRIMINATE against a contract worker [s 41(1)]

- HARASS a contract worker [s 41(2)]

- VICTIMISE a contract worker [s 41(3)]"

• NB Not concerned with 'person seeking work' !

• Treatment incls - terms of work - not allowing worker to do, or continue to do, work - benefit, facility or service - any other detriment

"Duty to make REASONABLE ADJUSTMENTS applies" [s 41(4)]

• 1st, 2nd & 3rd Requirements• 'anticipatory duty' - no defence of did not know etc !

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Similar UNLAWFUL ACTS variously in respect of…• Partners [s 44] & Limited liability partnerships [s 45]

• Personal offices: appointments, etc [s 49)] - 'Office or post (not elected or political) in which a person personally discharges a function under the direction of another and that person is paid remuneration (not just expenses)'

• Public offices: appointments, etc [s 50] & Public offices: recommendations and approvals for appointments, etc [s 51]

- 'Appointment (not elected or political) made, recommended or approved

by the Government'

• Qualifications bodies [s 53]

• Employment service-providers [s 55] - 'Employment agencies and businesses, and providers of vocational training, careers services and guidance'

• Trade organisations [s 57]

• Local authority members [s 58]• Associations [ss 100 – 107] etc

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Recruitment [s 60(1)]

"A person must not ask about the health of an applicant for work (a) before offering work or (b) before including applicant in a pool of successful candidates to be offered work later" (VERY RISKY !!!)• CAN ask questions necessary to… - identify suitable candidates where 'occupational requirement' - establish if capable of 'carrying out function intrinsic to work' - establish whether able to participate in recruitment process - making reasonable adjustments to enable participation - monitoring diversity - supporting 'positive action'

• NOT unlawful act per se, but evidence towards substantive claim• Only E&HRC can enforce

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Discussions about pay [s 77]

"A contractual term is unenforceable if it purports to prevent or restrict a person from…

- disclosing information about the terms of his work [s 77(1)]

- seeking disclosure of information from a colleague or former colleague

about the terms of the colleague's work [s 77(2)]"

• Applies to employment and appointment to a personal or public office

• Not a 'ban' per se

PART 10 Contracts, etc [ss 142 – 148]

"A term of a contract is unenforceable if it…- constitutes, promotes or provides for treatment of any person that

is prohibited by EA 2010 [s 142(1)]

- purports to exclude or limit any provision of the EA 2010 [s 144(1)]"

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PART 9 Enforcement [ss 113 – 141]

JurisdictionGenerally• employment tribunal where contravention of Part 5 Work• county court for all other contraventions

Time limitsGenerally• proceedings in tribunals < 3 months from relevant act• proceedings in courts < 6 months from relevant act• conduct extending over a period treated as done at end of

period• failure to do something occurring when person decides on it

Obtaining information• Prescribed 'questionnaire' procedure• Inferences drawn where (a) failure to answer a question < 8

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Burden of proof"If there are facts from which a tribunal or court could decide, in the

absence of any other explanation, that A has contravened the EA 2010, it must find that the contravention occurred, unless A shows that he did not contravene" ('reverse burden of proof')

Remedies• Declaration

• Compensatory damages

• Damages for injured feelings !

• Amount of compensation = as could be awarded by a county court

• 'Appropriate recommendation' (tribunals only) (new)

• Where unintentional 'ID', tribunal must not award damages unless first considers other disposals - IMPORTANT !

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SUGGESTIONS… Review all existing Policies Introduce up to date Equal Opportunities Policy Consider whether to use 'positive action' Remove all gagging clauses from contracts, handbooks and

salary review letters Consider set pay scales Consider publishing pay data Review recruitment procedures to remove all questions about

health or disability

This information has been prepared by Sykes Anderson LLP as a general guide only and does not constitute advice on any specific matter. We strongly recommend that you seek professional advice before taking action. No liability can be accepted by us for any action taken or not taken as a result of any information or advice given or omitted.

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