The Equality Act 2010

&

The Equality and Human Rights Commission

Lynn Welsh

Head of Legal1

Equality Act 2010

Slide Number 2

Equality Act 2010

16 Parts; 28 Schedules – eg: • Key concepts (P2 and sch 1)• Services and public functions (P3, sch 2&3)• Premises (P4, sch 4&5)• Work and employment services (P5, Sch 6,7,8 & 9)• Education (P6, Sch 10,11,12,13 &14)• Associations (P7, Sch 15 &16)• Other unlawful conduct (P8)• Enforcement (P9, sch 17)• Advancing equality (P11, Sch 18 &19)• Exceptions (P14, sch 22 &23)

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Key concepts – Protected characteristics

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

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Gender reassignment

• Where a person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.

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Summary of definition

A person is protected from discrimination if they:

•Have proposed to undergo gender reassignment

•Are in the process of reassigning their sex

•Undergone the process, or part of the process, previously

•It may include medical gender reassignment treatment, but does not require medical treatment.

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Gender Recognition Certificates

Holders of Gender Recognition certificates must be treated according to their acquired gender.

•Can have a GRC despite being pre-operative (and not visually indistinguishable from acquired gender).

•May not have a GRC (out of choice, due to cost or due to being married and not wishing to divorce)

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Key concepts - Prohibited conduct

• Direct discrimination• Indirect discrimination • Harassment • Victimisation

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Direct discrimination

• A discriminates against B if, because of a protected characteristic, A treats B less favourably than he treats or would treat others.

• Discrimination by association or perception included

• Direct discrimination can never be justified except in relation to age

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Indirect discrimination

• A applies a provision, criterion or practice (PCP) to everyone

• The PCP puts, or would put, people with a particular characteristic at a disadvantage when compared with people without that characteristic

• The PCP puts, or would put, B at that disadvantage and

• The PCP is not a proportionate means of achieving a legitimate aim.

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Harassment

• A harasses B if he engages in unwanted conduct ‘related to a relevant protected characteristic’ which has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

• Includes association and perception

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Exceptions to services and public functions

• Insurance (Sch 3, Part 5, para 22 & 23)

• Marriage (Sch 3, Part 6)

• Separate and single sex services (Sch 3, Part 7)

• Communal accommodation (Schedule 23, Para 3)

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Exceptions – other

• Charities (s193 & s194)

• Competitive sports (s195)

• Gender reassignment harassment in schools (s85(10(a))

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Role and power of the Commission

Slide Number 14

Equality and Human Rights Commission

• Established October 2007 as the Commission for Equality and Human Rights

• Replaced EOC, CRE, DRC

• With a remit to cover nine equality strands and human rights in GB

• But excluding issues which would be addressed by the Scottish Human Rights Commission

General duties

• Promote equality and diversity

• Promote human rights

• Promote good relations between groups

• Monitor the law

• Monitor progress towards change

Commission powers

• To provide information and advice • Conduct inquiries • To publish codes of practice• To make grants• Enter into binding agreements• Enforce the public sector duties

- assessments and compliance notices

Legal powers

• Provide legal assistance to an individual bringing a claim under the EA, or which involves equality and human rights, but not human rights alone

• Intervene in cases at any level, which involve equality or human rights or both

• Bring Judicial Review proceedings in Commission’s name, which involve equality or human rights or both

• Apply for an interdict• Conduct investigations, including issuing unlawful act

notices, and action plans

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EHRC strategic priorities for using litigation powers

Where action would:• bring a significant positive impact in terms in an organisation

or across a sector• create greater understanding of rights and obligations under

the equality enactments or human rights law• address significant disadvantage or major abuse or denial of

human rights• clarify an important point of law under the Equality Act 2010 or

Human Rights Act • extend or strengthen protections and rights under the Equality

Act 2010 and human rights law.

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Test case issues

• ‘proposing’ to undergo gender reassignment – how someone ‘manifests’ this proposal

• Association and perception• Indirect Discrimination• Public functions• Discrimination and harassment in schools• Occupational Requirements complying with EU Framework Directive• GRCs in single sex services/communal accommodation • When someone without a GRC should be recognised for purposes of

exceptions?• Insurance exception• Discrimination by Associations• Instructing and causing discrimination

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The Commission’s legal team in Scotland

• Strategic human rights and equality litigationwww.equalityhumanrights.com/legal-and-policy/strategic-human-rights-and-equality-litigation/

• Legal Team Bulletin

www.equalityhumanrights.com/scotland/legal-news-in-scotland/equality-law-bulletin/

• Requests for assistance:legalrequestscotland@equalityhumanrights.com

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