The legal background to Equality and Diversity is primarily enshrined in the Equality Act 2010. This provides nine characteristics of individuals that are protected from discrimination. The Act also defines what may amount to discrimination in these instances.
There are several other groups who are protected under different areas of legislation and to different degrees. These include principally part-time workers, trade union members, employees with caring responsibilities and ex-offenders. While it is important to be aware of these other groups and to take care over their terms and conditions (in particular)
equal opportunity focusses on the protected characteristics.
Diversity is much more loosely defined and is essentially good management practice, on which we will touch later
The protected characteristics
- Gender re-assignment
- Marriage and Civil Partnerships
- Pregnancy and maternity
- Religion or belief
- Sexual orientation
Broadly, it is unlawful to make an employment decision using a person’s age either as the reason or as a factor in the decision. But there are a few exceptions particularly at the younger end of the scale. There are lower minimum wage rates for young people, for example.
Making decisions on any basis that could be age-related (such as on a person’s length of service) or providing service-related benefits could be discriminatory.
However if there is a “legitimate aim” and the decision is “proportionate to achieving that aim” then discrimination may be lawful. Consult the Finance Manager.
It can be difficult to come to terms with the fact that a disability has no practical implications for job performance, and yet in many circumstances that is precisely the case. Accomplished blind and deaf musicians are one reminder that disability need not be a barrier to achievement. We have to be very wary of mind-sets that lead us to make unjustified assumptions about others.
It is unlawful to treat a person less favourably, on account of their disability, than you would treat someone in a similar position who does not have that disability. Lara Nichols is required to make reasonable adjustments to premises, interview arrangements or work stations, etc, so that disabled applicants or workers are not put at any substantial disadvantage.
There is protection against unfavourable treatment for people who intend to undergo, have undergone or are undergoing gender reassignment.
Whether diversity is driven by a desire to be morally right, by commercial pragmatism, or by the law, the Equality Act underpins racial equality in employment and other areas.
However if you have a “legitimate aim” and the decision is “proportionate to achieving that aim” then discrimination may be lawful. Consult the Finance Manager.
Religion or belief
What amounts to a religion or a belief is not specified in statutory legislation but is interpreted by tribunals. Some decisions make interesting reading. Consult the Finance Manager.
Originally the social unacceptability of sex discrimination encouraged appropriate legislation, but much of it has since been driven further by membership of the European Union, in which the Treaty of Rome 1957 provides for equal treatment of men and women. Consequently sex discrimination has been unlawful in the UK for several decades.
Certain legitimate aims may justify discrimination if the decisions are proportionate, for example aims such as privacy, decency, welfare and authenticity. Consult the Finance Manager.
Originally unprotected this became a protected characteristic along with religion and belief in 2003.
Marriage and Civil Partnerships
It is often a point of interest that while married couples (including civil partnerships) are protected from discrimination, single people are not. However, the amount of protection here is limited to direct and indirect discrimination (see later).
Pregnancy and Maternity
Women have the right not to be unfairly dismissed because of pregnancy, the right to maternity pay, and the right to return to work following maternity leave. Dismissal on maternity-related grounds is now automatically unfair, irrespective of length of service or hours of work.
All women employees have the right to 52 weeks’ maternity leave and 39 weeks’ maternity pay. It is also important to recognise that the contract of employment now continues through the maternity leave period. This has a number of effects. For example, annual leave accumulates during the period of maternity leave and may have to be paid in lieu if the woman does not return to work. Pregnant women and those on maternity leave are also protected from direct discrimination, such as not being offered training.
In addition to maternity leave and pay there are a number of other parental rights including paternity pay and leave, parental leave and adoption leave, as well as time off for emergencies involving dependants.
Individuals cannot lawfully be discriminated against on the basis that they are (or are not) members of a Trade Union.
Part-time workers are protected from unfavourable treatment (such as poorer terms andconditions of employment).
Convictions can be regarded as “spent” after certain periods of time (depending on the length of the original sentence) and do not need to be declared. However certain organisations (schools and care homes for example) are exempted from the Rehabilitation of Offenders Act and can carrying out “DBS* checks” and take past convictions into
account in employment decisions.
*Disclosure and Barring Service – a government provided facility for such checks.
Types of discrimination
There are six defined ways in which employees (applicants and in some cases past
employees) can be subject to discrimination.
- Direct discrimination
- Indirect discrimination
- Discrimination by association
- Discrimination by perception
Direct discrimination means allowing one of the protected characteristics to influence employment decisions – eg in passing a woman over for promotion in favour of a less qualified man or selecting a white person in favour of a black person. Direct discrimination is often clear and consequently may be difficult to defend in court if it comes to it. However if the discrimination is a “proportionate means of achieving a legitimate aim” then a defence may be possible. This can be quite an uncertain concept, meaning any discrimination may have to be judged on its merits. Consult the Finance Manager.
Indirect discrimination occurs if conditions that effectively create discrimination are applied. These could be certain criteria on job specifications or advertisements if they tend to preclude women or men. For example, a job specification that determines a minimum height would be indirectly discriminatory and unlawful unless objectively justified. Since men tend to be taller than women this would discriminate indirectly against women. But it would also indirectly discriminate on racial grounds since some races are taller than others.
Care has to be taken when choosing selection criteriaand these have to be job requirement related. An example of objective justification, in the above instance, would be if there were safety implications to being below the minimum height. Consult the Finance Manager.
Discrimination by association
This is where an employer might discriminate directly against an employee because that employee associated with someone who has a protected characteristic. An example might be where the employee’s partner has a re-assigned gender. Association has a more frequent application where an employee is caring for a disabled partner or relative. To refuse an employee promotion for that reason would be discrimination by association.
Discrimination by perception
This form of discrimination is well illustrated by a case prior to the Equality Act where a heterosexual man was subject to ridicule for being homosexual, even though he was not. This was ruled to be discrimination and is now enshrined in the Equality Act as Perception Discrimination.
The particular form of discrimination in that instance was harassment, our next type of discrimination.
Harassment is defined by the Equality Act as ‘unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual’. It is also possible for colleagues to complain of harassment even if ridicule or offensive behaviour is not directed at them.
If an employee makes a claim of discrimination (or any other claim) to a tribunal and is then treated by the employer less favourably as a result, then that is victimisation. Victimisation also applies where an employee who supports another employee and is then treated less favourably themselves. Victimisation is a word often used loosely but in employment terms it applies only to behaviour directed at an employee who has sought to assert their statutory rights.
Decisions where discrimination can occur
Discrimination can occur wherever a decision is made about an employee; these are the main areas to consider:
- Recruitment and, particularly, selection
- Terms and conditions of employment
- Allocation of work / job role
- Discipline and grievance, including dismissal
- Provision of hours (in zero hours contrcts, for example)
- References (e.g. victimisation by not providing one where an employee has made an Tribunal claim)
Equal opportunities and diversity
These concepts a similar and invariably linked. The prime difference is the focus as one seeks to satisfy legislative expectations and the other is broader, encompassing good management practice.
The differences may be summed up as follows:
- entails removing discrimination against specific groups
- is primarily an issue for HR specialists
- relies on positive action
- has a moral/legislative focus
- is driven by domestic and EU discrimination legislation
- can be adapted to the existing organisation
- entails maximising employee potential through an appreciation and utilisation of people’s differences
- involves all managers
- is unlikely to rely on positive action because this will not be inclusive
- has a business focus
- has a global application in that it supports a variety of cultures
- challenges the nature, values and structure of the existing organisation