The characteristics of sex, sexual orientation, gender reassignment, pregnancy or maternity, religion or belief, race, marriage or civil partnership protected by the Equality Act 2017 came into force on 1.1.19. The remaining two characteristics of age and disability come into force on 1.1.20 together with the principle of equal pay for work of equal value for pay equality between men and women. The purpose of this guide is to explain how businesses and organisations can prepare for the introduction of the Act and the benefits of doing so.
EQUALITY AND FAIRNESS IN THE WORKPLACE
Fairness in the workplace is a vital part of a successful business or public body. It is supported by the law - the Equality Act 2017 - and also makes good business sense in running and developing an organisation.
The aim of the Equality Act is to improve equal job opportunities and fairness for employees and job applicants. Organisations should have policies in place so these outcomes happen and, just as importantly, to prevent discrimination and MIRS can provide advice on this.
Under the Act, it is unlawful to discriminate against people at work because of nine areas termed in the legislation as protected characteristics:
- gender reassignment
- marriage and civil partnership
- pregnancy and maternity
- religion or belief
- sexual orientation
The majority of these characteristics will be protected by January 2019 with Age and Disability being added in January 2020.
If an employee believes they have been discriminated against, they will usually connect this to one or more of the nine protected characteristics listed above. But the way in which they have been allegedly discriminated against will determine which type or types of discrimination apply within their protected characteristic. Further guidance to this will be available on our website.
Employees who believe they have been subjected to discrimination, or who believe they have witnessed discrimination in the workplace, should be able to feel confident in raising the matter with their employer and assured it will be taken seriously.
The Equality Act makes certain exemptions and exceptions where in some limited situations treating employees and job applicants less favourably can be lawful. For example, in certain and rare circumstances, it may be lawful for an employer to specify that applicants for a job must have a particular protected characteristic under the Act.
An employer can take what the law terms 'positive action' to help employees or job applicants it thinks:
- are at a disadvantage because of a protected characteristic and/or
- are under-represented in the organisation, or whose participation in the organisation is disproportionately low, because of a protected characteristic and/or
- have specific needs connected to a protected characteristic.
An employer must be able to show evidence that any positive action is reasonably considered and will not discriminate against others.
Both employers and their employees can be held responsible and liable for their actions where they discriminate.
To effectively stay within the law, promote equality and prevent discrimination, an employer should have a policy in place so all employees know what is acceptable and expected of them as individuals and as part of the organisation. It can be helpful for the policy to also state an individual to approach if they have concerns or complaints. Managers should be trained in how to deal with issues and staff should all be made aware of the policy.
There are different options including policy changes, disciplinary procedures and mediation for handling concerns or complaints about discrimination. An employer should be clear how it will handle such a matter. However, if the complaint is lodged by the employee as a grievance, the employer must follow the certain minimum procedures as with all other types of grievance.
THE BENEFITS TO ORGANISATIONS
Encouraging greater awareness and understanding of the different protected characteristics, alongside tackling discrimination, can help to reduce the chance of complaints, disciplinary action or an employment tribunal claim - and avoid the costs and disruption to the organisation.
Improve team spirit - an employee or groups of employees who are being discriminated against are likely to be unhappy, less productive and de-motivated, and this can have a negative impact on the whole workforce.
Attract, motivate and retain staff, and enhance an organisation's reputation as an employer. If staff who have been discriminated against feel undervalued or 'forced out' and leave, the organisation will run up the costs of recruiting, training and settling in new staff when its reputation as both a business and employer may be damaged.
Having staff at all levels from a wide range of backgrounds and skills can help develop a working environment producing ideas and solutions that might not come from a smaller array of diverse groups. A diverse workforce can also help an organisation better understand and meet diverse customer expectations.
In the UK, where the Equality Act was introduced in 2010, The Department for Business Innovation and Skills produced a report on the Business Case for Equality and Diversity available from GOV.UK - The business case for equality and diversity: a survey of the academic literature.
The report says the firms that have benefited from equality and diversity have done so by making them part of their business strategy, instead of treating them separately.
Evidence, though, shows there is not a "one-size-fits all" approach. Businesses and organisations know their own markets and sectors best, and should address equality and diversity with that in mind. That does not mean they can ignore equality and diversity if they think they are not in their business interests, as employers must still comply with the law.
The report suggests businesses may be overlooking potential advantages. For example, having staff with roots in other countries and cultures can help firms build relations with a wider range of customers, and market its products or services more appropriately and sensitively. A driver for some firms is in enhancing a brand's reputation.
Promoting equality and diversity within an organisation will give a better chance:
- that the best candidate from the widest possible pool of applicants is selected for the job
- of reasonable adjustments for the disabled at work to make sure they are not disadvantaged
- of a workplace which values the differences between staff and which expects an environment of fairness, dignity and respect
- of being given the opportunity for work-life balance - for example, through working flexible hours or working from home
- of getting training, career development and promotion opportunities based on merit, skills, knowledge and experience relevant to the role.
THE PROTECTED CHARACTERISTICS
The Act protects people of all ages. However, different treatment because of age is not unlawful direct or indirect discrimination if you can justify it, ie if you can demonstrate that it is a proportionate means of meeting a legitimate aim. Age is the only protected characteristic that allows employers to justify direct discrimination.
However the Act does allow limited exceptions in some areas, including pay and other employment benefits, based on length of service. There are also some limited exceptions and exemptions relating to the Minimum Wage, redundancy payments, insurance and pensions.
The Act protects against disability discrimination. It defines a person a person as disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
The Act puts a duty on you as an employer to make reasonable adjustments for staff to help them overcome disadvantage resulting from an impairment. An example of this would be software to help staff with dyslexia.
Some impairments may are automatically seen considered disabilities such as Cancer, HIV or MS. Other progressive conditions would be considered a disability as soon as their symptoms manifest themselves.
Life style choices that result in conditions such as alcoholism or illicit drug addiction or not covered but any other conditions that manifest as a result may be.
The Act provides protection for transsexual people. A transsexual person is someone who proposes to, starts or has completed a process to change his or her gender. The Act no longer requires a person to be under medical supervision to be protected – so a woman who decides to live as a man but does not undergo any medical procedures would be covered.
Marriage & Civil Partnership
The Act protects employees who are married or in a civil partnership against discrimination. Single people and couples not in a legally recognised relationship are not protected.
Pregnancy & Maternity
A woman is protected against discrimination on the grounds of pregnancy and maternity during the period of her pregnancy and any maternity leave to which she is entitled.
This would include discounting any absence due to pregnancy related illness or appointments when making decisions about her employment.
If an organisation is considering redundancies then an employee who is pregnant or on maternity leave may have additional rights.
The Equality Act protects employees from discrimination, harassment and victimisation because of the protected characteristic of Race. Race is an umbrella term which covers:-
- Colour, e.g. black and white
- Ethnic Origin, e.g. Sikhs, Jews and Romany Gypsies.
- National Origin, e.g. Welsh and Irish.
In the Equality Act, religion includes any religion. It also includes any denomination or sect within a religion. It also includes a lack of religion. Therefore it offers protection for those who do not follow a certain religion or no religion at all. A religion must have a clear structure and belief system.
Belief means any religious or philosophical belief or a lack of such belief. A belief must have a substantial effect on an individual’s way of life.
The Act does not cover more local or regional distinctions such as those who consider themselves to be a ‘Geordie’ or a ‘Scouser’.
Political affiliations are unlikely to be protected but are covered to an extent under the Employment Act 2006.
Both men and women are protected under the Act. Employees are protected from discrimination, harassment and victimisation. For example favouring one gender over the other would not be acceptable unless it was justifiable to achieve an aim. This part of the Act also protects against sexual harassment.
The Act protects bisexual, gay, heterosexual and lesbian people. For example an employer must ensure that an employee in not bullied on the grounds of an actual or perceived sexual orientation.
TYPES OF DISCRIMINATION
The Act covers several different types of discrimination along with ‘harassment’ and ‘victimisation’ although not all will apply to every characteristic. These are:-
Direct discrimination occurs when someone is treated less favourably than another person because of a protected characteristic they have or are thought to have, or because they associate with someone who has a protected characteristic. Examples would be using a racial slur against an individual or dismissing an individual due to their sexual orientation.
Discrimination by association
This is direct discrimination against someone because they associate with another person who possesses a protected characteristic. An example would be harassing an individual because a family member was undergoing gender reassignment.
This is direct discrimination against an individual because others think they possess a particular protected characteristic. It applies even if the person does not actually possess that characteristic. An example would be using homophobic language against an individual who you believed to be gay.
Indirect discrimination can occur when you have a condition, rule, policy or practice in your company that applies to everyone but particularly disadvantages people who share a protected characteristic. Indirect discrimination can be justified if you can show that you acted reasonably in managing your business, ie that it is ‘a proportionate means of achieving a legitimate aim’. An example of indirect discrimination could be a strict dress code that discriminates against a certain religion. An example of a legitimate aim could be requiring practicing Christian to work on a Sunday to meet a particular contract.
Harassment is “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”.
Harassment applies to all protected characteristics except for pregnancy and maternity and marriage and civil partnership. Employees will now be able to complain of behaviour that they find offensive even if it is not directed at them, and they need not possess the relevant characteristic themselves.
Third party harassment
This is harassment against your employees by people (third parties) who are not employees of your company, such as customers or clients. The Equality Act makes employers potentially liable when harassment has occurred on at least two previous occasions, you are aware that it has taken place, and have not taken reasonable steps to prevent it from happening again. An example would be where a regular customer makes repeated sexist remarks to an employee who has complained to their employer and it is allowed to continue.
Victimisation occurs when an employee is treated badly because they have made or supported a complaint or raised a grievance under the Equality Act or are suspected of doing so. An employee is not protected from victimisation if they have maliciously made or supported an untrue complaint. An example of victimisation could be when an employee is ostracised by their team after complaining to management about a colleague making fun of a person with a disability.