The main parts of the Equality Act 2010 (the Act) outlined below became law on 1 October 2010. The Act aims to simplify the law by putting all equality law together in one place. The law is stronger in some areas and offers more protection to some people.
The Act replaces strands or grounds of equality used in previous legislation with the term protected characteristics. There are 9 protected characteristics in the new Act. These are:
Age - An age group can include people of the same age and people form a range of ages. If people fall in the same age group they share the protected characteristic. There are no defined age groups. What makes an age group will depend on the circumstances. Examples of age groups could include 'over 50's' or '21 year olds'. A person aged 21 does not share the same characteristics of age as people in their 40's. However a person aged 21 and a person aged 44 can share the characteristic of being in the 'under 50' age range.
Disability - The definition of disability is similar to the one in Disability Discrimination Act 1995. There is no longer a requirement to consider a list of capacities when considering whether a person is disabled. For example a man with depression finds the simplest tasks or decisions difficult. This includes getting up in the morning or getting washed and dressed. He is forgetful and can't plan ahead. This has a "substantial adverse effect" on his ability to carry out normal day-to-day activities. He has had periods of depression for over two years. This would be considered to be "long-term" and he is likely to be a disabled person.
Marriage and civil partnership - Marriage is defined in the Marriage Act 1949 as a legal union between one man and one woman. A civil partnership is a legal union between two people of the same sex which is registered under the Civil Partnership Act 2004.
Pregnancy and maternity - Pregnancy and maternity outside the workplace is defined as during pregnancy or within 26 weeks of giving birth. Pregnancy and maternity in the work place is defined as pregnancy, pregnance related maternity leave, when on compulsor maternity leave or when exercising the right to take ordinary or additional maternity leave. Employers must also provide suitable rest places for breast feeding mothers.
Race - Race and racial groups are protected characteristics. This includes colour, nationality and ethnic or national origin. Colour includes being black or white. Nationality includes being a British, Australian or Swiss citizen. Ethnic or national origins include being from a Roma background or of Chinese heritage. A racial group could be "black Britons" which would include people who are black and British citizens.
Religion or belief - This is the same as in previous legislation and includes the lack of a religion or belief. Religions must have a clear structure and belief system. Denominations within a religion such as Protestants and Catholics are considered to be a religion. A "philosophical belief" must be genuinely held and belief just not an opinion or viewpoint. It must be a weighty and substantial part of human life and behaviour, have a level of clarity, seriousness, cohesion and importance. It must be worthy of respect in a democratic society, compatible with human dignity and not conflict with the fundamental rights of others. A cult involved in illegal activities would not meet these criteria. Buddhism, Christianity, Hinduism, Islam, Judaism, Sikhism and Zoroastrianism are all religions. Beliefs such as humanism and atheism are beliefs but supporting a particular football team would not.
Sex - The protected characteristics are those of men and women. Men share characteristics with other men and women with other women.
Sexual orientation - The is the same as in the previous legislation. It covers a people who are attracted to others of the same sex (a gay man or lesbian), the opposite sex (heterosexual) or both sexes (bisexual). A man who is attracted to men and women is bisexual even if he only has relationships with women. A man and a woman who are both attracted only to people of the opposite sex share a sexual orientation. Under the Act a gay man and a lesbian share a sexual orientation.
Transsexuality - A transsexual person has the protected characteristic of gender reassignment. A transsexual person does not have to be under medical supervision but must live or intend to live permenantly in the gender opposite to that assigned at birth. A woman making the transition to being a man and a man making the transition to being a woman both share the characteristic of gender reassignment. So does a person who has just started the process of changing his or her sex and a person who has completed the process. They can also share the characteristics of the gender they are transitioning to.
The Act removes some of the differences in types of dsicrimination. Where possible each characteristic is given the same protection. The types of discrimination are:
Discrimination arising from disability
Discrimination by association
Discrimination by perception
Failure to make reasonable adjustments
Harassment by a third party
This happens when a person is treated less favourably than another person because of a protected characteristic. It applies in employment and service provision.
This new type of discrimination replaces previous protection that was not effective. It occurs when a disabled person is treated unfavourably because of something connected with their disability and the treatment cannot be justified. This type of discrimination can occur only if the service provider or employer know or can reasonably be expected to know that the person is disabled. This means you may need to take reasonable steps to find out whether someone is disabled.
This type of discrimination already applied to race, religion or belief and sexual orientation. The Act has extended this to cover age, disability, sex and transsexuality. This is direct discrimination against a person because they associate with another person who possesses a protected characteristic. For example if you treat the carer of a disabled person less favourably because of their caring responsibilities. It applies in employment and service provision.
This happens when a person is discriminated against because you think they have a protected characteristic when in fact they don't. For example if you discriminate against someone because you think they are gay they will be protected even if they are not. This can apply when you treat someone less favourably even if you know they don't have that characteristic.
Service providers and employers are required to make changes for disabled customers and employees or potential customers or employees. The Act outlines three types of reasonable adjustments.
adjustment to a provision, criterion or practice
adjustments involving the provision of auxiliary aids and services
adjustments to physical features
This applies to all protected characteristics except for marriage and civil partnerships and pregnancy and maternity. Employees and service users can complain of behaviour that they find offensive even if it is not directed at them. They can also complain even if they don't possess the relevant characteristic.
This already applies to sex. The Act extends it to age, disability, race, religion or belief, sex, sexual orientation and transsexuality. Employers may be liable for harassment of their employees by people who are not employees of their company. This can include customers, contractors or clients. You will only be liable when harassment has ocurred on at least two previous occasions, you are aware the harassment has taken place and have not taken reasonable steps to prevent if happening again.
This happens when there is a rule, policy or practice that applies to everyone but which disadvantages people who share a particular characteristic. It applies in both employment and service provision.
This happens when someone is treated badly because they have done something in relation to the Act. This could be making or supporting a complaint or raising a grievance about discrimination. It could also be because you suspect that someone may have done or may do these things. A person is not protected from victimisation if they have maliciously made or supported an untrue complaint. It applies in employment and service provision.
In this section we explain how the law applies to each equality strand. We include examples of possible discrimination. We also tell you about work we are doing these areas.
All types of discrimination apply to age in employment except disability related discrimination and the duty to make reasonable adjustments. The law applies to all employers, vocational training providers, trade unions, professional organisations, employer organisations and trustees and managers of occupational pension schemes. It covers current employees, past employees, prospective employees and trainees. Discrimination following the end of a working relationship covers things like references.
Retirement may be a fair reason for dismissal. You must tell your employee the date on which you want them to retire. You should tell them they have the right to ask to past retirement age. Employees have the right to ask to work beyond 65 or any other retirement age you set and you must consider these requests.
If discrimination takes place at work or at a time and place associated with work then you may be responsible for the actions of your employees. You may have to pay compensation unless you can show you took steps to prevent the discrimination.
Direct discrimination - During an interview an applicant says that she took her qualification 30 years ago. She has all the skills and competences for the job. The organization decides not to offer her the job because of her age.
Discrimination by association - June is a project manager and is looking forward to a promised promotion. After she tells her boss that her elderly mother is living with her after a stroke the promotion is withdrawn. The boss thinks June will not have time to concentrate on her new job because of her caring responsibilities. This may be discrimination against June because of her association with an older person.
Harassment - A young employee is continually told he is 'wet behind the ears' and 'straight out of the pram' which he finds humiliating and distressing. This could be harassment.
Indirect discrimination - An employer advertises a job. They say candidates must have 5 GCSE's. They do not allow for equivalent qualifications or experience. This could indirectly discriminate against an older person who took their qualifications before GCSEs were introduced.
Victimisation - An employee claims discrimination on the grounds of age. A colleague gives evidence on their behalf at the employment tribunal. When she applies for promotion she is rejected because her manager says she is a 'troublemaker' for giving evidence at the tribunal.
There are some circumstances where age is not a protected characteristic and it would not be unlawful to discriminate.
Objective justification - it may be necessary to fix a minimum or maximum age for the recruitment or promotion of employees. For example a waiter or waitress would not able to serve alcohol if they are under 18.
Retirement age - if a person is older than or within six months of the employer's normal retirement age or 65 you can to refuse to recruit them.
Genuine occupational requirement (GOR) it may be lawful to only employ people from a certain age group if it is essential to the job. For example an actor required to play someone of a certain age.
What we are doing
We have included actions relating to age in our Equality Scheme in the field of employment and service provision. This is because we are committed to equality for people of all ages. Actions we have taken include:
- Reviewing our employment policies to make sure we do not discriminate against people because of their age
- Reviewing our retirement policies and employing people over the retirement age
- Dealing effectively and consistently with harassment and violence towards young people.
All types of discrimination apply to disability. Two types of discrimination only apply to disabled people. They are discrimination arising from a disability and the duty to make reasonable adjustments. The law aims to reduce discrimination and promotes inclusion for disabled people. It covers employment, education and goods and services. It does not matter if a disabled person is paying for the service or not they must always be given access to it.
The Act provides for a higher degree of protection than previous law. You can discriminate if you treat a disabled person unfavourably because of something arising from their disability. For example a disabled person may need to take a period of disability-related leave. You can justify unfavourable treatment if it is a proportionate means of achieving a legitimate aim. You must know or reasonably be expected to know the person is disabled.
Pre-employment health-related checks
There are only limited circumstances when you can ask health-related questions before you have offered someone a job. You can ask these to help you:
- decide if you need to make reasonable adjustments in the selection process
- decide whether someone can carry out a task that is essential to the job
- monitor diversity among people making applications for jobs
- take positive action to assist disabled people
- make sure a person has a disability where the job genuinely requires the jobholder to have a disability
Once a person has passed the interview and you have offered them a job you can ask appropriate health-related questions.
Direct discrimination - Accommodation services are choosing applicants for cleaning jobs in halls of residence. One applicant meets all the requirements but has a severe facial disfigurement. They don't get the job as the supervisor thinks other employees and students could feel uncomfortable.
Discrimination arising from disability - An employee with a visual impairment is dismissed because he cannot do as much work as a non-disabled colleague. To justify the dismissal the employer would need to show that it was a proportionate means of achieving a legitimate aim.
The licensee of a pub refuses to serve a person who has cerebral palsy because she believes that he is drunk as he has slurred speech. The slurred speech is a consequence of his disability. If a reasonable person would have known that the behaviour was due to a disability this could be discrimination arising from disability, unless she could show that ejecting him was a proportionate means of achieving a legitimate aim.
Discrimination by association - Ms Coleman joined Attridge Law as a legal secretary in 2001. A year later she gave birth to a son with serious respiratory problems. She claimed managers called her 'lazy' when she requested time off to care for him. She accepted voluntary redundancy then brought a claim for constructive dismissal and disability discrimination. This was referred to the European Court of Justice. The Court concluded that discrimination is not limited only to people who are disabled. Where an employer treats an employee who is not disabled less favourably based on the disability of a person whose care is provided primarily by that employee it is discrimination.
Reasonable Adjustments - The only access to a library is via a set of steps. Wheelchair users cannot get in to the library. The Council must make a physical adjustment so they can. For example they could install a ramp.
A person with dyslexia applies for a job where applicants must do a timed exercise involving writing a short report. He normally writes very well but under stress and time pressure he finds it difficult to maintain his usual standard. It would be a reasonable adjustment for him to be given extended time to take the test.
Harassment - Andrew attends a day centre for adults with learning difficulties. Some of the staff make fun of him by mimicking him. This could be harassment related to disability.
Indirect discrimination - An outdoor centre provides a variety of activities. On safety grounds it asks for a medical certificate of good health for everyone taking part in activities. Jane cannot get a certificate as she has depression and her doctor does not consider her 'in good health'. Health and safety is a legitimate aim but the blanket application of the policy is unlikely to be justified because some conditions do not prevent people taking strenuous exercise safely.
Victimisation - In the harassment example above a member staff at the day centre supported Andrew to make his complaint. She was treated differently by her manager and colleagues this could be victimisation.
There are some examples where it would not be unlawful to discriminate.
Aeroplanes, ships and ferries you do not have to make reasonable adjustments to a plane, ship or ferry to make it accessible for disabled people. You might have to change other things such as your booking system.
Genuine Occupational Requirement if a task is a genuine occupational requirement and a particular disabled person would be unable to carry out that task even with reasonable adjustments you do not have to employ them.
Health and safety if you have a genuine concern that allowing a disabled person to use your services would put either there health and safety or someone else's health and safety at risk you can refuse to provide the service to the disabled person.
Incapacity to contract if a disabled person does not have the mental capacity to enter into a contract they you can refuse to offer them a service where a contract is needed. For example a bank loan or insurance.
Private homes if you are renting out a room in your own home you do not have to let it to a disabled person.
What we are doing
We follow the 'social model' of disability. Although we cannot deny impairments exist we recognise that it is other people, organisations and systems in society that create barriers which prevent disabled people from having the same quality of life as non-disabled people. Disabled people are often patronised and not given the same access to a full range of services, work and social opportunities as other people. We are working to make sure disabled people are not prevented from accessing our services and employment opportunities. The actions we are taking include:
- Building strong relationships with disabled groups and consulting regularly with disabled people using the residents survey, focus groups and shaping your service forum
- Our residents magazine 'Citylife' has been approved by the Plain English campaign and is available in other formats on request
- We have made a commitment in our Information for All policy to produce all information in plain English and to provide alternative formats on request
- Earning the two-ticks symbol for our commitment to fair and equal treatment for disabled people in employment
- Having a dedicated Human Resources Disability Adviser
- Changing the way people can apply for jobs
- Providing travel expenses for disabled people who can't use public transport to attend interviews
- Checking all our buildings for disability access and identifying ways of making them more accessible using a special fund set aside for this purpose
- Running an advertising campaign asking motorists to park with more consideration and not on pavements
- Allowing Blue Badge holders to drive in areas of our cemeteries that are usually pedestrian only
- Having a city-wide network of customer service centres where people can access over 90 services. All customer service staff have had disability awareness training and will help disabled people access our services
The Act protects people who are married or in a civil partnership. It does not protect single people. Direct discrimination, indirect discrimination and victimisation all apply to marriage and civil parnership. The public sector equality duty does not apply to marriage and civil partnership.
Harassment does not apply to marriage or civil partnership. If you harass someone because of their marriage of civil partnership and it is less favourable treatment then it is likely to be direct discrimination.
Civil partners will be treated the same as married couples for the purposes of tax, nationality and immigration, inheritance, liability for maintenance and child support, tenancies, employment and pension benefits and protection from domestic violence.
If people in a civil partnership are treated differently to married people then this is potentiall discriminaton on the grounds of sexual orientation.
A man cannot claim discrimination because of special treatment given to a woman in connection with pregnancy or childbirth.
Indirect discrimination and harassment do not specifically apply to pregnancy and motherhood but discrimination in these areas could still amount to indirect sex discrimination.
Discrimination in the workplace because of pregnancy or pregnancy-related illness or maternity leave is included in the Act. This covers the period of the pregnancy and statutory maternity leave.
You can not demote or dismiss an employee or deny her training or promotion opportunities because she is pregnant or on maternity leave. You must not take account absence due to pregnancy-related illness when making a decision about employment.
Victimisation - A customer complains that a member of staff in a cafe told her she was not allowed to breastfeed her baby except in the toilets. Because she complained the cafe has told her she is barred altogether. This could be victimisation
All types of discrimination except discrimination from disability and duty to make reasonable adjustments apply to race. The law applies in the areas of employment, education and service provision.
The Act allows political parties to increase the diversity of their candidates by reserving a certain number of places on every shortlist for ethnic minority candidates.
Direct discrimination - A black male applies for a job he is refused on the grounds that he is black although he is the best candidate for the job.
Harassment - Moira, a black woman, is shopping in her local grocery store and overhears a shop assistant and a customer chatting and making racially abusive comments. This makes her feel humiliated and degraded. This could be harassment even though it was not directed at her.
Indirect discrimination - A practice of excluding job applicants who live in a certain area of a city when that area is occupied by a high proportion of ethnic minority people could be discrimination as this would put ethnic minority candidates at a disadvantage.
Victimisation - An employee reports a colleague to human resources for discriminating against a customer because of their race. Their manager then refuses to give a reference when they apply for a new job saying they don't get on well with colleagues.
There are some areas where race is not a protected characteristic and it would not be unlawful to discriminate.
Associations and charities if these are set up for people from one ethnic or national group discrimination on the basis of nationality or ethnic or national origin is not unlawful. Discrimination based on colour would be.
Genuine occupational qualification - you can discriminate on the grounds of colour or nationality where being from a particular racial group is a genuine occupational qualification. For example employing a Chinese person as a waiter or waitress in a Chinese restaurant for authenticity purposes.
Charities and voluntary organisations you can provide benefits for a particular racial group but cannot discriminate on basis of colour only on race, nationality or national or ethnic origin.
Sport Discrimination on grounds of nationality, place of birth or length of residence is lawful when selecting people to represent a particular place or country in a sport or game or deciding who is eligible to compete in any sport or game according to the rules of the competition. You cannot discriminate on the grounds of colour.
What we are doing
We have included actions relating to race in our Equality Scheme both in the field of employment and service provision. Actions we have taken include:
- Taking on a number of graduates under the PATH scheme. PATH (Positive Action Training Highway). This is a training scheme for BME Graduates which gives them two years work experience at the Council and study towards a Post Graduate qualification connected to the area they are training in.
- Through our Active Newcastle Programme we provide specific activities for men and women from BME communities including walking, cycling and swimming programmes and opportunities to become volunteers, leaders and coaches
- Our Translation Service provides a co-ordinated approach to communicating with people whose first language is not English. Strict quality checks have been designed to ensure accurate translation
All types of discrimination except harassment, discrimination from disability and duty to make reasonable adjustments apply to religion and belief. The law applies in employment, educat ion and service provision.
Direct discrimination - During an interview it becomes apparent that a job applicant is Hindu. Although he has all the skills and competences for the job he is not offered the job because he is a Hindu.
Discrimination by perception - A volunteer for a charity running a bring-and-buy sale tells Sanjeev, who is Sikh, that they don't serve Muslims because of concerns about Islamic extremists. Sanjeev says he is not Muslim but the volunteer does not believe him and refuses to serve him. This could be direct discrimination because of his perceived religion even though Sanjeev is not Muslim.
Harassment - A Muslim's colleagues are hostile towards him mentioning current world events. He is distressed by their attitude. His manager does nothing to stop this saying it is banter and he should just get on with his job. Although harassment is not specifically covered he is treated less favourably than others it could be direct discrimination.
Indirect discrimination - An organisation has a dress code that men can not wear ponytails. This may discriminate against Hindu men who wear a Shika, (a small knotted tuft of hair worn at the back of the head, as a symbol of their belief). This could be discriminatory if it cannot be justified.
Victimisation - After giving evidence for a colleague who had brought an Employment Tribunal claim against the organisation on the grounds of religion or belief a worker asks to attend a training course. She is refused permission and another colleague is chosen because the manager wants to punish her for giving evidence at the tribunal.
There are some areas where religion or belief is not a protected characteristic and it would not be unlawful to discriminate.
Genuine occupational requirements if there is a genuine occupational requirement for a worker to have a particular religion or belief to do a job or comply with the religious or belief ethos of the organization it may not be unlawful to discriminate. To decide if this applies it is necessary to consider the nature of the work and the context in which it is carried out. For example it may be lawful to insist the headteacher of a faith school has a certain religion but it may not be lawful to expect a cleaner at the school to follow the religion.
Public functions most functions carried out by or on behalf of a public authority must be free from discrimination on grounds of religion or belief. This includes goods, facilities and services provide d as a public function. There are a number of exceptions including judicial and legislative functions, some educational functions and some immigration functions.
Religious organisations exceptions apply to organisations whose purpose is to practice, advance or teach a religion or belief, to carry out some activity within the framework of a religion or belief or to maintain good relations between people of different religions or beliefs.
For example, humanist societies can restrict membership to humanists.
Charities you can set up a ccharity to provide a benefit to members of a particular religion or belief community as long as the charitable instrument gives the reason for the restriction.
Faith schools faith schools can restrict the provision of goods, facilities and services, or restrict the use or disposal of their premises so there is not conflict with the beliefs of the faith. They cannot refuse admission to the school of a pupil who does not practice the faith.
What we are doing
We have included actions relating to religion and belief in our Equality Scheme in employment and service provision. Actions we have taken include:
- Introducing religion and belief training sessions
- Collecting religion and belief employment monitoring data on a quarterly basis
- A 24 hour on call service 7 days a week for the registration of Jewish and Muslim deaths
- Supporting Holocaust memorial day
- Supporting the Safe Newcastle Partnership to safeguard children and young people from forced marriage
- Delivering specialist training and preventative work on forced marriage and honour based violence.
All types of discrimination except discrimination from disability and duty to make reasonable adjustments apply to gender.
The law applies in employment, education and service provision. It applies equally to men and women. The law applies whether a service is being paid for or not. It applies to incidents in the work place and may extend to out of work activities such as Christmas parties and drinks in the pub after work.
Discrimination against part-time workers may be indirect discrimination against women. Nationally and in most organizations the majority of part-time workers are women and a requirement to work full time may affect more women than men.
If a husband paid housekeeping to his wife any money or property from this belongs to both parties equally. This is extended to cover money paid to either party by either party. Permission for political parties to use all-women shortlists is extended until 2030.
Direct discrimination - A nursery refuses to take on an apprentice as he is male and the job is given to a female.
Discrimination by perception - Sam is a tenant who calls the local authority to query an electrical repair. Sam has a high voice and Bob, the engineer dealing with the query, thinks that Sam is a woman. Bob is very dismissive of Sam's query. He refuses to explain the issue properly because he thinks a woman would not understand it. This is could be discrimination because Sam has been wrongly perceived to be a woman.
Harassment - A male employer repeatedly calls one of his staff babe and darling when asking her to carry out tasks. She asks him to stop but he carries on emphasising those words. This may be harassment.
Indirect discrimination - An employee says that senior managers cannot work flexibly. This is likely to have a worse impact on women who are more likely to be combining work with childcare responsibilities. Unless the employer can objectively justify this it will be indirect discrimination.
There are some areas where gender is not a protected characteristic and it would not be unlawful to discriminate.
Genuine occupational qualification You can discriminate where a job needs a person of a specific gender for authenticity purposes or for reasons of decency and privacy. For example a job involving physical contact or providing personal services. It may not apply if an employer has enough staff to take on the duties without too much inconvenience.
Religion Sex discrimination is lawful in relation to employment by organised religion if it is to comply with the doctrines of the religion or to avoid offending a significant number of its followers. This exemption is limited to employment by religious organisations such as churches or mosques.
Services may be restricted to one sex if they take place somewhere that is used for the purposes of an organised religion and the facilities or services are restricted to one sex to comply with the doctrines of that religion or to avoid offending a significant number of its followers. It does not apply to other services provided by a religious organisation such as charity shops.
Schools There are exceptions for single sex schools. Case law states that there must be equal provision for both sexes. Pregnancy cannot be used as a reason for exclusion. Health and safety should not be used to prevent a pregnant pupil attending school. The school's aim should be to keep the pregnant pupil or school age mother in learning.
Special care, supervision or attention You can restrict services to one sex where they are provided at an establishment for people who need special care, supervision or attention, for example, a hospital or resettlement unit.
Serious embarrassment You can restrict a service to one sex if users are likely to suffer 'serious embarrassment' if the opposite sex was present. This applies if users are likely to be in a state of undress. The exception may apply to sauna facilities or swimming sessions.
Physical contact You can restrict services to one sex if physical contact between the user and another person is likely. For example a self-defence class.
Single Sex Voluntary Organisations - A voluntary organisation can restrict its membership to one sex or provide services and benefits to one sex if this is the main purpose of the organisation. For example a voluntary boy's group which refuses to admit girl members.
Sport - It is not unlawful to restrict any sport, game or activity of a competitive nature to competitors of one sex. For example it is not unlawful for the Football Association to refuse to allow women to play in the men's football league. This does not apply to non-competitive sporting activity.
What we are doing
We have included actions relating to gender including transsexuals in our Equality Scheme in the field of employment and service provision. Our actions include:
- Raising awareness about the scope and nature of domestic violence
- Developing a 'Women in Senior Positions' mentoring programme
- Using monitoring data to make sure men and women have equal access to services
- Encouraging applications from men and women in areas where they are underrepresented
- Introducing women only swimming sessions
- Improving street lighting around the city to make vulnerable people feel safer at night
All types of discrimination except harassment, discrimination from disability and duty to make reasonable adjustments apply to sexual orientation. Although harassment is not specifically covered if someone suffers less favourable treatment as a result of harassment this could be direct discrimination. The law applies to employment, education and service provision.
Private clubs and associations cannot discriminate but can restrict membership rights if their main objective is to allow benefits to be enjoyed by persons of a particular sexual orientation. Discriminatory advertisements and instructing or causing another person to discriminate are also unlawful.
Real and perceived sexual orientation is covered as is the real or perceived sexual orientation of a person's associates, for example family or friends. Discrimination does not need to be targeted at an individual and can include a culture which tolerates homophobic jokes.
Direct discrimination - Whilst being interviewed, a job applicant says that she has a same sex partner. Although sh e has all the skills and competences required of the job holder, the organisation decides not to offer her the job because she is lesbian.
Discrimination by association - A worker has a son who is gay. People in the workplace often tell jokes about gay people and tease the worker about his son's sexual orientation. This is discrimination even though it is not the victim's own sexuality which is the subject of the teasing.
Discrimination by perception - Samantha, who is straight, goes on a Gay Pride march to support some of her lesbian, gay, bisexual and transgender colleagues. While there collects a 'Support Gay Pride' badge. After the march she goes into the community centre bar for a drink. The barman refuses to serve her as he believes that she is a lesbian because of the badge she is wearing and because he saw her on the march.
Harassment - Steve is continually being called gay and other related names by a group of employees at his work. Homophobic comments have been posted on the staff notice board about him by people from this group. Steve was recently physically pushed to the floor by one member of the group but is too scared to take action. Steve is not gay and the group know he isn't gay. This could be harassment because of sexual orientation.
Harassment by a third party - A general manager kept referring to a gay colleague in offensive terms. Senior managers were aware but did nothing to stop it; This could be harassment by a third person.
Indirect discrimination - A gym offers discounted membership to married couples. This would be indirect discrimination if the same discount is not offered to people in Civil Partnerships.
Victimisation - Fabio makes a formal complaint against his Primary Care Trust because he feels that the Trust has discriminated against him bec ause he is gay. The complaint is resolved through the organisation's grievance procedures. As a result of making the complaint Fabio is removed from his GP's list.
There are some areas where gender is not a protected characteristic and it would not be unlawful to discriminate.
Religion an exception exists for religious organisations or those acting on their behalf if that religion has specific beliefs relating to sexual orientation.
Genuine occupational qualification you may be able to treat people differently if there is a genuine occupational requirement that a person should have a particular sexual orientation. You would need to consider the nature of the work and the context in which it is carried out. For example an organisation advising on and promoting gay rights may be able to show that it is essential to their credibility that their chief executive is gay.
Spouse exceptions it is not unlawful to restrict benefits to people who are married or in a civil partnership to the exclusion of people who hold neither status. The treatment must be equal for civil partners and married couples.
Religion differences of treatment on grounds of sexual orientation for employment by a religious organization may be lawful. For example the leader of a faith, mosque or temple.
What we are doing
We have included actions relating to sexual orientation in our Equality Scheme in employment and service provision. Actions we have taken include:
- Registrars are available to carry out Civil Partnerships both in the Civic Centre and at other licensed venues.
- We have a dedicated community development worker who works with Lesbian, Gay, Bisexual and Transgender communities (LGBT)
- We have introduced sexual orientation monitoring in our employment procedures and to s ome areas of service provision
- We provide sexual orientation awareness training for staff and councillors
- Support Northern Pride to develop a festival for LGBT people
- Extended the ARCH reporting system to include homophobic incidents
- We enter the Stonewall Workplace Equality Index each year which recognises the top 100 list of gay friendly employers. Entering the index enables the Council to measure and improve our performance on LGB equality.
Supporting local Transgender people to raise awareness and promote positive messages about Transgender issues
Developing opportunities for Transgender people to meet and socialise
The government implemented the main parts of the Act on 1 October 2010. We will need to think about these changes in employment and when delivering services. The main changes are:
Anyone who provides goods, facilities or services must allow a woman to breastfeed if they want to.
You cannot be discriminated against if you are a carer of someone who has a protected characteristic.
Disabled people no longer have to show their impairment affects a particular capacity such as mobility, speech or eyesight. They will only need to demonstrate an effect on day to day activities.
The Act allows for claims of direct pay discrimination on equal pay even if no real person comparator can be found. The person will still need to be able to demonstrate that someone of the opposite sex would have been paid more for the same work.
Extension of employment tribunal powers
Tribunals will be able to make recommendations to prevent discrimination of employees who are not the claimant. This applies even if the claimant is no longer employed by the employer they are making the claim against.
The Act makes it unlawful to prevent or restrict employees from having a discussion about differences in pay. Employers can restrict employees from discussing pay with competitor organisations.
Pre-employment health questionnaires
The Act limits the circumstances when you can ask health-related quesions.before you have offered a person a job. Up to this point you can only ask health questions to help you:
decide whether you need to make any reasonable adjustments for the person in the selection process
decide whether an applicant can carry out a function tha is essential to the job
monitor diversity among people applying for jobs
take positive action to help disabled people
make sure that a candidate has a disability where the job genuinely requires the postholder to be disabled
You should not ask people about their sickness absence on a job application form.
Transsexuals no longer need to seek medical advice to be protected. They would still need to demonstrate that they are living or intend to live permanently in the gender opposite to the one assigned at birth.