The Equality Act 2010

1. The Equality Act 2010 Professor Diana Kloss Employment judge

2. The protected characteristics • Age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation

3. Extent of the legislation • The Act applies ( to a greater or lesser extent) to employment, education, the provision of goods and services, the letting of premises, and transport • At present it does not extend to Northern Ireland • I shall confine myself to employment

4. Who is covered? • The Act applies to employees and contractors, partners, qualifications bodies, etc, but not to unpaid volunteers

5. Who is covered? • Section 81 • Equality Act 2010 (Work on Ships and Hovercraft) Regulations 2011 • Came into force 1 August 2011

6. Part 5 of the Equality Act (employment provisions) applies to a seafarer: • who works on a UK registered ship wholly or partly within GB (including UK waters adjacent to GB) • who is a British national or a national of a EEA State or designated state (which has an agreement with the EU), and for whom the legal relationship of their employment is located in or closely linked with GB, if working on board EEA-registered ships or hovercraft in British or adjacent waters • who works on a UK registered ship operating wholly outside British waters

7. Disability discrimination • The definition of disability remains the same, ie a physical or mental impairment that has a substantial and long term adverse effect on ability to carry out normal day to day activities, except that the list of capacities (mobility, manual dexterity, memory etc) has been removed • The revised Guidance on the definition (2011) has an Appendix which gives examples eg getting dressed, preparing a meal, walking, using transport, reading and understanding material, persistent difficulty in taking part in normal social interaction or forming social relationships • The person must be assessed without medication/prosthesis or other aid. If without them he would be substantially impaired he is disabled.

8. Direct discrimination • A person (A) discriminates against another (B) if, BECAUSE OF a protected characteristic, A treats B less favourably than B treats or would treat others • If the protected characteristic is age, A does not discriminate against B if A can show A’s treatment of B to be a proportionate means of achieving a legitimate aim • All other kinds of direct discrimination cannot be justified, eg turning down a job applicant because she is pregnant, or may become pregnant, blanket bans against the employment of diabetics or those with a history of mental illness

9. Direct discrimination includes associative discrimination and perceptive discrimination, eg • a white man refused promotion because his wife is black • a non-disabled woman denied a job because she has a disabled child • a heterosexual woman who wears mannish clothes denied a job because she is perceived to be gay

10. Disability-related discrimination • A person (A) discriminates against a disabled person (B) if A treats B UNFAVOURABLY because of something arising in consequence of B’s disability and A cannot show that the treatment is a proportionate means of achieving a legitimate aim • NB no need for a comparator • eg dismissing a disabled employee because of sickness absence, or poor performance, rejecting a disabled job applicant because of fears that he will create a health and safety risk for other employees • This does not apply if A shows that A did not know and could not reasonably have been expected to know that B had the disability

11. Note that disability-related discrimination can be justified, but that there is a new test of justification: proportionate means of achieving a legitimate aim • Legitimate aims are, for example, protecting the workforce against health and safety risks, and promoting business efficiency. Employers are not required to continue to employ disabled people with unsatisfactory attendance and/or performance, which reasonable adjustments have failed to cure

12. If there is a specific statutory provision that takes precedence over the Equality Act • eg Lane v Farmiloe • fitness to drive on a public highway (DVLA) • Merchant Shipping (Maritime Labour Convention)(Medical Certification) Regulations 2010, which apply to seagoing UK ships and non-UK ships in UK waters • but heath and safety should not be used as a ‘false excuse’ • It is important to perform a risk assessment and balance risks against the disabled person’s desire and need to work

13. The duty of reasonable adjustment • This is expanded. It covers: • Adjustments to a provision criterion or practice that puts the disabled person at a disadvantage eg attendance management procedure • Adjustments to physical features • A duty to provide auxiliary aids (including auxiliary services) • The disabled person must not be charged for adjustments

14. What is reasonable? • It depends on cost, whether it is practicable and whether it will be effective • The manager decides what is reasonable. OH merely makes suggestions and recommendations.

15. Pre-employment health screening • Section 60 provides that health questions (including questions about sickness absence) must not be asked before an offer of work is made or the job applicant is included in a pool from whom the employer intends to offer work • The offer can be conditional on medical clearance and health questions can then be asked. There is no limit in the Equality Act as to the extent of the questions, but Madan and Williams argue that excessive questions are a breach of the Data Protection Act

16. Exceptions • The principal exceptions are: • Questions necessary to establish whether adjustments need to be made to the selection process, eg interview, written test • Questions necessary to establish whether the job applicant will be able to carry out a FUNCTION INTRINSIC to the work (after reasonable adjustments have been made), eg work at a height for a scaffolder, fitness tests for police, firefighters