Equality Act 2010
The Equality Act 2010 consolidates the nine main pieces of discrimination legislation, ranging in time from the Equal Pay Act 1970 to the Equality Act (Sexual Orientation) Regulations 2007. The Act also removes many of the anomalies that have arisen as a result of the piecemeal nature of the legislation.
The main provisions of the Act came into force in October 2010, the revised public sector duties will come into force in April 2011 and the remainder of the Act being implemented throughout 2012 and 2013.
The Act sets out the legal framework for universities in a number of areas. While it places obligations on universities not to discriminate in the provision of education, it includes an express protection for academic freedom in the sense of not applying "to anything in connection with the content of the curriculum."
What equality law means for you as an education provide – further and higher education.
This is the latest guidance from the Equality & Human Rights Commission on what FE colleges and universities must do in order to comply with the new law. Although it may seem lengthy, compared to some earlier guidance, it sets out its advice in a very clear and direct language, with examples.
Draft Code of Practice for Further & Higher Education - October 2010
The Equality Act consultations are a statutory requirement and will enable Equality and Human Rights Commission to create clear and authoritative Codes of Practice and guidance. We can participate in this process here:below.
The Public Duty - Promoting Equality Through Transparency
The Government Equalities Office published a consultation document called, The Public Sector Equality Duty - Promoting Equality Through Transparency. In it, the Government sets out its ideas on the range of the steps public bodies, like our University, should do to promote equality and diversity. The consultation ends in November 2010. Annex 2 is particularly important because it is the draft statutory instrument that sets the proposed enforcement dates for publication of information and for publishing equality objectives.
- The Equality Challenge Unit (ECU) has published a series of briefings on the key actions universities should consider in order to fully comply with equalities legislation from 1 October 2010. In September 2010, the ECU published an 8-page briefing in collaboration with the Higher Education Equal Opportunity Network. A fuller set (22 pages) of guidance notes on the Act was published by the ECU in May 2010.
- The Equality and Human Rights Commission (EHRC) has launched non-statutory guidance covering Employment and Services, Public Functions and Associations. The guidance can be accessed by clicking on the link here:
- Equality Act 2010 – Acas Quick Start Guide for Employers - Acas has worked with the Government Equalities Office and the Equality and Human Rights Commission to produce a quick start guide for employers. This guidance covers the changes coming into effect through the Equality Act 2010 and details how employers can reassess and align their practices to remain compliant. For more information click here ».
- Equality Act 2010: What do I need to know? is a series of summary guides and "Quick Start" guides to the key changes in the law, produced by the Government Equalities Office in partnership with the British Chambers of Commerce, Citizens Advice and the Equality and Diversity Forum, to support implementation of the Act. These simple guides set out clearly what the new laws will mean for business, the public sector, the voluntary sector and the public, helping people understand their new responsibilities and rights.
For more information click here ».
View the Equality Challenge Unit (ECU) document 'Equality Act 2010: implications for higher education institutions' please click here »
On the 8 April 2010 the Equalities Act 2010 received Royal Assent. A PDF version of the Act can be downloaded here ».
- For more information about the background to the Equality Act 2010, click here.
This Quick Guide to the Act
This Quick Guide to the Equality Act 2010 is reproduced with permission from Mills & Reeve
- Protected characteristics and prohibited actions
- The new public sector equality duty
- The socio-economic duty and positive action
- Employers' obligations
- What has changed for landlords?
- Harassment of, and by, students
- Students' unions and clubs
The steps taken by the Act to rationalise Britain's discrimination laws have two particularly significant consequences. The first of these is to provide a set of definitions of protected characteristics and prohibited actions that apply, with minor exceptions, across the board. The second is to provide an overarching equality duty that applies to public authorities, including higher education institutions, across all the main equality strands (see below).
We now have nine separate protected characteristics or equality strands. There are the "big six" we are already familiar with (sex, race, disability, sexual orientation, religion or belief and age) plus three new ones, spun out of their existing home in the Sex Discrimination Act (marriage and civil partnership, gender reassignment and pregnancy and maternity).
The Act also provides standardised definitions of prohibited conduct which embrace direct discrimination, indirect discrimination, harassment and victimisation, all of which largely reflect the present law. For disability there are two additional types of discrimination: discrimination arising from disability and the failure to make reasonable adjustments. The former replaces disability-related discrimination, which has had a very limited scope since a controversial 2008 House of Lords decision, while the latter broadly reflects the existing duty.
A new public sector equality duty will apply across the six main strands, in place of the three different duties that currently apply separately in the gender, race and disability fields. The wording establishing the core duty broadly reflects the existing legislation, but the guidance on how it is to be implemented is likely to follow a different approach. According to the latest draft guidance, instead of equality schemes, institutions will be expected to develop and publish equality objectives, which will not necessarily need to cover all six strands. There is also likely to be greater emphasis on using procurement as a lever to promote equality, and a requirement to publish key employment data comprising gender pay gap figures and employment rates for black and minority ethnic and disabled staff.
The opening clauses of the Act introduce another new public sector duty for strategic authorities to have due regard to the need to reduce inequalities of outcome which result from socio-economic disadvantage. This applies to organisations named in the Act such as government departments, local authorities, primary care trusts and strategic health authorities. However, higher education institutions (HEIs) will not generally be affected directly by the socio-economic duty.
The Act also extends the current limited measures for positive action. Positive action will be allowed if it is a proportionate means of addressing needs for disadvantages shared by members of a protected group. It will also be allowed to encourage wider take up in activities where the participation of members of a protected group is disproportionately low.
Employers' equality obligations have not been significantly changed. Indeed the Act has been criticised for not going far enough on the road to reform. However there are some new provisions, of which three are worth mentioning here:
- A slightly modernised version of the Equal Pay Act has been incorporated. A loophole which previously allowed some claims to fall between the equal pay and sex discrimination legislation has been closed, and the genuine material factor (GMF) defence has been tightened.
- There is a new provision which will make it unlawful to ask certain health-related questions to prospective employees before the short-listing stage. The purpose is to prevent employers using preliminary questions to weed out candidates, say with a history of mental illness, before they are even considered for the job.
- Among the limited positive action provisions in the Act there is a clause which would, in certain circumstances, allow employers to recruit or promote a worker with a protected characteristic in preference to another equally qualified candidate. Many employers are likely to be wary of using this power, at least until is becomes clear exactly how equal the candidates must be for the exception to apply.
Property managers, landlords and tenants should be familiar with the existing law on discrimination as it relates to property. The new Act contains the same provisions as the current law with some minor changes. The most notable is the duty on organisations providing services to the public to take reasonable steps in relation to physical features at the premises where the service is provided. This arises where the feature makes it difficult for a disabled person to access the service. The Act also has an additional right given to tenants of residential or mixed use premises. A disabled tenant can ask the landlord to make physical changes to the common areas within a building where such changes are reasonable.
If one assumes that widening participation remains a policy objective for the next few years, the Equality Act contains a positive action provision which will have an impact.
Upon the coming into force of s.158, HEIs will be able to take action which is intended to alleviate disadvantage experienced by people who share a protected characteristic, reduce under-representation of people sharing a protected characteristic, or meet the particular needs of those sharing a protected characteristic.
Falling within this section will be outreach activities targeted at specific groups of people or services or facilities that would appeal particularly to those groups or which compensate for a disadvantage. The Explanatory Notes to the Act give an example of providing supplementary mathematics lessons exclusively for white male pupils where it has been identified that white boys are underperforming in mathematics.
It is important to note that the section permitting more favourable treatment in recruitment of disadvantaged or under-represented groups applies only to employment. Therefore selecting a student applicant because he/she has a protected characteristic would be unlawful discrimination.
The Act harmonises the definition of harassment on grounds of a person's protected characteristic. Unwanted conduct that has the purpose or effect of violating the person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment will be harassment.
Conduct of a sexual nature is specifically included within the definition, although both marriage/civil partnerships and pregnancy/maternity are not included as protected characteristics for harassment.
An employer is required to take reasonably practicable steps to prevent a third party (ie, someone other than a manager or other employee) from harassing an employee. This section (s.40), which imposes liability on the employer when it knows that the employee has been harassed on at least two other occasions by a third party, means that an HEI could be liable both when a member of staff harasses a student (which includes applicants and graduates) and when a student harasses a member of staff.
Harassment of one student by another would not appear to be caught directly by the harassment provisions. But this does not necessarily mean HEIs will avoid liability. Failing to act in response to an allegation of harassment could itself be discriminatory or lead to a claim based on the institution's own rules. Other sections of the Act impose liability for the acts of agents (s.110) and aiding contraventions of the Act (s.112), both of which may operate in some circumstances to cause the HEI to be liable.
Many bursaries and scholarships have restrictions on who can qualify for them. Where those restrictions are based on a protected characteristic - frequently nationality or gender - there is potential for unlawful discrimination to occur.
The positive action provisions of the Act (s.158) are likely to operate in a way that provides HEIs with protection from successful discrimination claims. However, the HEI will need to be able to show that the bursary/scholarship either:
a) enables or encourages people who share a protected characteristic to overcome a disadvantage suffered which is connected with the protected characteristic;
b) meets the different needs of people sharing a protected characteristic; or
c) enables or encourages the participation of people sharing a protected characteristic where their participation is disproportionately low.
In the event of a challenge, the HEI would need to show that it reasonably thought that the disadvantage, need or under-representation exists and that the bursary/scholarship is a proportionate means of overcoming, meeting or addressing it.
In addition s.193 of the Act allows charities to restrict the provision of benefits to people sharing protected characteristics where certain conditions are met.
The majority of students' unions are not legally a part of the parent institution. Many have their own legal personality (for example as a company limited by guarantee) and others are unincorporated associations. The Act applies to an independent students' union in its own right and to its student clubs and societies. The union will need to ensure that it does not discriminate unlawfully in the provision of its services to its members, guests and the public.
The Act confirms that sports may be divided along gender lines and that there are circumstances where religious groups can confine their membership to those who sign up to tenets of faith.
The Act maintains the previous position that the enhanced equality duties do not apply to students' unions, although it is to be expected that the parent institution, in carrying out its obligation to have due regard to promote equality of opportunity and eliminate unlawful discrimination will require its students' union to act in a manner consistent with that duty.