The Legislation relating to equal opportunities & non-discrimination
Equal opportunities and discrimination can relate to many different aspects of the employment relationship. The PBS standard policy states that there will not be discrimination against anyone because of his or her gender, marital status, race, age, religion, disability, sexual orientation, involvement in trade union activities or because he or she is a part-timer or works on a fixed-term contract. A more detailed and comprehensive policy on Equal Opportunities is available should it be required. (Please contact the Helpline)
An employer’s liability mainly arises from the following legislation:
1. The Equal Pay Act 1970
2. The Sex Discrimination Act 1975
3. The Race Relations Act 1976
4. The Disability Discrimination Act 1995
5. The Part-Time Workers (Prevention of Less Favourable Treatment) Regs. 2000
6. The Fixed Term Employees (Prevention of Less Favourable Treatment) Regs. 2002
7. The Employment Equality (Sexual Orientation) Regs 2003
8. The Employment Equality (Religion or Belief) Regs 2003
9. The Employment Equality (sex Discrimination) Regs. 2005
10. The Employment Equality (Age) Regs. 2006
The Equal Pay Act (as amended by SDA 1975) relates to equal pay as between men and women. Complaints about pay, or other contract terms (e.g. pensions), as they differ between men and women are not dealt with by way of discrimination but under different provisions. These matters are the concern of the Equal Opportunities Commission (Tel: 0845 601 5901) which promotes equal treatment for men as well as women rather than imply that the problems are all one way.
The Equal Opportunities Commissions Code of Practice on Equal Pay was revised on the 1st December 2003. In essence employers are required to:
1. review current pay structures and policy
2. introduce equal pay policies
3. ensure pay structures and grades are transparent
4. change practices which are likely to result in discrimination in pay
5. establish a continuous monitoring procedure and on-going assessment to prevent development of bad practices
6. deal with any discrepancies in pay levels between male and female staff
The Code is admissible in evidence in any tribunal proceedings.
Under the Sex Discrimination Act there are three types of discrimination which are unlawful:-
1. Direct discrimination where a person is treated less favourably because she is a woman (or, vice versa, because that person is a man) or less favourably because that person is married as opposed to being unmarried
2. Indirect discrimination where either sex is put at a disadvantage because a requirement or condition is more onerous on one sex than on the other.
3. Discrimination by victimising a person who takes action or intends to take action under the Sex Discrimination Act or supports another person who does so.
An employer can be vicariously liable for the acts of his or her employees should they discriminate against fellow workers on the grounds of sex in the course of employment. It is therefore important that employers take reasonable steps to prevent discrimination at work including appropriate policies, practices and rules drawn to the attention of all employees.
Included under sex discrimination is sexual harassment. A detailed sexual harassment policy and complaints procedure is available if required (contact the Helpline).
The Employment Equality (Sex Discrimination) Regulations 2005 bring the Sex Discrimination Act 1975 into line with EU law on sexual harassment. The Regulations define sexual harassment as unwanted conduct including verbal, non-verbal or physical conduct of a sexual nature that “violates” a worker’s dignity or that creates an intimidating, hostile, degrading, humiliating or offensive environment for a worker, or treatment of a person who has rejected or submitted to such conduct which is less favourable than if he or she had not rejected or submitted to such conduct. Employers have a duty to ensure their workplace is free of discrimination and harassment.
Care must be taken when making dress and appearance rules for employees. Dismissal of a man for having long hair or of a woman for wearing trousers can be sexual discrimination in certain circumstances. Men and women must not be treated less favourably because of their sex but less favourably does not mean equally. It is not less favourable to have different dress codes for men and women provided they are comparable and enforced to equal degree.
See below for discrimination on grounds of sexual orientation.
On 12th October 2002, a European Burden of Proof Directive was implemented and the onus is now on employers to provide satisfactory explanations to re-but claims of sexual discrimination. In the past, employees alleging sex discrimination had to prove their case, but now once facts are put to a Tribunal that infer discrimination, it is for the employer to prove otherwise.
Under the Race Relations Act the same three types of discrimination apply as are mentioned above:-
1. Direct discrimination when a person is unfavourably treated on racial grounds such as:
(a) colour
(b) ethnic or national origins
(c) race
(d) nationality
2. Indirect discrimination where for example procedures for filling job vacancies are based on criteria which put ethnic minorities at a disadvantage
3. Discrimination by victimising a person who takes action or intends to take action under the Race Relations Act or supports another person who does so.
An employer can be vicariously liable for the acts of his or her employees should they discriminate against a fellow worker on the grounds of race in the course of employment. The employer must take reasonable steps to prevent such behaviour including the adoption and enforcement of appropriate policies, practices and rules.
See below for discrimination on grounds of religion or belief.
The burden of proof mentioned above in regard to sex discrimination now also applies in cases of Race discrimination.
The Disability Discrimination Act (as amended) makes it unlawful for employers to discriminate against a disabled person. Employers must make any “reasonable adjustments” necessary to cater for disabled employees and applicants in the areas of recruitment, working conditions, training, promotion and dismissal.
A disabled person is defined as someone who has a physical or mental impairment (including dyslexia, speech or hearing impediment), which has a substantial and long term adverse effect on that persons ability to carry out normal day to day activities. The Law is evolving and great care must be taken by employers where, for example a worker has a long-standing back problem or suffers prolonged mental stress or a depressive disorder.
On the 18 July 2008 the European Court of Justice brought in a ruling that to discriminate against a person because of their association with a disabled person was unlawful under a European Union Directive. The decision establishes that disability discrimination at work not only applies to disabled people themselves but also to their carers.
Contact the Helpline if you require documentation on recruitment of disabled persons or a more detailed Equal Opportunities Policy relating to disability.
A Code of Practice has been published to give effect to the requirements of the Disability Discrimination Act and this should be observed by employers.
A leaflet providing basic guidance on avoiding sex, race or disability discrimination has been prepared by the Equal Opportunities Commission, the Commission for Racial Equality and the National Disability Council. Copies can be obtained by ‘phoning the CRE on 0207 932 5286 or visiting its web site at www.cre.gov.uk.
For discrimination related to membership of a trade union click here.
Part-Time and fixed-term workers. (click as appropriate)
Employment Equality (Sexual Orientation) Regulation 2003.
Employment Equality (Religion or Belief) Regulations 2003.
It is unlawful to discriminate against workers on the grounds of their sexual orientation or their religion or belief. Employers must also ensure that they do not allow their other workers to discriminate on these grounds.
Sexual Orientation is defined as:
a. orientation towards persons of the same sex (lesbians and gay men)
b. orientation towards persons of the opposite sex (heterosexual)
c. orientation towards persons of the same sex and the opposite sex (bisexual)
Religion or belief is defined as being any religion, religious belief or similar philosophical belief. It does not include a philosophical or political belief unless it is similar to religious belief. Gradually the definition will be more clearly defined by decisions of the Employment Tribunals and other Courts.
In an effort to alleviate any potential discrimination, whether direct or indirect or in the form of harassment or victimization, it is important for Employers to introduce equality policies, provide appropriate training to staff and be open and transparent in matters of recruitment, promotion and training.
ACAS has produced guidance documents on the regulations and further information can be obtained from its website.
The Employment Equality (Age) Regulations 2006 are intended to protect job applicants and employees of all ages from unjustified age discrimination.
All PBS information sheets are designed to provide the detail you need to implement best business and employment practices. They are not a detailed commentary on the current law and where advice is needed in a specific case you should contact PBS for expert consultation.
Equal ops