Dealing with Discrimination

Irene Henery, Senior Solicitor David Reilly, Caseworker

Purpose – to understand better how to use the Equality Act 2010 to deal with

discrimination

• Promote and enforce compliance with discrimination law

• Protect and promote human rights

Examples of our work – Provide guidance– Carry out inquiries and take enforcement action– Support strategic legal cases

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What we do

Provides protection from unlawful discrimination and harassment• Because of protected characteristics• In different circumstances / relationships • But not all discrimination is unlawful

Advances equality• Allows different treatment when evidence of need

or disadvantage – through exceptions and positive action

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Equality Act 2010

Advising on discrimination

Is the person protected?

Is there a discriminatory act?

Can any disadvantage be linked to their protected characteristic?

Is there an exemption or justification for discrimination?

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The protected characteristics

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Age

Religion or belief

Marriage & civil partnership

Gender reassignmentDisability

Pregnancy & maternity Race

Sexual orientationSex

Prohibited conduct

• Direct discrimination (s 13)• Indirect discrimination (s 19)• Discrimination arising from disability (s 15)• Duty to make reasonable adjustments (ss 20 & 21)• Harassment (s 26)• Victimisation (s 27)• Pregnancy and maternity unfavourable treatment

(s18)• Gender reassignment absence from work (s16)• Equal pay (ss 64-71) 6

Case Study 1

Mrs Price works for a telesales company. She has degenerative disc disease causing pain and limiting mobility. This caused her to be absent from work for some days. Mrs Price’s husband has recently been diagnosed with Leukaemia.

The news that her husband’s condition had deteriorated and that he required chemotherapy led Mrs Price to be signed off for a week by her GP with high blood pressure.

When she returned to work, her boss dismissed her, telling her that her employment was not working out and saying "if I had known about your husband's illness I wouldn't, no might not, have taken you on."

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How would you advise Mrs Price if she approached you?

You might want to think about:• Does the equality act cover these circumstances?• If so, in what way? • What is the protected characteristic and what is the

discriminatory act. • What are the time limits?

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Direct Discrimination

Direct discrimination occurs when a person treats another less favourably than they treat or would treat others because of a protected characteristic (s13)

Direct discrimination cannot be justified except in age discrimination

We are protected from direct discrimination and harassment because of our association with others or because of the perception of the person discriminating.

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Harassment

Harassment occurs when a person engages in unwanted conduct which is related to a relevant protected characteristic and which has the purpose or the effect of:

• violating another’s dignity; or

• creating an intimidating, hostile, degrading, humiliating or offensive environment for another.

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Harassment

In deciding whether conduct amounts to harassment, each of the following must be taken into account:

• the perception of person who may have been harassed – a subjective test

• whether it is reasonable for the conduct to have that effect - an objective test

• the other circumstances of the case.

Harassment includes association and perception 11

Case study 2Mrs Wierzbinska was employed as a cucumber packer. Her starting

time was 7am and her finishing time depended on the orders, which had to be completed. In October Mrs Wierzbinska took maternity leave.

While on maternity leave, an ethical audit of the employer raised issues about worker’s hours of work and access to holidays. The employer took steps to address these issues.

Mrs Wierzbinska was due to return to work in the following October. Before her return she made a request for flexible working, asking to finish work at 1pm on four days a week.

This was refused because, to comply with the ethical audit, the employer introduced a strict rota where a full day off could be granted, but all working employees would still have to be available to work until all the orders were completed. 12

How would you advise Mrs Wierzbinska if she approached you?

You might want to think about:• Does the equality act cover these circumstances?• If so, in what way? What is the protected

characteristic and what is the discriminatory act. • What are the time limits?

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Indirect discrimination

Indirect discrimination may occur when an apparently neutral policy (provision, criterion or practice) is applied which puts workers sharing a protected characteristic at a particular disadvantage.

• The complainer has to be affected

• This can be justified if it is “a proportionate means of achieving a legitimate aim”

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Case Study 3 Ms Adams, is a deaf woman who spent 12 days as an inpatient at Ninewells

Hospital during which time she had surgery. At her admission, Ms Adams told the hospital staff that her preferred means

of communication was through British Sign Language (BSL) but she did have some very limited lip reading ability.

Ms Adams became upset because she could not understand hospital staff, she twice gave staff contact cards for BSL interpreters and pointed to an interpreter’s poster on the wall. Two days after Ms Adam’s admission, and at the weekend, hospital staff made two attempts to contact a local interpreting agency. No BSL interpreter was provided.

Hospital staff assumed that it was fine to ask Ms Adams to lip read and used pen and paper on occasions. Staff also used Ms Adams’s family to interpret for them, including when talking to her about her operation. Staff told each other that Ms Adams did not actually need an interpreter.

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How would you advise Ms Adams if she approached you?

You might want to think about:• Does the equality act cover these circumstances?• If so, in what way? What is the protected

characteristic and what is the discriminatory act. • What are the time limits? • What legal remedy might be available?

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Disability (s.6)

• A person has a disability for the purposes of the Act if he or she: —- has a physical or mental impairment, and- the impairment has a substantial and long-term adverse effect on his/her ability to carry out normal day-to-day activities.

• See: ‘Guidance on matters to be taken into account in determining questions relating to the definition of disability’http://odi.dwp.gov.uk/docs/wor/new/ea-guide.pdf

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Discrimination arising from disability

Treatment of a disabled person amounts to discrimination where:

• The disabled person is treated unfavourably;• This treatment is because of something arising in

consequence of the disabled person’s disability; and• It cannot be shown that this treatment is a proportionate

means of achieving a legitimate aim

unless it was not known, and could not reasonably be expected to have been known, that the person has the disability.

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Reasonable adjustments

Where a disabled person is placed at a substantial disadvantage to non-disabled people, there is a duty to make changes to:

1. Provisions, criteria or practices2. Physical features3. And a duty to provide auxiliary aids and services (such as a

hearing loop or a special computer service)

Failing to make a reasonable adjustment is unlawful discrimination 19

What is reasonable?

• Would adjustment be effective;• How practicable would it be to take make the

adjustment;• the financial and other costs of making the adjustment;• the disruption which making the adjustment would

cause;• the employer or service provider’s financial and other

resources;• the amount of resources already spent on making

adjustments; and• the availability of financial or other assistance. 20

Public sector equality dutiesGeneral duty on public bodies to have due regard to

three ‘needs’ when exercising their public functions

1 Eliminate discrimination, 2 advance equality of opportunity, 3 foster good relations

8 specific duties for listed public bodies to help them meet the general duty

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Using the Act to take action

Identify discrimination - separate unfairness, discrimination and unlawful discrimination Ask the employer / service provider to explain

by submitting a grievance or letter of complaint

Not satisfied? Employment Tribunals (ACAS and Judicial Mediation) Sheriff CourtAlternatives eg Scottish Public Services Ombudsman

‘The final stage for complaints about public services in Scotland’. Advice line 0800 377 7330 or http://www.spso.org.uk/complain/form/22

Time limits

Employment: • Grievance submitted when ‘reasonably practical’• Tribunal papers must be lodged within three months (minus a

day) of act (or last act) of discrimination Can be heard out of time if ET believe it is “just and

equitable”.

Services etc:• Sheriff court deadlines are six months less one day from the

date of the incident you are complaining about.• In practice, it can take a month for a case to be fully lodged and

served to meet deadline. 23

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Information on Equality Act http://www.equalityhumanrights.com/legal-and-policy/equality-act/

Scotland Equality Law Bulletin www.equalityhumanrights.com/scotland/legal-news-in-scotland/equality-law-bulletin/

Where to go for help

Advice available to advisors only:EHRC Second Tier advice line • Phone 0141 228 5967• Email: advisorsupport@equalityhumanrights.com

Advice for your service users:Equality Advisory Support Service• Phone: 0808 800 0082 • Website http://www.equalityadvisoryservice.com/

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citations

Case Study 1 - Price v Action-Tec Services Ltd t/a Associated Telecom Solutions [2013] EqLR 429 Jan 2013.

Case study 2 – Wierzbinska v Glinwell Marketing Ltd [2013] EqLR 430 Oct 2012.

Case study 3 – Scottish Public Services Ombudsman report number 201104213

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