Do you know your Equality Act responsibilities?

  • 09 Nov 2021

By Hannah Thomas, employment solicitor at FSB Legal Hub

The Equality Act 2010 applies to all employers and service providers in England, Scotland and Wales; separate legislation applies in Northern Ireland. Small employers may have more informal practices and be more constrained by resources, which could impact how they implement the legislation – but no employer is exempt due to size. 

The act sets out nine ‘protected characteristics’ that are protected from unlawful discrimination: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. Several types of discrimination are prohibited: 

Direct discrimination 

This is treating someone less favourably because of a protected characteristic, such as deciding not to employ someone because they 
are pregnant. Direct discrimination can never be justified in law. However, in the case of age, treating one person less favourably than someone else may be justified. 

 

Discrimination arising from disability 

This is treating a disabled person unfavourably because of something connected with their disability when this cannot be objectively justified, such as disciplining an employee for disability-related sickness absence.

Direct discrimination based on association

This is where you discriminate against an individual based on their association with someone who has a protected characteristic. If you refuse to promote an employee who has a disabled child because you think they will take a lot of time off, you are discriminating against them based on association.

Direct discrimination by perception 

This is treating somebody less favourably than someone else because you incorrectly believe they have a protected characteristic.

Failing to make reasonable adjustments 

Failing to make reasonable adjustments for a disabled person is discrimination. A receptionist with anxiety and depression who found working in a public-facing role stressful was awarded over £50,000 when her employer failed to consider alternative back-office employment for her.

 

Indirect discrimination

This applies if a practice has a worse impact on a person with a protected characteristic than one who does not, when this cannot be objectively justified. If an employer can show the practice is a proportionate way to achieve a legitimate aim, the claim will not succeed.

Harassment 

Harassment is unwanted behaviour related to a protected characteristic that violates dignity or creates a hostile, degrading, humiliating or offensive environment. 

Victimisation 

Victimisation is treating someone unfavourably because they have taken action relating to the Equality Act, for example making 
a complaint or supporting somebody who is doing so. 

Employers are legally responsible for acts of discrimination, harassment and victimisation carried out by workers while they are doing their job. It does not matter whether the employer knew about or approved of what the worker did. However, the employer will not be held legally responsible if they can show that they took all reasonable steps to prevent their worker acting unlawfully. 

 

Below are examples of reasonable steps employers can take that may provide a legal defence against discrimination carried out by workers: 

  •  Providing a simple checklist on discrimination to talk staff through, together with regular refreshers, or arranging equality training 
  •  Writing expected standards of behaviour in a dignity at work policy 
  •  Including a requirement about behaving in line with equality law in employment contracts or written policies, and making it clear that breaches will be treated as disciplinary matters
  •  Making it clear how staff can complain if discrimination happens.

FSB members have access to a template on dignity at work and equal opportunities policy and guidance on discrimination on the FSB Legal Hub.

Unless otherwise stated, the advice on this webpage applies to England and Wales only.

Hannah Thomas is an employment solicitor at FSB Legal Hub. 
FSB members should ring the FSB Legal Helpline on 03450 727 727 to discuss legal issues
 
 

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