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The Law

The last 30 odd years have seen the introduction of a number of different pieces of equality and equality related legislation, see below. You are not expected to become an expert on any, or all of them. This section summarises the key legislation and principal concepts which you are most likely to encounter and find useful on a day to day basis.

The duties and obligations of UCL as an employer, the rights and entitlements of employees conferred by the legislation and good practice, which often goes beyond legislative requirements, have been enshrined in UCL HR policies and procedures, which can be downloaded from the HR website at www.ucl.ac.uk/hr

  • Equal Pay Act 1970, 1975, Amendment 1984
  • Rehabilitation of Offenders Act 1974
  • Sex Discrimination Act 1975 Amendment 1982
  • Race Relations Act 1976 Amendment 2000. Amendment Regulations 2003
  • Employment Act 1989
  • Disability Living Allowance and Disability Working Allowance 1991
  • Management of Health and Safety at Work Regulations 1992
  • Asylum and Immigration Appeals Act 1993
  • Race Relations Remedies Act 1994
  • Disability Discrimination Act 1995 and 2005
  • Employment Rights Act 1996
  • Asylum and Immigration Act 1996
  • Protection from Harassment Act 1997
  • Human Rights Act 1998
  • National Minimum Wage 1998
  • Employment Relations Act 1999
  • Immigration and Asylum Act 1999
  • Sex Discrimination (Gender Reassignment) Regulations 1999
  • Disability Rights Commission Act 2000
  • Special Educational Needs and Disability Act 2001
  • The Gender Recognition Act 2004
  • Work and Families Act 2006

    Statutory instruments:
  • Working Time Regulations 1998
  • Maternity and Parental Leave Regulations 1999
  • Part Time Workers 2000
  • Regulations on Fixed term Workers 2001
  • Employment Equality (Sexual Orientation) Regulations 2003 1.
  • Employment Equality (Religion or Belief) Regulations 2003.
  • Employment Equality Age Regulations 2006

In 2000 the European Union agreed two new directives ( The Employment and Race Directives ), which each member state is required to incorporate within domestic law. All the proposed changes to U.K. legislation will produce a common definition of direct and indirect discrimination and harassment, will shift the burden of proof, include in the definition of dismissal, 'constructive dismissal', will cover post employment victimisation and extend protection to workers employed by UK businesses temporarily posted abroad. The information below incorporates these changes.

The Sex Discrimination Act 1975 (SDA) protects people from discrimination on the grounds of sex, and marital status. Exceptions to the Act include genuine occupational requirements. Employers will be able to recruit staff on the basis of a genuine occupational requirement if it can be shown that it is a genuine and determining requirement of the job to be of a particular gender.

The Race Relations Act 1976 (RRA) protects people from discrimination on the grounds of race, colour, nationality, and ethnic or national origins. Exceptions to the act include genuine occupational requirements. Employers will be able to recruit staff on the basis of a genuine occupational requirement if it can be shown that it is a genuine and determining requirement of the job to be of a particular, race or of particular ethnic or national origin. In cases involving colour or nationality the existing provisions in section 5 of the 1976 Race Relations Act will continue to apply.

Both Acts cover discrimination in employment, education, goods, facilities, services and premises.

Direct discrimination ; A person 'A' discriminates against another person 'B' if on grounds of gender, race, colour, nationality, ethnic or national origins, disability, religion or belief, sexual orientation, 'A' treats 'B' less favourably than s/he treats or would treat other persons.

Indirect discrimination: A person 'A' discriminates against another person 'B', if 'A' applies to 'B' a provision, criterion or practice which s/he applies or would apply equally to persons not of the same (group) as' B', but

  • which puts or would put persons of the same (group) as 'B' at a particular disadvantage when compared with other persons,
  • which puts 'B' at that disadvantage and
  • which 'A' cannot show to be a proportionate means of achieving a legitimate aim

Previously, indirect discrimination has occurred where a person applied a 'condition or requirement' which was apparently neutral but which did, or could, in fact put people of a particular group at a disadvantage, and which could not be justified on other grounds.

The new definition replaces "condition or requirement" with the phrase "provision, criterion or practice" so far as discrimination on the relevant grounds is concerned. The new definition will cover formal requirements, conditions and provisions, as well as informal practices, thus widening the circumstances where indirect discrimination could occur.

The new definition of indirect discrimination makes it easier to use non-statistical evidence to establish a case.

Victimisation if a person is treated less favourably if they have brought, or given evidence in a case of discrimination. This is unlawful.

Positive Action is allowed under the SDA and RRA: i.e. lawful measures designed to redress imbalances and counteract the effects of past discrimination, to ensure that people from previously excluded ethnic minority or gender groups can compete on equal terms with other applicants.

Sections 37 and 38 of the RRA and sections 47 and 48 of the SDA allow employers to encourage applications from underrepresented groups, (though appointments must be entirely on merit with no discrimination at the point of selection and all applicants must be treated equally. Favouring a woman over a man, or black person over a white person, even if done to redress imbalances is not permitted and is illegal ).

Employers can also provide training only for a particular group, if in the preceding 12 months there were no persons from that group doing the work, or their number is small in comparison with those employed in the rest of the organisation, or in comparison with the population from which the employer normally recruits. So training allows for single sex training or training restricted to members of a particular racial group.

Burden of proof. Once the person making the complaint has made out a case that discrimination or harassment has taken place, the onus shifts to the employer to prove on the balance of probabilities, that it did not commit such an act.

Vicarious liability. Anything done by an individual employee in the course of his/her employment is treated under the Acts as also being done by the employer, unless the employer could show it took such steps to prevent the employee from doing that act.

Definition of harassment: A person subjects another to harassment where s/he engages in unwanted conduct which has the purpose or effect of:

(a) violating that other person's dignity, or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for her/him,

and in the perception of that other person, it should reasonably be considered as having that effect.

Previously harassment had not been expressly defined in the 1975 SDA or 1976 RRA. However UK case law already considers harassment to be a form of unlawful direct discrimination in so far as it applies in situations where unwanted conduct violates someone's dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for someone.

(For UCL staff harassment and bullying policy and list of harassment advisors see the Harassment website. For UCL student harassment and bullying policy contact the EOC.)

Race Relations Amendment Act (2000) (RRAA) placed a statutory obligation on all public bodies to develop a race equality policy and action plan, not only to eliminate race inequality but proactively to promote equality between different racial groups, to assess the impact of all its policies on staff and students from different racial groups, to ensure all staff are trained in their duties regarding promoting race equality, to monitor the recruitment and progress of minority ethnic staff and students and publish results and progress.

Disability Discrimination Act 1995 and 2005.
Set out:

  • individual right to no discrimination on the basis of disability
  • employers must proactively promote disability equality
  • Public sector employers must have a disability scheme and action plan
  • duty to reasonably accommodate the needs of a disabled person unless the employer can show this less favourable treatment is justified. ( Justified means material and substantial)
  • obligation on employers to make 'reasonable adjustments ' to the physical features of premises and arrangements for employing disabled people Reasonable adjustments to the physical features of premises
  • more favourable treatment of someone because they are disabled is permitted, for example agreeing to interview all disabled candidates who meet all the essential criteria of a person specification. (Note UCL has NOT agreed to do this.)

An employer must do all they reasonably can to find out if a person has a disability. The Act defines a disabled person as "someone with a physical or mental impairment which has a substantial and long term adverse effect on his/her ability to carry out normal day to day activities".

Long term means likely to last for at least 12 months.

Normal day to day activities include mobility, manual dexterity, physical co ordination, continence, ability to lift, carry, move everyday objects, speech, hearing, eyesight, memory or ability to concentrate, learn or understand, perception of risk or physical danger.

The definition of disabled does not include people who wear spectacles or contact lenses.

Progressive conditions are now (under the DDA 2005) covered from the point of diagnosis. Progressive conditions include HIV and Multiple Sclerosis.

Where a treatment alleviates a condition for the duration of the treatment, the impairment is taken to have the effect it would have had without such treatment.

Employers should think ahead for interviews and give applicants the opportunity to indicate any relevant effects of disability on the interview and suggest adjustments. If a disabled person arrives at interview and is placed at a substantial disadvantage, even if no prior notice were given, the employer may still be under a duty to make a reasonable adjustment from the moment s/he learns of the disability. 'Checklist for interviewing disabled candidates'.)

Adjustments: physical adjustments to working environment, equipment, provison of specialist aids and adaptations, additional support, adjustments to working arrangements e.g. time to recover or adapt, adaptation of duties, hours, availability of financial assistance, help with personal care, redeployment priority. (See also Access to Work on HR website, - assessments and financial help towards approved costs to overcome the practical problems some disabled people may experience in work or getting to work.)

The Special Educational Needs and Disability Act 2001 , (SENDA) in force from September 1, 2002, extends the DDA to education. Seeks to enable more people with special education needs to be integrated within mainstream education and protects disabled students in all aspects of their studies and other university facilities and services. Covers for example:

  • all aspects of teaching and learning, including lectures, lab work, practicals, field trips, work placements, etc
  • e-learning, distance learning
  • examinations and assessments
  • learning resources, including libraries, computer facilities, etc
  • aspects of the physical environment such as buildings, landscaping and equipment
  • welfare, counselling and other support services
  • catering, residential and leisure facilities
  • careers services. 2

Equal Pay Act. Applies to full and part time staff. Gave men and women the right to equal pay for:

  • the same and broadly similar work,
  • work of equal value (rated as equivalent), in terms of the demands of the job (i.e. effort, skills, decision making,)
  • work evaluated as equal under job evaluation schemes.

Pay includes terms and conditions, not just salary.

Successful equal pay applicants can claim back pay up to 6 years.

Same employment means "employed in the same establishment, or in another establishment of the same, or an associated employer, provided common terms and conditions of employment are observed, either generally, or for employees of the relevant classes".

Human Rights Act 1998. Only applies directly to public authorities (includes HE institutions.) Incorporates the European Convention on Human Rights into UK law, i.e. can enforce rights in domestic courts. The Human Rights Act 1998 does not incorporate all the rights and fundamental freedoms of the European Convention on Human Rights and its protocols. Convention rights are by no means absolute and case law balances individual rights with the interests of the wider community, whether interference with a convention right is justified by the rule of law, legitimate aims and proportionality.

Right to education includes access to elementary education. No universal right to FE or HE.

  • Article 2 right to life
  • Article 3 prohibition of torture, inhuman or degrading treatment (could cover particularly serious cases of harassment or bullying on grounds not protected by current discrimination laws.)
  • Article 4 prohibition of slavery and forced labour
  • Article 5 right to liberty and security
  • Article 6 right to a fair trial and fair and public hearing in determining civil rights as well as criminal charges.
  • (Article 7 no punishment without law
  • Article 8 right to respect for private and family life, home and correspondence, (covers broadly the protection of personal information, personal space and private communications. Is a qualified right.)
  • Article 9 freedom of thought, conscience and religion
  • Article 10 freedom of expression (but no right for content and manner to be abusive)
  • Article 11 freedom of assembly and association

(Note articles 8-11 are specifically subject to such limitations as are set out in national law and as are necessary in a democratic society to protect specific interests or the rights of others.)

  • Article 12 right to marry
  • Article 14 prohibition of discrimination ( Note this does not outlaw discrimination per se, but requires there is no discrimination in the enjoyment of other convention rights.)

The European Race and Employment Directives 2000. 3

ALL EU member states must agree to tackle discrimination due to:
Age
Disability
Race
Religion
Sex
Sexual orientation.

The Race Directive - The most extensive in scope. Requirement to prohibit discrimination and promote race equality. Covers race, ethnic or national origin. Does not apply to nationality or colour (which are covered in the UK by the 1976 Race Relations Act, which therefore has a broader definition than the Directive.) Covers employment, training, provision of goods and services including housing, education and social protection. Implemented 19 July 2003 by amending the Race Relations Act.

The Employment Directive prohibits discrimination in the context of sexual orientation, religion or belief, and age. No requirement to promote equality in these areas. Covers employment only, not social protection, or access to good and services. In force from 1 December 2003 Sexual Orientation and 2 December 2003 Religion or Belief.

Regarding sexual orientation, the directive DOESN'T cover benefits linked to marital status and also allows discrimination in pension/insurance provision.

Existing UK legislation in respect of gender, race and disability satisfies EU requirements. New primary legislation required in respect of religion, sexual orientation and age.

Level of protection must not be reduced i.e. if country's existing legislation affords protection greater than EU legislation it must stand, no regression of rights permissible.

The legislation will also apply to contract workers.

Religion or belief, any religion, religious or similar philosophical belief.
Does not include political belief.

Sexual orientation , an orientation towards persons of the same sex, opposite sex or both sexes. Does not extend to sexual practices e.g. paedophilia, sado-masochism. Don't have to disclose sexual orientation when bringing a claim and can bring a claim if you are discriminated against on the basis that you are perceived to be gay, lesbian, bisexual, whether or not you are.

Definitions of direct and indirect discrimination, victimisation, harassment (as outlined above) also applicable to religion/belief and sexual orientation.

Positive Action: The legislation will allow positive action in certain circumstances to prevent or compensate for disadvantages linked to religion or belief or sexual orientation - but don't have to have evidence showing under representation, because of the difficulty in collecting statistics regarding an individual's religion, belief and sexual orientation.

Exceptions : Genuine Occupational Requirement (GOR). The standard one, as in other areas: an employer is allowed when recruiting for a post to treat job applicants differently on the grounds of sexual orientation, or religion, or belief, if possessing a particular sexual orientation, or religion, or belief is a genuine occupational requirement (GOR) for that post. This must be a genuine and determining factor, BUT it cannot be used to discriminate. An employer may also rely on this exception when promoting, transferring or training persons for a post.

Universities can also restrict access to a course if it relates to employment to which a GOR would apply. This is any form of education which prepares for a qualification for a particular trade profession or employment, or which provides the necessary skills for such a trade, profession or employment.

There is an additional GOR where an employer has an ethos based on religion or belief i.e. allows an employer to apply a requirement related to sexual orientation so as to comply with the doctrines of the religion, or to avoid conflicting with the followers' religious convictions. Applies to employment in a church or temple, but NOT to any employment which is, or is claimed to be of a religious character. Being of a particular religion or belief does not have to be a 'determining' occupational requirement but only a genuine one.

Age: The regulations outlaw age discrimination in employment and vocational training, Vocational training covers not just training in the workplace, but all training that contributes to employability, so all courses offered by universities.

The Regulations will apply to both young and old people.

•  Age discrimination will be unlawful unless is a proportionate means of achieving a legitimate aim and can be objectively justified.

•  The default retirement age will be 65. C ompulsory retirement below 65 will be unlawful unless objectively justified. ( UCL's retirement age is currently 65)

•  Planned retirement will be a fair reason for dismissal, BUT individuals have the right to request to work after 65 and it is the duty of the employer to consider such requests.

•  New processes are required to manage retirement. No age criteria should be used in recruitment, promotion, training, pay or benefits unless justified.

•  Awards for damages will be unlimited in successful tribunal cases. (N.B. A job applicant can also make a claim to an employment tribunal. It is not necessary for them to have been employed by UCL to make a claim of discrimination.)

The Gender Recognition Act 2004 received Royal Assent on 1st July 2004, meaning it is now law.

Work and Families Act 2006

Covers:

1. See following section on the European Race and Employment Directives.

2. Judy Erwin from Disability Awareness reference materials. UCL 2003.

3. N.B. The framework comprises three directives but The Equal Treatment Amendment Directive which prohibits sex discrimination in employment and vocational training, necessitates only a limited number of changes to the Equal Pay Act which will not have a major impact and is therefore not outlined here.

 

 

Last updated: 07th June 2010