What is equality and how does it apply to employees?

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The Equality Act 2010 is a major piece of legislation which should allow the harmonisation of all the legislation which deals with the prevention of discrimination and the promotion of equality.

The main objects of the Act are the nine sections of protected characteristics and the prohibited conduct in relation to those characteristics being:
  1. Age
  2. Disability
  3. Gender reassignment
  4. Marriage and Civil Partnership
  5. Pregnancy and Maternity
  6. Race
  7. Religion or Belief
  8. Sex
  9. Sexual orientation
The prohibited conduct in relation to the above protected characteristics include direct and indirect discrimination.

Direct discrimination is when a person discriminates against another if, because of a protected characteristic, he treats the other less favourably than he treats or would treat others. Less favourable treatment must be distinguished from unfavourable treatment and requires a comparator whereas unfavourable treatment does not. So, for example, for work-related pregnancy and maternity discrimination, the test is whether a woman has been treated unfavourably, not less favourably, reflecting the fact that there is no need for a woman in such circumstances to compare the treatment with that offered to a comparator.

The test for determining whether or not an act was an act of direct discrimination is objective, not subjective. In other words, regard must be had to what was done, not the reasons or motive behind what was done. Ask yourself “was the person so treated because of the protected characteristic?”

A person indirectly discriminates against another if:
  1. he applies a provision, criteria or practice which is discriminatory in relation to the other’s protected characteristic;
  2. the provision, criteria or practice is applied to persons who do not share that characteristic and puts, or would put, persons who do share that characteristic at a particular disadvantage compared with persons who do not share it;
  3. it puts or would put an individual with that characteristic at a disadvantage; and
  4. it cannot be shown that it is a means of achieving a legitimate aim.
The provision, criteria or practice can apply generally to persons with a protected characteristic, or to an individual who has that characteristic. Further, perceived discrimination can be covered. For example, if there is a criteria that a job applicant should be able to work a night shift, a woman who is otherwise qualified but is unable to comply with the criteria because she has young children to care for would be able to claim that she has been indirectly discriminated against on the grounds of sex. The employer would have to show that the criteria is a proportionate means of achieving a legitimate aim. However, the woman must also be able to show that she was genuinely deterred from applying for the job because of the criteria.

An important distinction between direct and indirect discrimination is that so far as the former is concerned, there is no defence of justification, whereas indirect discrimination can be justified if it is a proportionate means of achieving a legitimate end.

Indirect discrimination applies to all the protected characteristics except pregnancy and maternity.

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