What responsibilities does the Equality Act 2010 impose on the public sector?

The Equality Act 2010 prohibits public sector service providers from discriminating against, harassing and victimising certain classes of persons. The Act also places an obligation on public sector service providers to make reasonable adjustments for disabled people. From 6 April 2011 the public sector will also be subject to the “Equality Duty”.

Who is protected by the Act?

People who access goods, facilities and services possessing the following “protected characteristics” are protected by the Act:
 

  • Age – persons under the age of 18 are not protected by the provisions relating to service providers and the provisions of the Act relating to those over the age of 18 have yet to come into force;

  • disability;

  • gender reassignment;

  • pregnancy and maternity;

  • race ;

  • religion or belief;

  • sex;

  • sexual orientation.

In addition, except in the case of pregnancy and maternity, the Act also protects

people who are unfairly treated because they are wrongly perceived to have a particular characteristic (or are treated as though they had it) or because they associate with someone who has one of the above characteristics.

What does the Act prohibit?

Discrimination

The Act prohibits public sector service providers from discriminating against a person requiring a service by not providing the person with the service. Where a service is provided the Act prohibits discrimination by the public sector service provider during the course of the provision of the service. This includes discrimination as to the terms on which the service is provided, termination of the service and the subjection of a person to any other detriment.

Both direct and indirect discrimination is prohibited by the Act.

Direct discrimination takes place where a person treats another person who has a protected characteristic less favourably than he or she treats or would treat others not possessing the protected characteristic.

Under the Act it is unlawful for a public sector service provider to discriminate against a woman because she is breastfeeding.

Indirect discrimination occurs where a provision, criterion or practice is applied which is discriminatory in relation to protected characteristic. This includes conduct which is applied or would apply to persons who do not share the characteristic in question and conduct which puts or would put a person possessing a protected characteristic at a particular disadvantage. For example, a policy that only offers appointments by telephone will indirectly discriminate against deaf people as it will be harder for them to make an appointment.

Conduct which can be shown to be a proportionate means of achieving a legitimate aim is, however, permitted. For example, it will be legitimate in some circumstances for public sector service providers to provide single sex services such as toilets or changing rooms, although in such circumstances they should exercise caution so as to avoid discrimination of transsexuals.

Harassment

The Act prohibits public sector service providers from harassing a person requiring a service and where a service is provided the Act prohibits harassment during the course of the provision of the service.

Harassment occurs where a person is subjected to unwanted conduct related to a relevant protected characteristic which has the purpose or effect of violating his dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for him. This can include unwanted conduct of a sexual nature or that is related to gender reassignment or sex.

Victimisation

The Act prohibits public sector service providers from victimising a person requiring a service by not providing the person with the service. It also prohibits public sector service providers, in the course of providing a service from victimising a person as to the terms on which the service is provided, termination of the service and the subjection of a person to any other detriment.

Victimisation occurs where a person is subjected to a detriment by reason of the fact that he has (or it is believed that he has or may) carried out one of the following acts:

  • brought or given evidence or information in proceedings brought under the Act;

  • the doing of something for the purposes of or in connection with the Act.

  • made an allegation that a person has contravened the Act.

However, the giving of false evidence or information, or the making of a false allegation is not protected by the Act if it is given or made in bad faith.

What obligations does the Act place on public sector service providers?

The Act places an obligation on public sector service providers to make “reasonable adjustments” for disabled people.

From 6 April 2011 the public sector will also be subject to the “Equality Duty”.

What is the Equality Duty?

The Equality Duty is a duty on public bodies and others carrying out public functions aimed at ensuring that such bodies tackle discrimination and inequality and contribute to making society fairer.

Who is protected by the Equality Duty?

The Equality Duty protects persons possessing the following “protected characteristics”:

  • age ;

  • disability;

  • gender reassignment;

  • pregnancy and maternity;

  • race ;

  • religion or belief;

  • sex;

  • sexual orientation.

It also applies to marriage and civil partnership, but only in relation to the requirement to have due regard to the need to eliminate discrimination.

The general duty

Public bodies will be under a general duty to have due regard to the need to:

  • eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act;

  • advance equality of opportunity between people from different groups; and

  • foster good relations between people from different groups.

Having due regard means consciously thinking about the above 3 matters when making decisions for example, in relation to matters of employment, policies and the provision of services.

Having due regard to the need to advance equality of opportunity involves considering the need to:

  • remove or minimise disadvantages suffered by people due to their protected characteristics;

  • meet the needs of people with protected characteristics; and

  • encourage people with protected characteristics to participate in public life or in other activities where their participation is low.

Fostering good relations involves tackling prejudice and promoting understanding between people from different groups.

In order to comply with the general duty public bodies will be able to treat people possessing a protected characteristic for example, disabled people, better than others.

Specific duties

Most public bodies will also be subject to certain specific duties. There are specific duties in relation to the setting of measurable equality objectives and publication of information about their performance on equality.

How is the Act enforced?

In general

Where a provision of the Act is contravened proceedings can be brought through the Civil Courts. If the claim arises out of the employment of a person a claim can be brought in an Employment Tribunal.

A wide range of remedies are available to the Civil Courts and Employment Tribunals including the power to award compensation for injured feelings and to make recommendations to reduce discrimination in the workplace.

Normally claims brought in the Civil Courts will have to be brought within 6 years of the date of the act to which the claim relates and within 3 months in the case of claims brought in an Employment Tribunal.

The Equality Duty

The Equality and Human Rights Commission will be responsible for assessing compliance with and enforcing the Equality Duty. It has powers to issue compliance notices to public bodies that have failed to comply and can apply to the courts for an order requiring compliance.

The Commission, individuals and interested groups of people can enforce the general duty by judicial review.