Equality, diversity & inclusion
Equality and Diversity - Legal Requirements
Adopting the procedures outlined in this guide will help not only to ensure that discrimination does not occur, but also will assist in providing evidence of good practice when resisting any claims of discrimination which may be made to an Employment Tribunal.
Those involved in the process of recruitment, selection and appointment must be aware of relevant legislation and must ensure that this is not contravened.
Do you know what an Equality Analysis (EA) is?
Have you been tasked with completing one?
Are you developing a new strategy/project/policy/service or revising an existing strategy/project/policy/service?
Are you organising an office/building move for your staff/service?
An equality analysis is simply a risk management tool to ensure legal compliance with the Public Sector Equality Duty (Equality Act 2010) and ensure best management practice.
It is a project planning aide that helps us in ensuring that we have transparent and fit for purpose policies and consultation and communication plans and can help us evidence that we are not discriminating against anyone, that we are providing equal opportunities to all and that we are promoting good relations between all. It is a checklist that helps us consider the impact on all our stakeholders, be they staff, students, visitors, partners etc. and supports us in thinking about being inclusive and accessible to all and in creatively making reasonable adjustments.
(Good practice is if a few of you get together to fill this form in. Best practice is when you involve all stakeholders right from the beginning in helping conduct the EA. Of course, resources and timing may not allow you to do this.)
Download the form below if you need any support in completing the EA please contact A.M.MacKinlay@lboro.ac.uk (Telephone: 01509 222389).
Please note that there is now an online form available with helpful guidance notes to assist you in completing the EA.
There is an online training course available which takes around 30 minutes to complete through Organisational Development and Marshalls (who provide our online Equality & Diversity online courses).
This Act came into force on 1st October 2010. The Equality Act replaces nine laws and 116 regulations to make it easier for employers to understand discrimination legislation.
The nine main pieces of legislation that have merged are:
- the Equal Pay Act 1970
- the Sex Discrimination Act 1975
- the Race Relations Act 1976
- the Disability Discrimination Act 1995
- the Employment Equality (Religion or Belief) Regulations 2003
- the Employment Equality (Sexual Orientation) Regulations 2003
- the Employment Equality (Age) Regulations 2006
- the Equality Act 2006, Part 2
- the Equality Act (Sexual Orientation) Regulations 2007)
The Act applies to England, Scotland and Wales and its provisions are coming into force in stages. Some provisions will only be implemented through subsequent regulations.
The Act identifies nine 'protected characteristics'. They are:
- gender reassignment
- marriage and civil partnership
- pregnancy and maternity
- religion or belief
- sexual orientation
The Equality Act gives a new definition of direct discrimination; “direct discrimination occurs when a person treats one person less favourably than they would another because of a protected characteristic”.
Direct discrimination may occur if, for example:
- A Higher Education Institution (HEI) or students’ union decides not to interview a Muslim applicant for a job because it assumes, on the basis of their religion or belief, that he or she will not be prepared to work in a bar
- An HEI only shortlists male job applicants for an interview because they assume women will not fit in
- An HEI refuses to let a staff member go on a residential trip because they are a wheelchair-user
- An HEI does not offer a training opportunity to an older member of staff because they assume that they would not be interested, and the opportunity is given to a younger worker
- Recruiting on the assumption that a position is unsuitable for applicants of one sex or ethnic origin
- Not short-listing applicants because of their marital status, sex, religious belief, sexual orientation, disability status or ethnic group
- Refusing to employ a man in a ‘women only’ workplace
- Operating a policy or practice of having no female employees (no married women) above a certain level or seniority in a particular grade.
- Failing to appoint a woman because she is pregnant
- Setting selection tests for one group which are not applied to another (for example English Language tests being set for Asian applicants which are not set for white applicants)
Discrimination based on association can occur if, for example:
- A member of staff, whose child has attention deficit hyperactivity disorder, is refused access to a graduation ceremony or to a staff function because of fears about the child’s behaviour
- An employee is overlooked for promotion because their partner has undergone gender reassignment
Discrimination based on perception can occur if, for example:
- An employer decides not to promote a female employee because senior staff believe her to be pregnant irrespective of whether she is pregnant or not
- A mental health and wellbeing officer refuses to work with a member of staff because they believe the staff member to be gay irrespective of whether the staff member is gay or not
Indirect discrimination occurs when a provision, criterion or practice is neutral on the face of it, but its impact particularly disadvantages people with a protected characteristic, unless the person applying the provision can justify it as a proportionate means of achieving a legitimate aim. Ultimately, if tested, it will be for a court of law or tribunal to determine what is justifiable.
Indirect discrimination may occur if, for example, an employer who requires staff to commit to working from 8pm to 11pm every evening indirectly discriminates against women, who are more likely to be primary carers of children, unless this can be objectively justified as above. Examples:
- Advertising a vacancy within an organisation which employs very few women or members of ethnic minorities at that post’s level
- Asking questions relating to marital status, family and childcare responsibilities. (Asking the same questions of both sexes does not necessarily ensure non-discrimination. The use of the information may still be discriminatory.)
- Setting an age limit or qualification which cannot be justified (this may particularly disadvantage women who have taken a career break to have children)
- Only using word of mouth to advertise a vacancy
- Setting a condition which cannot be objectively justified on business grounds which disadvantages on grounds of religion or belief
Unfair discrimination in employment occurs as a result of prejudice, misconception and stereotyping which hinders the proper consideration of an individual’s talents, skills, abilities, potential and experience. It can be direct or indirect, intentional or unintentional. A fair and transparent recruitment process is vital since recruitment is the gateway to employment opportunities. Nothing in the Act prevents us from hiring the best person for the job.
All forms of job advertisement, including emails, direct mail, signs, university notice boards, as well as advertising in general to the public in newspapers, the web, TV and radio are covered by the Act. Therefore you must inform staff that are absent from work (such as women on maternity leave, those on long-term sick leave and those that work part-time or remotely) of any jobs that become available.
Be wary of asking for dates of education and qualifications as that can indicate age. Ensure that there are accessible formats available within the recruitment process such as email, Braille, easy read, large print, audio-tape and computer disc etc.
Short listing, selection tests, assessment centres and interviews must be accessible, transparent and fair. Selection should be irrespective of any protected characteristic unless it is a genuine occupational requirement (section 4.7).
The recruitment process should take into account wherever possible dates and times, so as not to coincide with religious festivals or observances, dietary needs and cultural norms. Certain tests could be indirectly discriminatory because of age and disability such as those that favour good hearing, vision or muscular strength. These tests will need to be justified as a ‘proportionate means of achieving a legitimate aim’. It is good practice to anticipate reasonable adjustments for disabled applicants.
The Act outlines three types of harassment:
- unwanted conduct that has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant, or violating the complainant’s dignity (this applies to all the protected characteristics apart from pregnancy and maternity, and marriage and civil partnership)
- unwanted conduct of a sexual nature (sexual harassment)
- treating a person less favourably than another person because they have either submitted to, or did not submit to, sexual harassment or harassment related to sex or gender reassignment
Harassment may occur if, for example, a member of staff, student, contractor or visitor makes comments on an applicant’s sexuality or age in a way that makes the applicant feel uncomfortable.
The perceptions of the recipient of the harassment are very important and harassment can have been deemed to have occurred even if the intention was not present, but the recipient felt they were being harassed.
Victimisation takes place where one person treats another less favourably because he or she has asserted their legal rights in line with the Act or helped someone else to do so.
Victimisation may occur if, for example:
- an applicant is refused a job due to having made a complaint of unfair treatment at a recruitment exercise or who previously supported a colleague/employee in submitting a formal complaint.
There are certain circumstances where an employer can discriminate; this is when a genuine occupational requirement applies (formerly Genuine Occupational Qualification: GOQ). Examples:
- Being of a racial group where authenticity is required for acting, modelling or a ‘special ambience’, e.g.: Chinese waiter/waitress for a Chinese restaurant
- where the job holder provides services or welfare which can be provided most effectively by a person of that racial group
Being a man or a woman is a GOR only where
- Authenticity is required for example acting or modelling
- Reasons of decency/privacy e.g. changing room attendants
- Work will take place in a single sex prison or hospital
- The job involves working outside the UK in a country whose laws and customs are such that duties could not be performed by a person of the opposite sex
- The law requires the person to be of a particular sex, e.g. women are not legally permitted to work down the mines
Being of a particular religious belief
- For example Head teacher of a faith school
Being of a Particular Sexual Orientation
- The work can only be undertaken by someone of a particular sexual orientation
With all potential GORs, they should be checked with the relevant Departmental/School HR Adviser to ensure you are working within the legislative boundaries.
Regarding age, different treatment can be justified if it is a proportionate means of meeting a legitimate aim. However, this can be a difficult test to meet. For example, it is unlikely that an HEI would be able to justify rejecting a candidate for a frontline student services role on the basis that they are ‘too old to identify with students’. The HEI would have to use objective evidence to justify that the role could only be undertaken by someone of a particular age group, and that this is proportionate to achieving the aim of providing services to students. This justification is likely to be difficult to meet in most scenarios in higher education. The new definition of direct discrimination extends protection based on association and perception, already applicable to race, sexual orientation and religion or belief, to include age, disability, gender reassignment, sex and pregnancy and maternity.
The Act makes it unlawful to discriminate against a disabled person. Disability is defined as “a long term physical or mental condition which has a significant adverse effect upon a person’s ability to undertake normal day to day activity”. Long term in this legislation is interpreted as being expected to last for 12 months or more. There is a positive duty to provide necessary reasonable adjustments. Job applicants who believe they have been unjustifiably discriminated against may take their complaint to an Employment Tribunal. Justification must be substantial and material to the particular case.
The Act states that it is discriminatory to treat a disabled person in a particular way which, because of their disability, amounts to treating them unfavourably when the treatment cannot be shown to be justified. For this type of discrimination to occur, the employer, or other person, must know, or could reasonably be expected to know, that the person has a disability.
Failure to make reasonable adjustments
The Act will continue the existing duty upon Higher Education Institutions (HEIs) to make reasonable adjustments in relation to staff. These adjustments apply where a disabled person is placed at a substantial disadvantage in comparison to non-disabled people.
The first requirement obliges HEIs to consider the way in which they do things. For example, showing due regard to changing a practice of providing application forms only in paper format. The HEI would need to consider an adjustment to this practice, and provide the application form and information in alternative formats. The second requirement relates to the making of changes to the built environment, such as providing inclusive access to offices/lecture theatres. The third requirement requires HEIs to show due regard to the provision of auxiliary aids and services, for example providing computer screen-reading software for staff with a visual impairment.
Some examples in the recruitment process are allowing disabled applicants the following:-
- Extra time to complete the test
- Provision of a reader or scribe during the test
- Accepting a lower pass rate if a person whose disability inhibits performance in such a test
- Provision of oral or oral tests depending on the disability.
Enquiries about disability and health
HEIs should note that the Act introduces new provisions which make it unlawful for an employer to ask about the health of a job applicant either before offering work to an applicant, or before including an applicant in a pool of shortlisted candidates from whom the employer intends to select a person to whom to offer work.
The employer does not contravene the Act merely by asking about the applicant’s health, though the way in which the employer uses any disclosed information could be a contravention of a relevant disability provision.
HEIs will continue to be able to, and should, ask all applicants whether they require any reasonable adjustments or support during the recruitment and interview process.
HEIs will also continue to be able to ask monitoring questions establishing whether there are disabled applicants applying for job positions. As Loughborough is signed up to the Two Ticks scheme, monitoring is important in order to give guaranteed interviews to disabled applicants who meet the essential criteria for a post.
Details of the new gender pay gap reporting duty are available here. The University is required to publish the gap and narrative statement at a portal reached through: https://genderpaygap.campaign.gov.uk/. The University is required to publish information that demonstrates compliance with the equality duty no later than 30 March 2018. Subsequently, annually
Further provisions under the Act, relating specifically to recruitment and promotion in employment, came into force on 6 April 2011.
The new positive action provisions mean that it is not unlawful to recruit or promote a candidate who is of equal merit to another candidate, if the employer reasonably thinks the candidate:
- has a protected characteristic that is underrepresented in the workforce; or
- that people with that characteristic suffer a disadvantage connected to that characteristic.
In practice it allows an employer faced with making a choice between two or more candidates who are of equal merit to take into consideration whether one is from a group that is disproportionately under-represented or otherwise disadvantaged within the workforce. This is sometimes called either a ‘tie-breaker’ or the ‘tipping point’. But this kind of positive action is only allowed where it is a proportionate way of addressing the under-representation or disadvantage.
However, positive action does not allow an employer to appoint a less suitable candidate just because that candidate has a protected characteristic that is under-represented or disadvantaged.
- An employer has a vacancy for one of its senior jobs. All the other senior jobs at that level are done by men. The employer conducts a recruitment exercise and at the end of a stringent and objective process finds that two applicants – a man and a woman – could do the job equally well. The employer could decide to take positive action and give the job to the woman. But the employer couldn’t give the job to the woman if the man would be able to do the job better than her – that would be unlawful direct discrimination against the man.
- An employer is recruiting for its graduate training scheme. After the first round of assessment the employer decides to shortlist 20 candidates. There is a tie-breaker situation for the 20th place on the shortlist as there are a number of candidates of equal merit. The employer decides to use the positive action provisions to advance a candidate from a BME background to the next round of recruitment, because people from BME backgrounds are under-represented in the company. This would mean that the non-BME candidates could not claim unlawful race discrimination for not being put on the shortlist.
Positive action is entirely voluntary – there is no requirement for an employer to use the provisions in recruitment and promotion.
Additional Employment Legislation (not covered within the Equality Act 2010)
The regulations prevent fixed term employees being treated less favourably than similar permanent employees and limit the use of successive fixed term contracts. The use of successive fixed term contracts will be limited to four years, unless the use of further fixed term contracts is justified on objective grounds. For the purposes of this part of the Regulations, service accumulated from 10 July 2002 will count towards the four-year limit. If a fixed term contract is renewed after the four-year period, it will be treated as a contract for an indefinite period, unless the use of a fixed term contract can be objectively justified.
A fixed term contract employee has the right to ask their employer for a written statement confirming that their contract is permanent or setting out objective reasons for the use of a fixed term contract before the four year period. From 1 October 2002, the end of a task contract that expires when a specific task has been completed or a specific event does or does not happen will be a dismissal in law. Employees on these task contracts of two years or more will have a right to a written statement of reasons for this dismissal and the right not to be unfairly dismissed. If the contract lasts for two years or more and the contract is not renewed by reason of redundancy, the employee will have a right to a redundancy payment.
Employees who believe their rights have been infringed under these regulations may take their case to an Employment Tribunal.
Legislation in relation to part time workers ensures that part time staff are not treated less favourably than comparable full timers in their terms and conditions of employment unless objectively justified. Part timers are entitled to:
- The same hourly rates of pay
- The same access to pension schemes
- The same entitlements to annual leave and maternity/paternity leave on a pro rata basis
- The same entitlement to contractual sick pay
- No less favourable treatment in access to training
Applicants may withhold information about convictions which are ‘spent’ for other purposes under the Act. This will include a variety of offences but could range from parking convictions through to petty theft. Where this is the case, convictions cannot normally be taken into account when considering someone’s suitability for a post unless it is a post where all convictions may be taken into account. Examples of this include where the staff member will be working with vulnerable people or children, examples include teaching, law and medicine. Some convictions can never be ‘spent’ and will always be taken into account. These are likely to be for serious convictions such as assault and fraud and are defined as those with custodial sentences in excess of 30 months. Where criminal record checks are required, this is undertaken under Disclosure; criminal record checks are made by theDisclosure and Barring Service (DBS). Further details are available from Human Resources.
The Act gives further effect to rights and freedoms guaranteed under the European Convention of Human Rights. Article 14 affirms the prohibition of discrimination on grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
The Asylum and Immigration Act 1996 places an obligation on the employer to check an individual’s eligibility to work in the UK. This check must be carried out at the time of offer of employment and any offer will be conditional on the provision of acceptable documentation, which indicates the individual’s right to work in the UK. This check should be made of all prospective employees, regardless of their perceived or known ethnic origin or nationality. Where an individual requires a certificate of sponsorship, this must be secured before the individual undertakes any work, paid or unpaid.