Useful Definitions under the Equality Act 2010
Section 13 of the Equality Act 2010 states that 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 if:
- An HEI or student 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 student 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 (Equality Challenge Unit, 2010)
Direct discrimination by association
The Act makes it clear that discrimination occurs if an employer discriminates against an employee because of a protected characteristic, whether or not the employee possesses that characteristic. This means, for example, that it will be unlawful to discriminate against someone because they associate with a person who possesses a protected characteristic.
This kind of discrimination is already applicable to race, sexual orientation and religion or belief, and the same principle will also apply to age, disability, gender reassignment, sex and pregnancy and maternity. (Evershed, 2010)
Example of Direct Discrimination by Association:
- A student, whose child has attention deficit hyperactivity disorder, is refused access to a graduation ceremony because of fears about the child’s behaviour
- An employee is overlooked for promotion because their partner has undergone gender reassignment (Equality Challenge Unit, 2010)
Discrimination by perception
The Act makes it unlawful to discriminate against someone because they are perceived to possess a particular protected characteristic, even if the employer is mistaken. This sort of discrimination by perception is already prohibited where discrimination is on the grounds of sexual orientation, age or race. The same principle will also apply to sex, pregnancy, gender reassignment, and age and disability discrimination.
Example of direct discrimination by perception:
- 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 student because they believe the student to be gay irrespective of whether the student is gay or not (Equality Challenge Unit, 2010)
Individuals who consider that they have been discriminated against because of a combination of protected characteristics can bring a claim of dual discrimination (Section 14, Equality Act 2010). The new concept applies to claims brought based on only a combination of two (2) protected characteristics.
Example of combined discrimination:
- A black female member of staff who is discriminated against because she is a black woman – as opposed to a black man or a white woman – could bring a single claim for combined race and sex discrimination. However, if she feels she is being discriminated against because she is black or because she is a woman, she could also bring a claim for race or sex discrimination on its own. This section of the Act is likely to be implemented from April 2011. (Equality Challenge Unit, 2010).
- A black woman who is passed over for promotion to work on reception because her employer thinks black women do not perform well in customer service roles, whereas the employer would not feel the same way about a white woman or a black man. Which means it is the combination of being black and female which is the basis of discrimination. (Evershed, 2010)
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 is unlawful in relation to the protected characteristics of age, marriage and civil partnership, race, religion or belief, sex, and sexual orientation, but not pregnancy and maternity. The Equality Act 2010 extends protection against unjustifiable indirect discrimination to gender reassignment and, more significantly disability.
Example of indirect discrimination:
- 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. (Equality Challenge Unit, Evershed, 2010).
According to the Equality Act 2010, there are 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
- 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
Example of harassment:
- A member of staff makes comments on a student’s sexuality in a way that makes the student feel uncomfortable.
The perceptions of the recipient of the harassment are very important and harassment can be deemed to have occurred even if the intention was not present, but the recipient felt they were being harassed. A person can also make a complain of harassment even if it is not directed at them. (Equality Challenge Unit, Evershed, 2010)
According to the Equality Act 2010, 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.
Examples of victimisation:
- A student alleges that they have encountered racism from a tutor, and as a result they are ignored by other staff member
- A senior member of staff starts to behave in a hostile manner to another member of staff who previously supported a colleague in submitting a formal complaint against the senior manager for sexist behaviour
- An employer brands an employee as a ‘troublemaker’ because they raised a lack of job-share opportunities as being potentially discriminatory (ECU,2010).
According to the Equality Act 2010, discrimination against a woman because she is breastfeeding is a case of sex discrimination.