The Equality Act 2010 The Equality and Human

The Equality Act 2010 & The Equality and Human Rights Commission Lynn Welsh Head of Legal 1

Equality Act 2010 Slide Number 2

Equality Act 2010 16 Parts; 28 Schedules – eg: • Key concepts (P 2 and sch 1) • Services and public functions (P 3, sch 2&3) • Premises (P 4, sch 4&5) • Work and employment services (P 5, Sch 6, 7, 8 & 9) • Education (P 6, Sch 10, 11, 12, 13 &14) • Associations (P 7, Sch 15 &16) • Other unlawful conduct (P 8) • Enforcement (P 9, sch 17) • Advancing equality (P 11, Sch 18 &19) • Exceptions (P 14, sch 22 &23) 3

Key concepts – Protected characteristics • • • Age Disability Gender reassignment Marriage and civil partnership Pregnancy and maternity Race Religion and belief Sexual orientation 4

Gender reassignment • Where a person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex. 5

Summary of definition A person is protected from discrimination if they: • Have proposed to undergo gender reassignment • Are in the process of reassigning their sex • Undergone the process, or part of the process, previously • It may include medical gender reassignment treatment, but does not require medical treatment. 6

Gender Recognition Certificates Holders of Gender Recognition certificates must be treated according to their acquired gender. • Can have a GRC despite being pre-operative (and not visually indistinguishable from acquired gender). • May not have a GRC (out of choice, due to cost or due to being married and not wishing to divorce) 7

Key concepts Prohibited conduct • • Direct discrimination Indirect discrimination Harassment Victimisation 8

Direct discrimination • A discriminates against B if, because of a protected characteristic, A treats B less favourably than he treats or would treat others. • Discrimination by association or perception included • Direct discrimination can never be justified except in relation to age 9

Indirect discrimination • A applies a provision, criterion or practice (PCP) to everyone • The PCP puts, or would put, people with a particular characteristic at a disadvantage when compared with people without that characteristic • The PCP puts, or would put, B at that disadvantage and • The PCP is not a proportionate means of achieving a legitimate aim. 10

Harassment • A harasses B if he engages in unwanted conduct ‘related to a relevant protected characteristic’ which has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. • Includes association and perception 11

Exceptions to services and public functions • Insurance (Sch 3, Part 5, para 22 & 23) • Marriage (Sch 3, Part 6) • Separate and single sex services (Sch 3, Part 7) • Communal accommodation (Schedule 23, Para 3) 12

Exceptions – other • Charities (s 193 & s 194) • Competitive sports (s 195) • Gender reassignment harassment in schools (s 85(10(a)) 13

Role and power of the Commission Slide Number 14

Equality and Human Rights Commission • Established October 2007 as the Commission for Equality and Human Rights • Replaced EOC, CRE, DRC • With a remit to cover nine equality strands and human rights in GB • But excluding issues which would be addressed by the Scottish Human Rights Commission

General duties • Promote equality and diversity • Promote human rights • Promote good relations between groups • Monitor the law • Monitor progress towards change

Commission powers • • • To provide information and advice Conduct inquiries To publish codes of practice To make grants Enter into binding agreements Enforce the public sector duties - assessments and compliance notices

Legal powers • Provide legal assistance to an individual bringing a claim under the EA, or which involves equality and human rights, but not human rights alone • Intervene in cases at any level, which involve equality or human rights or both • Bring Judicial Review proceedings in Commission’s name, which involve equality or human rights or both • Apply for an interdict • Conduct investigations, including issuing unlawful act notices, and action plans 18

EHRC strategic priorities for using litigation powers Where action would: • bring a significant positive impact in terms in an organisation or across a sector • create greater understanding of rights and obligations under the equality enactments or human rights law • address significant disadvantage or major abuse or denial of human rights • clarify an important point of law under the Equality Act 2010 or Human Rights Act • extend or strengthen protections and rights under the Equality Act 2010 and human rights law. 19

Test case issues • ‘proposing’ to undergo gender reassignment – how someone ‘manifests’ this proposal • Association and perception • Indirect Discrimination • Public functions • Discrimination and harassment in schools • Occupational Requirements complying with EU Framework Directive • GRCs in single sex services/communal accommodation • When someone without a GRC should be recognised for purposes of exceptions? • Insurance exception • Discrimination by Associations • Instructing and causing discrimination 20

The Commission’s legal team in Scotland • Strategic human rights and equality litigation www. equalityhumanrights. com/legal-and-policy/strategichuman-rights-and-equality-litigation/ • Legal Team Bulletin www. equalityhumanrights. com/scotland/legal-news-inscotland/equality-law-bulletin/ • Requests for assistance: legalrequestscotland@equalityhumanrights. com 21