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Legislation
Disclaimer
Every attempt has been made to ensure that all the legislation contained within is accurate and up-to-date. This information should be treated as a guide only and professional advice should be sought where necessary.
EQUAL OPPORTUNITY LAW
Unfair discrimination in employment is wrong and against the law. It is bad for individuals who are denied employment, suffer victimisation or harassment due to prejudice. It is bad for businesses who deny themselves access to the widest pool of talent and not sharing in the benefits, such as increased motivation, lower staff turnover and access to wider markets. All benefits that a diverse workforce and effective equality policies and procedures can bring.
All organisations are required, by law, not to discriminate against employees by reason of their race, colour, disability, gender, nationality, martial status or ethnic or national origins.
In order to comply with legislation, organisations should ensure that they have a written equal opportunities policy and action plan. In addition to, written procedures covering equal opportunities in recruitment, promotion, transfer, training, dismissal and redundancy.
Race Relations Act 1976 & Race Relations (Amendment) Act 2000
What protection does the legislation give?
The Act makes it unlawful to discriminate against anyone on the grounds of race, colour, nationality, ethnic or national origin.
The Commission for Racial Equality (CRE) was set up under the Act. The CRE is a publicly funded non-governmental body that works to promote racial equality.
The Act outlaws:
Direct discrimination – treating employees less favourably than another, in similar relevant circumstances, on the grounds of his or her colour, race, nationality, ethnic or national origins or because of these attributes in someone whom they are related or in a relationship with.
Examples: ignoring racial harassment of employees
Refusing a service to people from a particular ethnic minority group.
Indirect discrimination – which occurs when a condition or requirement is applied equally to employees of different racial groups and when the following three conditions are jointly met:
- The proportion of workers in the disadvantaged racial group who can comply, is considerably smaller than the proportion of workers in other racial groups; and
- An employee suffers because he or she cannot comply; and
- The employer cannot show the condition or requirement to be objectively justifiable irrespective of colour, race, nationality, ethnic or national origin of the employee to whom it is applied.
Examples: where an organisations’ rules governing uniform do not allow for a particular racial groups’ customs.
Racial Harassment – it is unlawful to intentionally harass, alarm or distress through threatening, abusive or insulting behaviour, words or displays. This applies when such acts are racially motivated.
Victimisation – occurs when a worker is treated less favourably because they have exercised their rights under the race equality laws or have supported someone else to do so.
Examples: where a candidate is rejected because the employer is aware of previous complaints of discrimination made by the candidate against the organisation or another organisation.
Segregation – the Act makes it illegal for employers to separate or with intent place workers in specific groups based on their race, colour, nationality, ethnic or national origins.
What are the legal exceptions to the Act?
- Genuine occupational qualification – exemptions can occur where being a member of a particular racial group is a ‘genuine occupational qualification.’
- Positive action training for under-represented.
- Actions under statutory authority – employers are responsible for unlawful acts of discrimination carried out by their employees in the workplace.
Race Relations (Amendment) Act 2000
The Race Relations (Amendment) Act 2000 fulfils recommendation made by the Stephen Lawrence Inquiry report and strengthens the Race Relations Act 1976 to impose general duties on all public authorities to promote racial equality and equality of opportunity.
The Act addresses institutional racism and suggests the need to have organisational and cultural change in outlook.
It is the duty of local authorities to regularly monitor their workforce and employment practices to make sure that their practices and procedures are equitable and transparent in order for the public sector to better reflect the society that it serves.
New duties imposed on public bodies cover:
- Elimination of unlawful discrimination
- Promotion of equality of opportunity
- Promotion of good race relations between people of different racial groups.
Duties apply to all work contracted out by the public authorities.
Under the Act the Commission for Racial Equality (CRE) has the powers to issue a compliance notice where an authority has failed to fulfil specific and/or general duties. This is a legal document requiring a body to meet the specific duties within a set timescale. Failure to comply with this could lead to a court order, and where this fails legal action can be taken.
The CRE may issue Codes of Practice to help public authorities in fulfilling their general and specific duties.
Employment Act 2002
The Employment Act 2002 includes provisions on a variety of issues, including ‘family friendly’ working and equal treatment for fixed-term employees as well as other issues.
What protection does the legislation give?
- Workplace dispute resolution
The act promotes internal resolution of workplace disputes. The act lays down the statutory disciplinary, grievance and dismissal procedures, with each involving three stages.
- Fixed Term Work Directive
The act introduces measures to avert pay and pension discrimination amongst fixed-term employees. This provision states that employees on fixed-term contracts should be treated the same as the permanent workers. This came into effect on 1st October 2002.
- Trade Union Learning Representatives
New statutory rights have been introduced under this act allowing trade union ‘learning representatives’ the right to paid time off work.
- Equal Pay Questionnaire
This involves pay case that is brought to the employment tribunals. The questionnaire procedure allows comparative information to be drawn up as well as allowing access to other employee’s pay rates. This came into effect on 6th April 2003.
- Maternity Leave
The act increases maternity leave for working mothers to six months paid and a further six months unpaid leave.
- Paternity Leave
Two weeks paternity leave has also been introduced for working fathers. This is at the same rate as maternity pay. The leave applies to all employees, which includes the biological father or the mother’s partner or husband but not the biological father.
- Adoption Leave and Pay
The act introduces six months paid leave following the adoption of a child and a further six months unpaid leave. This applies to both married couples and single people.
Employers can reclaim for payments made towards maternity, paternity and adoptive leave. Small employers can reclaim 100% reimbursement, in other cases 92% is reclaimable.
- New Flexible Working Provisions
This provision applies to parents, adopters, guardians or foster parents of children under the age of six.
In order to qualify it is a requirement that the employee has been in a continuous service with the employer for a minimum period of 26 weeks at the time of making their application.
The act supports creating a highly productive, modern and successful workplace through fairness and partnership at work.
Where can I get more information?
For further information on the new legislation log onto www.dti.gov.uk or for information relating to employment relations visit www.acas.org.uk
Employment Equality (Religion or Belief) Regulations 2003
The regulations outlaw discrimination on the grounds of Religion or Belief. The regulations came into force in December 2003 and are aimed at promoting equality. The regulations implement strands of the EU Employment Directive 2000.
Religion or belief is defined as “any religion, religious belief or similar philosophical belief.”
What do the regulations outlaw?
Direct Discrimination - occurs when an employee is treated less favourably than another, in similar relevant circumstances, because of their religion or belief.
Indirect discrimination - occurs where a provision, criterion or practice that is not justifiable, puts people of a particular religion or belief, at a disadvantage.
Harassment – it is unlawful to defy ones dignity, create a threatening, intimidating, humiliating or offensive environment.
Victimisation – occurs when a person (the person victimised) is treated less favourably because they have made or intend to make a complaint regarding the way they have been treated.
What are the legal exceptions to the regulations?
- Positive action – encouraging people of a particular religion to apply for particular jobs, or designing training courses for people of a particular religion or belief who are underrepresented in a particular job to compete more effectively.
- National security
- Protection of Sikhs from discrimination in relation to the wearing of the safety helmets.
- Where being of a particular religion or belief is a genuine occupational requirement.
The Human Rights Act 1998
The Human Rights Act (HRA) came into force in October 2000, in English Law. The act took effect in Scotland, Wales and Northern Ireland before this. The act gives further rights and freedoms guaranteed under the European Convention on Human Rights.
What mechanisms are in place to protect Human Rights?
All UK courts now have a statutory duty to make certain that all the laws act in compliance with the Convention rights as “far as possible”.
It is a requirement that as far as possible, primary and secondary legislation is read and used in the appropriate manner which is attuned to the Convention Rights.
The significant sections of the Human Rights Acts are:
Article 2 – Right to life
Article 3 – Prohibition of torture
Article 4 – prohibition of slavery or forced labour
Article 5 – right to liberty and security
Article 6 – right to fair trial
Article 7 – no punishment without law
Article 8 – right to privacy and family life
Article 9 – freedom of thought, conscience and religion
Article 10 – freedom of expression
Article 11 – the right to freedom of association, including joining a trade union
Article 12 – right to marry
Article 14 – prohibition of discrimination
Article 16 – restrictions on political activity of aliens
Article 17 – prohibition of abuse of rights
Article 18 – limitation on use of restrictions on rights.
Who does the act cover?
The HRA serves to allow individuals to claim their rights under the European Convention on Human Rights (ECHR), in all UK courts and tribunals instead of going to the European Court in Strasbourg.
Equal Pay Act (EPA) 1970
The Equal Pay Act 1970, as amended by the Equal Pay (Amendment) Regulations 1983, serves to eliminate discrimination in terms of contractual pay and conditions between men and women when the work they do is either:
- the same or like work or
- Of equal value or
- Rated as equivalent in the same employment.
Both direct and indirect discrimination are covered by the act.
Who does it cover?
The Act covers all employees, including self employed, freelance workers and apprentices, whether on full-time, part-time, casual or temporary contracts and regardless of service in Great Britiain. It applies to men and women of any age, including children.
Anything else I need to know?
Claims for equal pay are only applicable when comparing rates of pay with workers of the opposite gender. Under the Sex Discrimination (Gender Reassignment) Regulations 1999, transsexuals who intend to undergo, are undergoing or have undergone gender reassignment also have the right not to be discriminated against in relation to pay.
Disability Discrimination Act 1995
The Disability Discrimination Act (DDA) serves to end the discrimination that many disabled people face making it unlawful for employers to discriminate against (current or prospective) employees what have a disability or have previously had a disability. The Act protects disabled people in employment, access to goods, facilities and services, the management, buying or renting of land or property and education.
What is a disability?
Disability is defined as:
“a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities” (www.drc.org.uk)
The definition covers the following:
Impairment
Physical impairment – affects the senses, e.g. hearing and sight
Mental impairment – covers learning disabilities and mental illness, provided the condition is documented by a professional body of medical opinion.
Substantial
The condition must be more than just a minor case, e.g. not able to turn taps or remember and relay a simple message correctly.
Long-term
This covers a condition lasting 12 months or be expected to last 12 months or longer.
Day-to-day activities
These activities are carried out on a regular basis and entail one of the following:
- Continence
- Senses – speech, hearing or eyesight
- The ability to recognise physical danger
- Mobility
- Manual dexterity
- The ability to concentrate, learn or understand and memory
- Physical co-ordination
- Being able to lift, carry or move objects.
What does it mean for you?
The Disability Discrimination (Amendment) Act 2005 applies to all employers to ensure that they make reasonable adjustments to the workplace, workstation or working environment to help the disabled person to cope with their disability.
Reasonable adjustment should ensure that employment arrangements or premises do not put a disabled person at a disadvantage in comparison to a non-disabled person. A few examples of reasonable adjustment include:
- Relocating some of the duties of an disabled employee to someone else
- Changing a disabled employees working hours
- Providing a reader or interpreter
- Allowing time off for therapy/rehabilitation
- Modifying instructions and reference manuals.
Who and what does the Act cover?
From 1st October 2004 the DDA covers all organisations. There is no longer a small employer exemption for organisations with fewer than fifteen employees.
All organisations must ensure that they are in compliance with the DDA in respect of:
- Recruitment
- Terms and conditions of employment
- Pensions
- Dismissal
- Opportunities for promotion, transfer, training or receipt of other employment benefits (or refusal of them)
- Long term sickness.
Disability Discrimination Act 2005
The Act came into effect as of April 2005, with some new laws coming into force in December 2006. The Act amends the Disability Discrimination Act (DDA) 1995, amongst other measures.
The Act’s main provisions are as follows:
- To ensure that Councillors and authorities and their members are within the scope of the DDA.
- To ensure that those functions of public authorities that are not already covered by the DDA are now within the scope.
- Public authorities now have a new duty to eliminate unlawful discrimination and harassment against disabled persons. They are required to promote equality of opportunity for disabled persons and amongst disabled persons and other persons.
- Under Part 3 of the Act, the operators of transport vehicles now have a duty not to discriminate against any disabled persons. By 1st January 2020 all rail vehicles will need to be accessible to disabled persons, which includes wheelchair users.
- Rail vehicle accessibility compliance certificates need to be obtained for prescribed rail vehicles.
- Landlords and others who manage rented premises now have an extended duty to ensure that reasonable adjustments have been made so that disabled persons can easily rent and access property.
- The Act covers people with cancer, those persons who have HIV infection and multiple sclerosis.
- Part 3 of the DDA 1995 has been amended further to cover larger private clubs who have 25 or more members.
- To end the requirement that mental illness must be “clinically well-recognised”.
- The Blue Badge Parking Scheme
The Chronically Sick and Disabled Persons Act 1970 has been amended to ensure that the disabled persons parking badges are reciprocal with arrangements in other European States.
For further details please visit the Disability Rights Commission (DRC) website.
Asylum and Immigration Act 1996
It was not until after January 1997 when the act came into effect. The act states that it is an criminal offence to employ someone under the age of 16 who does not have permission to live or work in the United Kingdom, unless that person has current and valid permission to be in the United Kingdom that does not prevent him/her taking that job.
Who does the act cover?
The act covers all employees, full-time, part-time, casual employees and students.
What does it mean for me?
An employer is required to check the backgrounds of employees who commenced work after 27th January 1997. Therefore, it is essential that employers check that all new job applicants have documents which can demonstrate their legal status. These include:
- National Insurance number or
- Passport with valid permission for work in the United Kingdom or
- Valid United Kingdom work permit
Anything else I need to know?
In order to avoid prosecution employers must show that they have retained copies of any documents and believed them to be genuine.
Sex Discrimination Act (SDA) 1975
The Sex Discrimination Act 1975 serves to render unlawful any kind of sex discrimination against individuals in the areas of employment, education and the provision of goods, facilities and services and in the disposal or management of premises. The Act also prohibits discrimination on the ground of marriage.
Types of Sex Discrimination
Direct sex discrimination - is where an individual is treated less favourably than a person of the opposite sex, in similar relevant circumstances because of his or her gender and the result has been dismissal, denial of opportunities or any other detriment.
Indirect sex discrimination - is applicable to men and women, but adversely affects a larger proportion of one sex than the other, e.g. a requirement to be above a certain height would be fulfilled by fewer women than men.
Victimisation – occurs when a person (the person victimised) is treated less favourably because they have given or are going to give evidence/information against the discriminator.
Who does the act cover?
The Act applies to women and men of any age, including children.
Anything else I need to know?
There are some legal exceptions to the act, these are:
- Genuine occupational qualification – exceptions occur where a man or woman is a ‘genuine occupational qualification’ for a job. For example, a female care assistant at a women’s refuge is an exception for reasons of decency or privacy.
- Positive action training for under-represented gender – providing training to a gender that is under-represented in a job is an exception. However, the selection of candidate should always be made on merit.
- Charitable provision – charities are exempt if they make charitable provision that benefits only one gender.
- Actions under statutory authority – employers are responsible for unlawful acts of discrimination carried out by their employees in the course of their employment. However, employers may not be liable if they can prove that they took reasonable steps to prevent such action.
Sex Discrimination Act (SDA) 1975 (Amendments): Effective from 1st October 2005
The following changes apply to all employers and providers of vocational training.
Additional changes are also applicable to certain providers of vocational training, specific employers and those people who appoint office holders. These changes can be found by visiting the acas website at www.acas.org.uk.
- Indirect sex discrimination – the definition will cover training and employment matters.
- Harassment and sexual harassment in employment and vocational training will be made illegal.
- The Act will prohibit discrimination against women on the grounds of pregnancy or maternity leave.
- Persons working overseas for a company in GB will benefit from extended protection.
- Change to an exception to the SDA where an employer could refuse to offer a specific job to a person who was intending to undergo, was undergoing or had undergone gender reassignment.
- Responsibilities of vocational training providers will be made clear and further protection will be provided to cover vocational guidance as well as unpaid work experience.
- A new 8-week time limit will be set for a respondent to address any questions asked by the aggrieved person, in relation to an alleged act of discrimination or harassment.
Employment Rights Act (ERA) 1996
The Employment Rights Act 1996 serves to ensure that certain terms and conditions must be set out in a single document; this can be a written “contract of employment” or a “statement of the main terms and conditions of employment”. The statement shall be given no later than two months after the beginning of the employment.
Obligatory Inclusions
The written terms and conditions will contain contractual and statutory rights. Contractual rights are negotiated between the employer and employee, or representative. Statutory rights are protected by law.
The following particulars should be included in all contracts or statements:
- Employer and employee name
- The date on which employment commenced and when continuous employment started
- Hours of work and any terms and conditions relating to this
- The place of work and employers’ address
- Remuneration rate and any other benefits
- Intervals at which remuneration is paid – weekly, monthly etc
- Holiday entitlement
- Employees job title and a description of their roles and responsibilities
- Period end date (if employment temporary)
- Sickness or injury, including any provision for sick pay
- Pensions and pension schemes
- The length of notice given by employee to terminate contract of employment
- Any collective agreements affecting the terms and conditions of employment
- Details governing where the is a requirement for the employee to work outside the UK for more than a month
- Disciplinary rules and procedure and grievance procedures.
Legal Exceptions
- Self-employed workers, some trainees and independent contractors
- People working outside the UK
- Employees working for less than a month.
Further information
A full list of all the particulars you will need to put into the contract or statement can be found at www.Aaskncvo.org.uk
Employment Equality (Sexual Orientation) Regulations 2003
Sexual orientation is defined as being sexually orientated towards persons of the same sex (this covers gay men and lesbians), the opposite sex (this covers heterosexual men and women) or both sexes (this covers bisexual men and women).
These regulations outlaw discrimination and harassment in employment and vocational training.
Types of Discrimination
Direct discrimination - occurs when an employee is treated less favourably than other people in similar relevant circumstances, because of their actual or perceived sexual orientation.
It is unlawful to:
- Decide not to employ someone
- Dismiss them
- Refuse to provide them with training
- Deny them promotion
- Give them adverse Terms and Conditions
- Deny them access to benefits available to individuals of a different sexual orientation because they are thought to be lesbian, gay, bisexual or heterosexual.
Example: In interview, the job applicant says she has a same sex partner. Although she has all the skills and competencies required of the job holder, the organisation decides not to offer her the job because she is lesbian.
Indirect discrimination - occurs where a provision, criterion or practice, which is not justifiable in achieving a legitimate aim, puts people of a particular sexual orientation at a disadvantage.
Victimisation – occurs when a person (the person victimised) is treated less favourably because they have given or are going to give evidence/information against the discriminator.
Example: an employee gives evidence for a colleague. On applying for promotion, the employee is rejected even though the employee is able to demonstrate that they have the relevant skills and experience to carry out the job. Her manager labels him/her as a ‘troublemaker’ and thus not be prosecuted.
Harassment – occurs when an intimidating, hostile, humiliating or offensive environment is created against a person.
Example: An employee has a son who is gay. Other colleagues within the workplace joke about gay people as well as teasing the employee about his/her son’s sexual orientation.
Anything else I should know?
An employer that has made a mistake about an individual’s sexuality can still be held responsible to have directly discriminated. Employers will also be found guilty of discrimination if an individual is treated less favourable because of a third party’s attitude. For example, an employer will be found guilty of discrimination if you do not appoint someone who is gay because you think service users may not like it.
These regulations are subject to amendments from 5th December 2005, when the Civil Partnership Act comes into force. The Act will give same sex-couples the opportunity to form a civil partnership and gain legal recognition of their relationship.
The Rehabilitation of Offenders Act 1974
The Rehabilitation of Offenders Act 1974 serves to protect individuals from discrimination due to past convictions.
An individual who is convicted of a criminal offence can be rehabilitated over a defined period of time, through the conviction becoming ‘spent’ which allows the individual to be treated for most purposes as thought the conviction had never occurred.
Convictions involving custodial sentences of over 30 months cannot become ‘spent’ for some professions and in some areas of employment the law requires disclosure of all convictions including those deemed to be spent.
Some facts
- A rehabilitated person is entitled to ignore spent convictions in reply to questions about his past
- An employer cannot refuse to employ a person, or dismiss them, on the basis of a spent conviction
Further details can be found at www.homeoffice.gov.uk
General Exceptions
There are some exceptions whereby spent convictions need to be declared. These are as follows:
- A job involving a position of trust – for assessment purposes an employer is permitted to ask a candidate to disclose all convictions (higher level disclosure), whether ‘spent’ or not.
Professional jobs within this category include medical, dentistry, nursing, law, accountancy, police, prison and probation services.
- Positions involving working with children
- Positions involving working with vulnerable adults – an employer is entitled to ask the candidate to disclose information regarding spent and unspent convictions.
Age Discrimination
Age Discrimination in Employment Act 1967
The act provides protection to persons over the age of 40 years from employment discrimination based on age. These protections apply to both employees and job applicants.
The act makes it unlawful to discriminate against an individual based on their age relating to any terms, conditions or opportunity of employment. This covers promotion, hiring, benefits, compensation, firing, training, etc.
The act affects all employers whom employ 20 or more employees; this includes local governments and employment agencies.
What’s New
Towards the end of 2006 the Government will implement anti-age discrimination regulations under the European Employment Directive. The regulations will serve to make unlawful the unfavorable treatment of employees by direct or indirect discrimination on the grounds of age.
The legislation will cover private and public sectors.
The age of retirement will be unlawful, unless objectively justified. The Government is currently undertaking research on whether the legislation should provide for employers to exceptionally be able to justify mandatory retirement ages if particular circumstances make it appropriate and necessary. They are also seeking comments on a default retirement age of 70. Beyond this point, employers could require employees to retire without having to justify their decision.
For further up-to-date information log onto www.agepositive.gov.uk
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