| |
Current position |
Proposed under the Equality Bill |
|
Protected characteristics |
These are age; disability; gender reassignment; marriage and
civil partnership; pregnancy and maternity; race; religion or
belief; sex; and sexual orientation. |
The list will remain the same with some minor changes to the
definitions. |
| Direct
discrimination |
Treating an individual less favourably 'on grounds of' a
particular characteristic.
It is only possible to objectively justify direct discrimination
where the protected characteristic is age.
|
Treating an individual less favourably 'because of' a particular
characteristic - this is not intended to change the meaning.
It will still be possible to objectively justify direct age
discrimination.
See below for associative and perception-based direct
discrimination.
|
| Indirect
discrimination |
Applying a provision, criterion or practice (PCP) to all where
it puts members sharing one of the protected characteristic at a
particular disadvantage to others not sharing that characteristic.
There is no discrimination if the PCP can be objectively
justified.
Indirect discrimination does not apply to disability.
For all other protected characteristics except race, the
claimant must be disadvantaged by the PCP. For race, it is
sufficient if the claimant 'would' have been so disadvantaged.
|
Indirect discrimination is extended to cover disability
discrimination.
For all cases, it will be sufficient if the PCP 'would' put the
claimant at a disadvantage.
|
| Disability-related discrimination |
Treating an individual less favourably for a reason which
relates to the claimant’s disability and where that treatment
cannot be justified. |
This will be replaced with 'discrimination arising from
disability' being treatment which amounts to a detriment because of
the individual’s disability (which is known or ought reasonably to
have been known) where the treatment is not a proportionate means
of achieving a legitimate aim. |
| Reasonable adjustments |
Employers are under a duty to make reasonable adjustments where
a PCP (or the physical premises) places a disabled person at a
substantial disadvantage to prevent the PCP or physical feature
having that effect. |
This will be extended to include circumstances where a person
would be placed a substantial disadvantage without the employer
providing an auxiliary aid. |
| Harassment |
Subjecting an individual to unwanted conduct related to a
protected characteristic or (for sexual harassment) of a sexual
nature which has the purpose or effect of violating their dignity
or creating an intimidating, hostile, degrading, humiliating or
offensive environment.
Where the protected characteristic is sex, there is additional
protection where an individual has rejected or submitted to
particular conduct and is treated less favourably as a result.
Employers may also be liable, where the characteristic is sex,
for failing to prevent repeated harassment of employees by third
parties.
|
The definitions of harassment will be harmonised, including
extending the provisions on liability for third-party harassment to
other protected characteristics (except pregnancy and maternity or
marriage and civil partnership).
The additional protection for rejecting or submitting to conduct
will remain limited to where the protected characteristic is
sex.
See below for associative and perception-based harassment.
|
| Associative discrimination |
Under current legislation, the characteristics of sex,
disability, marital status, age pregnancy and gender reassignment
must be held by the claimant. However, for disability, case law has
held that the legislation must be interpreted to cover someone with
whom the claimant associates.
For race, sexual orientation, and religion or belief, the
characteristic may be of someone with whom the claimant
associates.
|
Direct discrimination and harassment will be prohibited based
on association in respect of race, sex, gender reassignment,
disability, sexual orientation, religion or belief and age. |
| Perceived discrimination |
Direct discrimination on the grounds of perceived race, sexual
orientation, religion or belief or age is prohibited.
For all other protected characteristics, the characteristic must
actual apply to the claimant.
|
Direct discrimination and harassment will be prohibited based
on a claimant’s perceived race, sex, gender reassignment,
disability, sexual orientation, religion or belief or age. |
| Positive action |
Employers can take proportionate measures to
train or encourage under-represented groups to apply for jobs.
|
Employers will be permitted (but are not required) to take
under-representation of particular groups into account when
selecting between two equally-qualified candidates. |
| Multiple characteristics |
Tribunals can only consider each characteristic
separately. |
Combined claims for direct discrimination will be permitted in
respect of two protected characteristics (excluding
pregnancy/maternity and married/civil partner status). For example,
a claimant may argue that they have been directly discriminated
against because of their sex and their race, and not simply because
of one of those characteristics. |