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Equality matters
11 September 2009
Recent adjustments to discrimination legislation may have an
impact on the management of care homes.
The Equality Bill brings together around 40 years of
discrimination legislation, nine statutes and over 100 statutory
instruments. There will be a single statute making it unlawful to
discriminate for any of the ‘protected characteristics’, i.e. race,
sex, marital status, pregnancy, gender re-assignment, disability,
religion or belief, sexual orientation and age. The rules for each
type of discrimination will be broadly the same.
However, the Government has taken the opportunity to make some
apparently minor adjustments to discrimination legislation, and we
take a look at how these might impact on the management of care
homes.
Discrimination by association
This means discrimination because of someone else’s sex, race
etc. Suppose, for example, an employee insists that special prayer
facilities are provided for residents of a particular religion and
is disciplined for persisting with that view. The employee may
claim that they have been unlawfully disciplined because of that
resident’s religion. The same may be true where a care home worker
persists with arguments about treatment of disabled or elderly
residents.
Under current legislation, some of the protected characteristics
(sex, disability, marital status, pregnancy, age and gender
reassignment) must be held by the individual who is bringing the
claim – apparently, therefore, excluding discrimination by
association from the ambit of the legislation. For others (race,
sexual orientation and religion or belief) the characteristics may
be held by a person with whom the claimant associates. Recently, a
mother successfully argued that she had been unlawfully
discriminated against when she was treated less favourably as a
result of her son’s disability. This case therefore allowed an
associative disability discrimination claim, notwithstanding the
current legislation.
The Bill redefines discrimination to include direct
discrimination and harassment by association because of sex,
disability, age and gender reassignment.
Parents and carers
During consultation on the Bill, consideration was given to
extending the discrimination protection to, amongst others, parents
and carers. The Bill has not introduced specific rights for parents
and carers although some protection may be given by the
redefinition of discrimination to prohibit associative
discrimination.
For example, if an employer treats employees who care for
elderly relatives less favourably than those who care for young
children, those employees could bring age discrimination claims
based on the age of the persons for whom they care.
Disability discrimination
The Bill proposes a number of changes to the disability
discrimination legislation.
It introduces a new form of unlawful discrimination –
‘discrimination arising from disability’ which is defined as
treatment that is detrimental to an employee because of disability,
whether or not it would have been detrimental for employees without
that disability. It is intended to cover the situation where an
employee is disciplined or dismissed because of long term absence
caused by a disability.
As with other forms of disability discrimination, less
favourable treatment does not amount to discrimination if it can be
justified as a proportionate means of achieving a legitimate
aim.
The Bill also makes ‘indirect discrimination’ on grounds of
disability unlawful. Indirect discrimination means applying a
provision, criterion or practice (e.g. a requirement for a
specified level of fitness or strength) which puts those with any
particular disability at a disadvantage compared to others (e.g.
where the disability affects fitness or strength) and which cannot
be objectively justified (e.g. if holders of certain jobs in a care
home need to be able to lift residents).
Positive action
Currently, employers are allowed to train or encourage
under-represented disadvantaged groups to apply for jobs but they
are not allowed to give preference to under-represented groups. If,
for example, a particular ethnic group is under-represented,
employers are allowed to focus training and encouragement to areas
where that ethnic group is concentrated. The Bill will allow
employers to recruit and promote an individual from an
under-represented group where that individual is ‘as qualified as’
someone not from that group. This provision could allow an employer
to select candidate A (say a woman or someone from a particular
ethnic origin) in preference to candidate B (a man or someone not
from that ethnic minority) where they have scored exactly the same
marks in a selection process (but not where candidate A has scored
less than candidate B).
We assume that it will be up to the employer to decide what
qualifications employees will need for a job – but this is far from
clear. Some commentators have suggested that employment tribunals
will be able to make that assessment. Until there is further
clarity, therefore, our advice to employers is not to rely on these
provisions.
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of aspects of the subject matter and does not provide comprehensive
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