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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 elses 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 residents 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 sons 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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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

Sarah Hooton

Sarah Hooton

Professional Development Lawyer

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