There is strong evidence of a clear link between low-paid and insecure jobs and several protected characteristics, in particular race, sex (or more accurately, motherhood) and disability. The UK has a comprehensive legal framework that protects workers from disadvantage because of age, disability, gender reassignment, married or civil partner status, pregnancy or maternity, race, religion or belief, sex or sexual orientation. All the discrimination laws were brought together into a single law – the Equality Act 2010. There are also specific rights in other laws that support progress on equality in the workplace such as the right to request flexible working and rights to maternity, paternity, adoption and shared parental leave, as well as legal protections for temporary employees, agency workers and part-time workers.
Trade unions have long fought for equality and their memberships have become more diverse as the population and society have changed. TUC rules require affiliate unions to show a clear commitment to equality for all and to eliminating all forms of harassment, prejudice and unfair discrimination within their own structures and through all their activities. The TUC carries out equality audits of trade union membership, structures and collective bargaining activities every two years to check progress on equality.
Many unions have similar rules and equality checks in place.
Union reps have a key role to play in:
Note that the Acas Code of Practice on time off for trade union duties and activities says that collective bargaining activities for which paid time off must be given may include equality and diversity.
Some unions have trained and made provision in their rule books for workplace equality reps. Such reps can act as the ‘equality lens’ in the workplace, helping to raise awareness of equality issues in collective bargaining. They can also be a reassuring presence for colleagues who may face discrimination or harassment. Equality reps should negotiate with employers to gain recognition and facilities time even though they lack the specific statutory rights for paid time off that other specialist reps, like union learning reps and health and safety reps, are entitled to. Unions should emphasise the preventative role that such trained equality reps can play.
For example, they can help raise awareness of equality issues and ensure potential problems are spotted early and are dealt with effectively in the workplace, rather than through costly and time consuming legal cases. They can help develop collective policies and practices that will enable the organisation to realise all the other benefits of being an equal opportunities employer, such as having a more committed workforce, reduced turnover and reduced absenteeism, and a wider pool from which to recruit. If you have someone in your branch who is interested in training to be an equality rep, the TUC runs regular courses around the country and some unions have established their own training.
From 1 October 2010, the Equality Act 2010 replaced nine major pieces of legislation, including the Equal Pay Act 1970, Sex Discrimination Act 1975, Race Relations Act 1976, Disability Discrimination Act 1995, Religion or Belief Regulations 2003, Sexual Orientation Regulations 2003 and Age Regulations 2006. It made equality law simpler, harmonising protection and definitions across the different groups where appropriate. As well as combining the old laws, the Equality Act includes some new provisions aimed at strengthening protection and advancing equality of opportunity.
Unions in action
Research for the TUC by Nottingham University Business School found that, where employers actively involve trade unions on equality issues, equal opportunities policies are much less likely to be ‘empty shells’. For example, in such workplaces, recruitment and selection is more likely to be monitored and reviewed from an equality perspective and special procedures are more likely to be in place to encourage disabled people into work and to help women returning to work after having children. A survey of TUC-trained equality reps found that the amount of time equality reps get to spend on their duties has a corresponding impact on how effective they believe their efforts are in the workplace. However, more than a third of equality reps feel they are not given nearly enough time to do the things their role requires them to do.
The Equality Act 2010 protects people from discrimination because of age, disability, gender reassignment, married or civil partner status, pregnancy or maternity, race, religion or belief, sex and sexual orientation.
A person must not be treated less favourably than someone else is or would be treated in a similar situation because of one of the protected characteristics. For example, if a Black worker fails to get a promotion when white colleagues with similar skills and experience and performance scores are promoted, this may suggest direct race discrimination. Or if a lesbian is discouraged from bringing her partner to a work social event when partners of heterosexual workers are invited, this may suggest direct sexual orientation discrimination. Direct discrimination claims can also be brought by people who have been treated less favourably because they associate with someone who has one of the protected characteristics. For example, a mother of a disabled child could bring a direct disability discrimination claim if she was treated less favourably and denied time off to care for her child when parents of non-disabled children had been granted time off in similar circumstances. Claims may also be brought by those who are wrongly perceived to have one of the protected characteristics and are unfairly treated because of it, for example if a straight man is perceived to be gay by his colleagues and they refuse to allow him to get changed in the communal changing area with them.
If direct discrimination is found, an employer has no defence and cannot justify their actions – except if the case involves direct age discrimination. Employers are allowed to treat people differently at work because of age as long as they can show that they are doing this for a good reason based on social policy. For example, if a 16-year-old is refused a job because it involves using dangerous machinery, the employer may be able to show that their minimum age requirement protects the health and safety of young workers, which is a legitimate social policy aim.
Even if the employer has a good social policy justification for their age-discriminatory policy, they must still act proportionately (that is, reasonably). They are likely to break the law if they had another reasonable, less discriminatory option available to them.
Trade unions can play an important role challenging employers to show that their age discriminatory policies really are justified. Only a tiny minority of tribunal claims based on age discrimination ever succeed. The time to challenge employers over age discrimination is when the policy is being drawn up.
Indirect discrimination occurs when an employer has a provision, criterion or practice that appears to treat everyone the same, but which puts people who share a particular protected characteristic at a disadvantage. For example, a requirement for everyone to work a rotating shift pattern may disadvantage more women than men in the workforce, as women are more likely to have primary care responsibilities for young children and find it harder to meet that requirement, so this could be indirect sex discrimination. It is not possible to claim indirect pregnancy or maternity discrimination. However, in practice, a policy that impacts less favourably on pregnant women or women on maternity leave is also likely to be indirect sex discrimination.
An employer can defend an indirect discrimination claim by showing that the provision, criterion or practice (eg the requirement to work a rotating shift pattern) is a proportionate means of achieving a legitimate aim. The employer would have to show that the rotating shift pattern was appropriate and necessary for it to meet a business need such as providing 24/7 cover and that there was no less discriminatory way of it achieving that aim. If it could be shown that there was another feasible way of the business achieving 24/7 cover without requiring all employees to do the rotating shift pattern, then the employer’s defence would be unlikely to succeed.
If a woman is treated unfavourably because of her pregnancy, or because she intends to take or is on maternity leave, this would be direct discrimination because of her pregnancy or maternity. She does not need to compare herself with a man, or with another woman who is not pregnant or on maternity leave. An employer has no defence to direct pregnancy discrimination. For example, refusing to give a job to a pregnant woman or retracting a job offer from a woman who the employer has just found out is pregnant would be discrimination. The employer could not justify their action, for example by claiming that they needed someone who was not going to be absent from work in the first year.
Harassment is when conduct in the workplace related to one of the protected characteristics has the purpose or the effect of violating a person’s dignity or creating an intimidating, hostile, or offensive environment for them. It is not necessary for the victim of the harassment to have the protected characteristic that the conduct relates to. For example, a young male Asian employee who is not a Muslim may be the butt of ‘jokes’ about being an Islamic terrorist by colleagues. He could claim harassment related to religion or belief even though he is not a Muslim. It is also not necessary for comments to be specifically targeted at an individual. For example, a woman working in a male-dominated environment who has to listen to women being talked about in a derogatory way could claim harassment if they created a hostile or offensive working environment for her, even though the comments were not about her or directed at her. In deciding whether or not there has been harassment in such a case, the perception of the victim must be considered, and all the circumstances of the case, and also whether or not it was reasonable for the victim to have that response to the comments she overheard.
Employers are liable for acts of harassment by their employees if they have failed to take all reasonable steps to prevent it happening, for example by failing to put in place adequate policies and provide training to staff that makes clear such behaviour will not be tolerated. Where harassment of an employee is caused by a third party such as a customer or client, the legal obligations on the employer are less clear, following the repeal of the third-party harassment provisions from the Equality Act 2010. The TUC recommends that you seek advice from your union in such circumstances.
The Equality Act 2010 also specifically outlaws sexual harassment, which it defines as unwanted conduct of a sexual nature. This can take many forms, including lewd or suggestive remarks, jokes about someone’s sex life, lewd calendars or screen savers, inappropriate touching, hugging or kissing, or demands for sexual favours. There can also be sexual harassment if a worker is penalised for rejecting a colleague’s advances.
A TUC-led campaign to stamp out sexual harassment at work, #This is not working, is calling for a new statutory duty for all employers to protect workers from sexual harassment, and for ways for workers to report their experiences anonymously to an external regulator, with real consequences for employers who break the law.
In 2020, the EHRC published important new guidance on ending all forms of harassment at work. The guidance is a valuable new resource for union reps. For example, it recommends that employers maintain centralised records, with enough information to be able to analyse trends, conduct staff surveys and listen to feedback. A section on detecting harassment emphasises that employers should be proactively watching out for the warning signs of harassment before any complaint is made, such as sickness absence, changes in behaviour, a dip in performance, comments in exit interviews or avoidance of a certain colleague.
Victimisation occurs when a worker is treated badly by their employer (or a prospective or previous employer) because they have made or supported a complaint or raised a grievance under the Equality Act, or because they are suspected of doing so. This legal provision is designed to ensure workers are not afraid of bringing complaints of discrimination under the Act and also that individuals such as trade union reps that help them with their complaints, or colleagues that provide information or evidence to support their claims, are not targeted as a result. An example of victimisation would be an employer providing a bad reference for an ex-employee because they had complained of discrimination. Note that the protection does not apply if a false allegation of discrimination or harassment was maliciously made or supported against an employer.
Like the old Equal Pay Act, the Equality Act includes a right to equal pay with someone of the opposite sex who is doing equal work in the same employment. Equal work means the same or similar work, work that is rated as equivalent under a job evaluation scheme, or work that is different but of equal value in terms of the level of skill, responsibility or effort that it requires. It is often the case, given the structure of the labour market, the ongoing gender pay gap and the undervaluation of the kind of work that women do, that it is women who are paid less than men despite doing equal work to them. An employer can defend an equal pay claim if there is a material reason for the difference in pay that is not related to the sex of the employees, for example if a man is paid more than a woman doing equal work in the same company but this is because he works in London and she does not and his higher pay reflects the higher living costs in London.
It is important to remember that the reason an employer gives for the difference in pay between a man and woman must not discriminate either directly or indirectly because of sex. For example, if the employer said a woman was paid less than a man because she had less service, this may be indirect sex discrimination, as women will often find it harder to acquire long service, as they are more likely to have breaks from the labour market to care for children. The employer would have to show that rewarding service this way was a proportionate means of achieving a legitimate aim. It may find this harder to do where there are very long service-related pay scales as, after an initial period in which length of service makes a real difference to ability to do the job, in most jobs the impact of length of service on performance tails off.
Equal pay audits
You should ask your employer to carry out an equal pay audit of the whole workforce to establish where there are differences in pay between men and women doing equal work and to take action to close any gaps in pay that are not justified. The statutory Equality and Human Rights Commission (EHRC) Code of Practice on Equal Pay recommends equal pay audits as the most effective way of ensuring gender equality in pay. If you are negotiating in the public sector then you can also argue that the equality duty on public bodies requires them to consider the need to do an equal pay audit.
The EHRC has guidance on its website for large organisations explaining what an equal pay audit should involve, as well as guidance for smaller organisations on how to carry out an equal pay review. Employment tribunals can now order an employer to conduct an equal pay audit. However, disappointingly, the tribunal’s power to order an employer to conduct an equal pay audit is only triggered once a woman has already won her equal pay claim. It is more likely that equal pay for work of equal value will be observed where there is a single transparent grading structure that is underpinned by a non-discriminatory analytical job evaluation scheme that applies to all jobs. If a job predominantly done by women is paid less than a job predominantly done by men although the jobs are of equal value, this would suggest indirect sex discrimination. Simply saying that there is a difference in pay because there are different pay structures and collective bargaining arrangements for the women and men would be insufficient justification for the difference. This is why employers and unions have sought to negotiate pay structures and bargaining arrangements that cover all staff to address equal pay.
Gender pay gap reporting
Since 2016, large private and voluntary sector employers with 250 or more employees have been legally required to publish data on the pay gap between their male and female employees, every year. This data must include: the difference in hourly earnings for all male and all female employees
The TUC campaigns for the reporting of pay gap data for other protected characteristics, in particular race and disability. TUC research has shown that BME workers are more than twice as likely to be in low-paid and insecure work. If your employer is in the public sector or providing public services, they have a legal public sector equality duty to have due regard for the need to “eliminate discrimination, advance equality of opportunity and foster good relations” across all the protected characteristics. You can encourage your employer to publish their pay gap data relating to protected characteristics such as race or disability to help demonstrate their compliance with this legal duty.
Pay secrecy clauses in contracts
The Equality Act makes confidentiality clauses in individuals’ contracts unenforceable where information about pay is shared among colleagues to find out whether there has been discrimination in pay. This also applies to situations where the information was shared with trade union reps or officers. A TUC poll in January 2020 established that as many as one in five workers are banned from discussing their pay with colleagues
The EHRC checklist, Equal Pay: how fair is my pay system? gives the following advice to employers:
1. Make sure you understand equality law and pay and remember that, as well as equal pay claims that cover sex discrimination in pay, discrimination claims can be brought on the basis of other protected characteristics. And remember pensions are included in pay.
2. Make sure the pay system is transparent. Transparency means everyone (managers, employees and trade unions) should understand the pay system.
3. Have one pay system for all employees.
4. Keep your pay system simple as this will mean it’s easier to understand and more likely to be transparent and objective.
5. Base your pay structure on an analytical job evaluation scheme and re-evaluate regularly.
6. Equality impact assess any proposed changes to your pay system. You should analyse the expected outcomes of the change to determine whether it is going to have a disparate impact on one gender or ethnic group, those with disabilities or those in different age groups. This is a legal requirement under the equality duty in the public sector.
7. Limit local managerial discretion over all elements of the pay package. The more discretion, the greater the risk of anomalies. You should also monitor the impact of managerial decisions, especially where these affect performance-related elements of the pay package.
8. Check salaries on entry to the organisation and on entry to grades. If men are starting on higher salaries than women, or white employees on higher salaries than Afro- Caribbean employees, then you may be importing discrimination into your pay system. Your responsibility is to provide equal pay, not match previous salaries.
9. Check rates of progression within and through grades.
10. Carry out regular checks to ensure that the various elements of your pay package still reward what they are intended to reward. Bonuses should fluctuate with performance. Market supplements should be paid only if you can demonstrate recruitment and retention difficulties.
As a union rep, you should encourage openness about pay and you can remind members and your employer that the law supports the principle of transparency. Anyone who is disciplined for sharing or seeking information about pay to find out if there has been discrimination can claim victimisation under the
Equality Act 2010. Note that the EHRC Code of Practice on Equal Pay also states that where there is a lack of pay transparency, there is a high risk that discrimination will be found. Remember that if your employer recognises your union where you work, as a union rep you have separate legal rights to information about pay for the purpose of collective bargaining, supported by an Acas Code of Practice on disclosure of information to trade unions for collective bargaining purposes, available to download from the Acas website. This can include information about the distribution of pay awards across staff groups.
Definitions of disability in the Equality Act 2010
A person is considered disabled under the Equality Act if they have a physical or mental impairment that substantially affects their ability to do normal day-to-day activities over the long term. The effect of an impairment is long term if it has lasted or is likely to last for at least 12 months, or if it is likely to last for the rest of the life of the person affected. The Act makes clear that cancer, HIV infection and multiple sclerosis are considered disabilities. Progressive conditions that do not currently have a substantial adverse effect but are likely to have that result in time are also covered.
Someone is also protected if they are mistakenly believed to have a disability. This includes someone who is mistakenly believed to have a progressive condition covered by the Act. For example, the Act would protect someone with a mild health condition who is turned down for a job because the employer is worried that their condition might deteriorate and affect their ability to do the job in the future.
Someone is also protected if they have had a disability in the past but have since recovered. For example, someone who suffered from depression for four years but has since recovered would be protected if an employer decides not to offer them a job out of fear that their depression might return.
Social model of disability
European Union law requires UK employers to follow something known as the social model of disability. The TUC has promoted this social model for several years. It emphasises the social purpose behind laws supporting the rights of disabled people, which is the removal of barriers to their full participation at work caused by the environment and by stereotypical attitudes to disability.
TUC guidance based on the social model approach encourages trade unions to include disabled people in the trade union movement and to negotiate with employers to remove barriers to inclusion rather than focusing on the medical diagnosis of an individual worker and whether they are impaired enough to qualify as a disabled person under the Equality Act, which might then lead to some adjustment of normal policy or practice. In future, the role of trade unions in ensuring that UK employers continue to follow the social model of disability will be even more important as a result of the UK’s decision to leave the EU.
As a union rep, you should encourage openness about pay and you can remind members and your employer that the law supports the principle of transparency. Anyone who is disciplined for sharing or seeking information about pay to find out if there has been discrimination can claim victimisation under the Equality Act 2010. Note that the EHRC Code of Practice on Equal Pay also states that where there is a lack of pay transparency, there is a high risk that discrimination will be found. Remember that if your employer recognises your union where you work, as a union rep you have separate legal rights to information about pay for the purpose of collective bargaining, supported by an Acas Code of Practice on disclosure of information to trade unions for collective bargaining purposes, available to download from the Acas website. This can include information about the distribution of pay awards across staff groups.
The duty to make reasonable adjustments for a disabled person
Under the Equality Act, an employer has a duty to make reasonable adjustments to things like their premises, equipment, job tasks or employment policies to remove anything that places a disabled person at a substantial disadvantage when compared with someone without their disability. This recognises that often for disabled people, things have to be done differently to give them the same access and opportunities to work as others have.
Employers are often good at considering changes to physical premises or equipment but may not think about some of the other less visible things that could be considered a reasonable adjustment. Examples include allowing more time for completion of a written test for a dyslexic candidate, allowing flexible working so that a disabled person does not have to travel during rush hour or work at a time of day when their impairment may be at its worst, accepting lower levels of output from a disabled worker, or transferring some tasks from the disabled worker to another person.
The reasonable adjustment duty applies only to people who can show they meet the definition of disability under the Act. It does not apply if the employer did not know and could not reasonably be expected to know that the person had a disability. The employer cannot ask the disabled person to meet the costs of any adjustments. However, funding may be available to employers under Department for Work and Pensions (DWP) Access to Work scheme to help with any adjustments that it is not reasonable to expect the employer to pay for.
There is also the Access to Work Mental Health Support Service, provided by disability support charity Remploy. If an adjustment to a practice at work is reasonable, the law says that the employer must make it.
Discrimination arising from disability
If a disabled person is treated unfavourably because of something arising out of their disability, then this could give rise to a complaint of discrimination. This applies only where the employer knows or could be reasonably expected to know that the person is disabled. For example, if a disabled worker was absent from work because of their disability for a number of months and the employer knows of their disability but nevertheless disciplines them in accordance with the company’s sickness absence policy, then they could complain of ‘discrimination arising from disability’.
The law allows the employer to justify the treatment that has led to the discrimination complaint, for example in the situation of sickness absence, if they can show that the sickness absence policy and the disciplining of the worker was a proportionate means of achieving a legitimate aim. However, to be allowed to justify their actions in this way without breaking equality laws, the employer must first have considered whether any reasonable adjustment could have been made to the policy for the disabled worker, such as not triggering the disciplinary procedure until a later stage. One way of ensuring that disabled workers in your workplace are treated fairly in terms of sickness absence is to negotiate a policy of disability leave that would allow disabled workers some absence from work that is related to their disability and for this absence to be recorded separately from sickness absence. You can also try to negotiate for some or all of this disability leave to be disregarded when selecting for redundancy. The TUC has produced guidance for union reps on sickness absence and disability discrimination.
Of the millions of disabled people living in Britain today, only a very small percentage use wheelchairs, or assistance dogs, or are otherwise identiﬁed by visible evidence of impairment. As a result, many people who are entitled to legal protection against discrimination and to reasonable adjustments are discouraged from coming forward to seek such adjustments from the employer. Often, disabled people themselves do not recognise that their condition, that means they need support or adjustments to enable them to function the same as their colleagues, may count as a disability in the law. Sometimes, especially with mental health conditions, those affected are afraid that the stigma associated with mental health means they would lose their job and have great difficulty ﬁnding another. Sadly, all too often this is still the case, but unions can – and often do – make a major difference in helping workers to realise they have rights under the Equality Act and in ensuring managers receive the appropriate training to understand hidden disabilities and make appropriate adjustments. The TUC has produced guidance ‘You don’t look disabled’ for reps, including real-life case studies of workers with conditions like autism, diabetes, dyslexia, ME and depression, which is available on the TUC website.
The Equality Act 2010 bans employers from asking questions about candidates’ health before a job offer is made. This includes occupational health questionnaires and questions about a candidate’s previous sickness absence record before a job offer is made. However, there are some exceptions to this. An employer can ask: whether a candidate needs a reasonable adjustment to the application or interview process
Checking recruitment procedures
It is worth keeping a check on your employer’s recruitment procedures to make sure they are complying with the ban on pre-employment health questions. If they are asking questions about health before offering a job, then they must stop unless the questioning fits into one of the categories given above. Remind them that they could face action by the EHRC, which has power to enforce the ban on such questions, and that they risk facing a disability discrimination claim if they ask such questions and a well-qualified disabled applicant then does not progress through the recruitment process. They may also face a discrimination claim if they ask health questions after a job offer has been made and the offer is subsequently withdrawn from a disabled person. Remember, as well, that they should consider a disabled person’s suitability for a job once any reasonable adjustments are made, not prior to such adjustments being made. If you work for an employer in the public sector or that is providing publicly funded services, the public sector equality duty is worth remembering. Your employer should be regularly reviewing its recruitment practices to help eliminate discrimination, advance equality of opportunity and foster good relations across the different protected characteristics.
The Equality Act allows organisations to do things differently or to target initiatives at particular groups if it is a proportionate way of them addressing under-representation, a disadvantage they reasonably think the group has suffered, or a different need they have. For example, an employer may decide to establish a mentoring scheme to help BME employees to progress into management roles where they have been underrepresented, or an employer in a male-dominated industry may decide to hold women-only recruitment events to encourage more women to apply for jobs. However, there are limits to positive action and people cannot be guaranteed a fast-track through recruitment procedures or appointed to jobs simply because they have a protected characteristic.
The Equality Act also allows employers in a tie-break situation with two candidates who are “as qualified as each other” to appoint the candidate with a protected characteristic that is underrepresented or has a disadvantage associated with it if it is seeking to address that underrepresentation or disadvantage and making such an appointment is a proportionate way of doing that. However, the employer must not have a general policy of treating people with that protected characteristic more favourably in all recruitment and promotion situations. The employer must always carefully consider the merits of both candidates in a tiebreak situation before making such a decision.
People can be appointed to jobs because they have a particular protected characteristic if there is an occupational requirement that someone with that characteristic must do the job. In practice, this will apply to a very narrow range of situations, for example a film company may require a Black actor for a film about Martin Luther King, or an organisation campaigning for LGBT+ rights could require an LGBT+ person when recruiting for the chief executive position.
There are a range of other specific exceptions in the Equality Act that apply to employment. For example:
Unions in action
Reasonable adjustments passports
In 2018, the TUC and the GMB produced a model Reasonable Adjustments Employer Agreement, along with a template reasonable adjustments ‘passport’ to record the agreed adjustments. Once adjustments have been agreed, the passport is signed by everyone concerned. The document can then be kept under review, eliminating the need for disabled people to explain their requirements every time a new line manager or role changes at their organisation. There is more information on the TUC website.
Since the Default Retirement Age of 65 was phased out by 30 September 2011, an employer can operate a policy of retiring workers at a fixed age only if they can show that it is objectively justified as a proportionate means of achieving a legitimate aim.
It is hard to justify a blanket policy of having a fixed retirement age for a whole workforce. It may in some circumstances be possible to justify a fixed retirement age for a particular job, for example where there is strong evidence of declining capability with age and there are health and safety concerns (although even then, there may be less discriminatory alternatives, as regular medical assessments are likely to be in place for jobs of this kind, so the decision to retire may have to consider the results of such an assessment, rather than be based solely on age). A worker aged 65 or over, like workers of other ages, can claim unfair dismissal if the employer dismisses them for a reason that is not fair or if they fail to follow the correct process. They may also be able to claim age discrimination if it appears their dismissal was because of their age, either directly or indirectly.
Consider negotiating a flexible retirement policy to provide more retirement options, for example by allowing for a phased reduction in working hours or allowing transfer to a different role within the organisation before retirement. Surveys suggest that most older workers would stay in work longer if they could work flexibly. Talk to members and find out what they want. All employees with at least 26 weeks’ service have the legal right to ask to work flexibly. This can be a useful right for employees who are approaching retirement and want to change their working pattern or reduce their working hours.
Operating without a compulsory retirement age
Many employers have recognised the beneﬁts of retaining the knowledge, experience and skills of older workers and encouraging a gradual transition to retirement so there is an effective handover.
It is against the law for employers to force individuals to retire at 65 or any other age unless they have a ﬁxed retirement age policy that they can objectively justify.
Since April 2011, public bodies when carrying out their public functions have had to pay ‘due regard’ to the need to tackle unlawful discrimination and harassment, advance equality of opportunity and foster good relations with people of eight protected characteristics – age, disability, gender, gender reassignment, pregnancy and maternity, race, religion or belief and sexual orientation. In Scotland, public bodies (including the Scottish government, NHS and local authorities) must also consider how to reduce poverty and inequality when making decisions. This is the ‘socio-economic duty’ found in the Equality Act, which the government in Westminster has never enacted into law. In Scotland it is called the ‘Fairer Scotland’ Duty.
What is a public body?
The duty applies to public authorities that are listed in the Equality Act (this includes councils, schools, NHS trusts, police forces, fire services, government departments etc.). It also applies to any organisation that carries out a public function. This means it applies to voluntary or private sector providers of public services, too, when they are carrying out that public function.
What does ‘due regard’ mean?
To show a public body has paid due regard to equality, it should be able to produce evidence that it has considered the impact on different groups of their current and proposed policies. The best way is through an equality impact assessment in which the expected impact on different groups is analysed and documented. Without such an assessment, the public body will be unable to demonstrate that they have complied with the duty.
In Scotland and Wales (but not England) equality impact assessments are legally required. If there is a potential negative impact on a group, the public body should consider removing the policy or changing its plans. If it feels the policy is necessary, it should consider what steps it can take to mitigate the disproportionate impact. In addition, if it’s likely that individual indirect discrimination claims could result from the policy and the public body intends to continue with it, then it would need to consider whether it can justify it as a proportionate means of achieving a legitimate aim.
What can unions do?
Ask whether and how the public body has assessed impact and to see the results. If the policy being considered concerns employment, then ideally the public body will have consulted the union during the process of assessing impact. You may be able to produce additional or alternative evidence from your members of actual or anticipated impact. If a public body intends to continue with a policy that is likely to have a negative impact on a particular group, ask how it will mitigate that impact. If it is likely that its proposals could result in individual indirect discrimination claims, then also ask how it can objectively justify what it is doing.
On a more general level, you should press the public body to put in place good monitoring procedures, so evidence can be gathered to inform impact assessments and to highlight where the public body should be taking action to advance equality of opportunity. There should be training for those making policy decisions in the organisation to ensure they understand the requirements of the duty and the responsibilities they have to pay due regard to equality. You should seek to get union participation in any consultation activities on how the public body intends to fulfil the equality duty and encourage members from particular groups to participate. The equality duty has been especially important during the coronavirus (Covid-19) pandemic, as evidence has accumulated that the pandemic has affected protected groups, in particular BME workers, disproportionately. The EHRC has guidance for employers on avoiding discrimination in their responses to the pandemic. You can find it on their website and use it to hold your employer to account.
Specific duties on public bodies
Public authorities that are listed in the Equality Act 2010 have some specific duties to help them comply with the Public Sector Equality Duty. Those that are Great Britain-wide or in England must:
Scottish and Welsh public authorities have different specific duties which are more detailed than the above. The EHRC website has guidance for public authorities on the PSED and the various specific duties, which reps will find helpful too.
The Equality and Human Rights Commission (EHRC)
The Equality and Human Rights Commission has responsibility under the Equality Act 2006 for compliance and enforcement of discrimination law. It was formed from the amalgamation of the Commission for Racial Equality, the Disability Rights Commission and the Equal Opportunities Commission and given responsibility for all discrimination law and human rights.
It has produced the statutory Codes of Practice for the Equality Act 2010, which employment tribunals can take into consideration when hearing a claim, and a range of excellent non-statutory guidance on the law to help employers and workers understand how the law applies in practice. There is also guidance for speciﬁc sectors such as education.
The EHRC has some unique enforcement powers, including speciﬁc powers to enforce the ban on preemployment health questions and the public sector equality duty.
Good equality practice in the workplace
Make sure your employer has an equal opportunities policy in place that has a commitment to equal treatment, which at minimum should include all the protected characteristics covered by the Equality Act.
The TUC supports monitoring of sexuality but experience shows that without careful handling, many people refuse to respond to the question. We recommend that monitoring is done when:
The questionnaire should reassure people that information gathered will be stored in a safe way and will be used only for the purpose for which it was collected. The data must be gathered on an anonymous basis to avoid breaching data protection laws. As well as asking if employees are heterosexual, lesbian, gay, bisexual or trans, it is useful to ask a follow-up question about whether they are ‘out’ at work as this will provide a very useful indication of how comfortable people feel to be themselves in the work environment.
Monitoring for gender identity (trans) is controversial. Some transgender groups argue it should not be done, as most trans people will want to be identified in their new gender. It should be discussed first with ‘out’ trans members. If asked, a question about gender identity should be freestanding, not part of sexual orientation or gender questions. The question should ask “Is your present gender different from that you were assigned at birth?” and the possible answers should be “No/ Yes, for all purposes/ Yes, but not for all purposes/Prefer not to say.” There is detailed advice on monitoring gender identity on the EHRC website. Asking an independent third party organisation to carry out the monitoring can help gain trust in the process and boost response rates.
Where the number of respondents is very small, meaning that even though data is anonymised, individuals can still be identified, data protection laws are likely to be broken unless the information is collected with the participants’ clear, informed and freely given written consent. For all forms of monitoring, your employer must have a clear equal opportunities monitoring policy in place. The policy should explain what they will do with the data, including how they collect, use, store and share it, and how long it will be kept for. Best practice is to collect all data on a genuinely anonymous basis and to ensure that it is not identifiable. Data that cannot be traced back to identify a living person is not personal data, so data protection laws will not be triggered.
The word “trans” or “transgender” is widely used to include all people who believe that the gender that they were assigned at birth is wrong and who want to live in the gender with which they identify. While this transition may involve corrective surgery or hormone therapy, many trans people chose to live permanently in their acquired gender without any medical or surgical procedures. People who feel that their gender identity is different from the one they were given at birth are sometimes described as having “gender dysphoria”, but because different people feel it in different ways, not everyone with gender dysphoria will decide to have a permanent or full-time change of gender, or medical treatment. In addition, there are people who do not identify with either gender or who choose to identify with one gender but dress as another, either temporarily or permanently. Some of these people may identify as “non-binary”.
The important thing to remember is that the word “trans” covers a wide range of experiences and every trans person is different, so some trans people will describe themselves by another term such as “transgender” or “transsexual”. Other people may decide they do not fit into any category and could prefer to use another description such as “non-binary”. In addition, there are people who are born as “intersex”. They are not trans but often experience discrimination. Although the language you use is important, the individual themselves is in the best position to decide how they want to identify, which pronouns (she/he/him/her) they wish to be used and what they want to be called.
By adopting positive policies to support trans people in the workplace you will make it a better place for all those who have issues with their gender identity, regardless of whether they identify as trans or not. In addition to the Equality Act, the Gender Recognition Act 2004 enables trans people to acquire full legal equality in their acquired gender. Anyone who obtains a Gender Recognition Certificate is entitled to have legal documents changed to reflect their acquired gender, including their birth certificate. However, whether a person has a Gender Recognition Certificate is irrelevant in the workplace (except some rare exceptions over corporate insurance policies) and there is no reason for an employer to request one. A trans person is protected from discrimination regardless of whether they have a certificate. It is unlawful for employers to treat unfavourably people who are ‘proposing to undergo, undergoing or have undergone a process (or part of a process) of reassigning their sex’’.
The process of changing gender is slow and arduous, with significant consequences beyond the purely medical for the individual undergoing it. Union reps will need to be prepared to deal with these consequences in the workplace. Those undergoing treatment through the NHS will begin by receiving specialist medical advice and diagnosis and they will be expected to commit to the ‘real life test’ before hormones are prescribed. The real-life test is when the individual begins to live as a member of the new gender, and may have records changed to reflect this (such as their driving licence and passport). One year is the minimum recommended period for the real-life test; however, NHS patients are likely to be expected to have a minimum of two years and often more. Finally, for the individual intending, and able, to undergo surgery, they undergo corrective surgery to complete, physically, the transition. The timing of this varies according to local funding and waiting lists. The process can be very stressful, requiring support and sympathetic handling.
The TUC has given the following guidance to union reps:
TUC publications and information on equality issues
There are a number of TUC eNotes on equality topics:
Statutory Codes of Practice and range of guidance and information on equality available from Equality and Human Rights Commission
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