EQUALITY & DIVERSITY
LEGISLATION
SUMMARY
December 2007
CONTENTS
Page

Glossary of Terms
4

Summary of Key Legislation
7

The Sex Discrimination Act 1975
8

The Race Relations Act 1976
10

The Employment Equality (Religion or Belief) Regulations 2003
13

The Employment Equality (Sexual Orientation) Regulations 2003
14

The Employment Equality (Age) Regulations 2006
15

Discrimination in Relation to the SDA, RRA and
16
Employment Equality Regulations

The Disability Discrimination Act 1995
19

The Special Educational Needs and Disability Act 2001 (SENDA)
22

The Equal Pay Act 1970
23

The Protection From Harassment Act 1997
25

The Employment Rights Act 1996
26

The Employment Act 2002
27

Civil Partnership Act 2004
28

Northern Ireland Legislation
29

Equality and Human Rights Commission
32

Further References
33
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Important Note: while Pearn Kandola has made every effort to ensure that the
information presented in this booklet is accurate, it is not legal advice and should
not be taken as such. Pearn Kandola cannot, in any circumstances, accept
responsibility for any errors, omissions or actions taken as a result of reading this
information. This information is presented entirely without liability.
Copyright in these materials is owned by Pearn Kandola. All rights reserved. No part of
these materials, including the design and layout, may be reproduced or transmitted in any
form, by any means (electronic, photocopying, recording or otherwise) without the prior
written permission of Pearn Kandola.
Licence given by Pearn Kandola to load onto Northumbria University's Intranet.
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3
GLOSSARY OF TERMS
Direct Discrimination
Direct discrimination consists of treating a person less favourably than others are or would
be treated, on the grounds of race, sex, disability, religion or belief, and sexual
orientation. It includes instruction and pressure to discriminate, harassment, victimisation
and racial segregation. The law is not interested in the employer's motives. Provided that
a claimant puts forward facts which appear to support a claim of discrimination, a tribunal
will uphold the complaint unless the employer has a reasonable explanation. It is the
employer's responsibility to be familiar with the legislation.
Examples of Direct Discrimination
Three previous industrial tribunal decisions make it clear that the view that certain jobs
are 'men's jobs' and others are 'women's jobs' falls foul of the Sex Discrimination Act:
 A man applied for a job as a shirt examiner and was turned down (Box V Cleeve of
London, 15800/93);
 A woman applied for a job on a building site (Saunders v Kapil & Vija Corporation
36239/92);
 A man applied for a job as a cook (Sargent v Winter, 62070/92).
Indirect Discrimination
This includes practices which look fair but have discriminatory side effects, which may or
may not be intended. It applies when an apparently neutral provision, criterion or practice
disadvantages members of a specified group relative to others. Such discrimination is
unlawful unless the provision, criterion or practice can be objectively justified by a
legitimate aim, such as the requirements of the job. A tribunal will also consider whether
the means used is appropriate and necessary.
Examples of Indirect Discrimination



Setting an age bracket of 27-35 for entry to a post, making it more difficult for women
who were mature students to meet the requirement (Jones v University of Manchester,
1992).
Disciplining Muslim Asian workers for taking time off to celebrate a religious festival
(Axam and others v J H Walker Ltd, 1993/94, Case No 41161/92).
Refusing to allow a teacher to job share on her return from maternity leave (Clay v
The Governors, English Martyrs School, 52318/91.)
Harassment
Harassment of individuals related to their sex, race, disability, religion or belief, or sexual
orientation is regarded as a form of discrimination, and is therefore illegal. Harassment is
defined as:
“Unwanted conduct related to any of the grounds covered by the legislation which takes
place with the purpose or effect of violating the dignity of a person and/or creating an
intimidating, hostile, degrading, humiliating or offensive environment.”
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It is important to note that the courts are only interested in the impact of harassment on
the recipient – they disregard the intentions of the alleged perpetrator. For example, an
individual may regard remarks made to a colleague about their colour as “harmless
banter”, but if the colleague finds them offensive then legally this may constitute
harassment.
Employers are responsible for ensuring that the workplace is free of harassment.
Employers are liable for the behaviour of their employees unless they take reasonable
steps to prevent the behaviour occurring.
The courts also consider the workplace to extend beyond immediate working hours and
premises to include work related social events. This covers events such as office parties
and departmental drinks at the pub.
Victimisation
Victimisation occurs when an individual is adversely treated because they have made a
complaint of discrimination or harassment, or provided evidence in such a case. The
legislation protects individuals from victimisation, and employers are obliged to take
reasonable steps to prevent this occurring.
Positive Action
Where a particular group is underrepresented at work, the law allows employers to take
positive action. This involves giving groups of employees of one sex or particular racial
group either:
 Encouragement to apply for jobs in which they are under-represented; or
 Training to help them develop their potential and improve their chances in competing
for particular work.
This might include advertising vacancies through community organisations so as to attract
people with a particular ethnic minority background, for example. Or it could involve
training for a particular sex to help women or men reach standards for promotion.
Positive action is only allowed if within the previous 12 months it can be shown that
persons of that particular sex or racial group were considerably under-represented in the
job concerned, i.e. there were none or comparatively few.
It is also important to note that during the selection process applicants must all be judged
equally on job-related criteria. Employing someone because they come from a particular
group and regardless of whether the person has the relevant skills and qualifications is
positive discrimination and may well be unlawful. See below.
Positive Discrimination
Positive discrimination refers to the preferential treatment of members of a minority
group over members of a majority group (e.g. females over males, or Asians over Whites).
Preferential treatment for members of a minority group is generally unlawful.
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There are limited exceptions allowing discrimination in training, or encouragement to
apply for particular work in which members of the relevant sex are under-represented.
These lawful exceptions are often referred to as positive action (see above).
Vicarious Liability
This means that an employer may be legally responsible for discrimination and harassment
which occurs in the workplace, or in connection with a person's employment, unless it can
be shown 'reasonable steps' have been taken to reduce this liability. This liability covers
the conduct of individual employees and groups of employees.
Genuine Occupational Qualification (GOQ)
Exceptions to the law regarding discrimination are permissible in those cases where
someone’s gender, race, religion or belief, or sexual orientation is genuinely needed for
them to be able to carry out their duties. What employers may legitimately claim as a
GOQ for a job varies according to the characteristic being discriminated on. However, in
general the onus is on the employer to demonstrate that the characteristic concerned is a
genuine requirement for the job, crucial to the job’s performance, and that it is
proportionate to apply the requirement in the case in question. Further information is
given in the later section on Discrimination.
Equality
In




a workplace context, equality relates to:
Specific groups i.e. disabled, women, single parents, etc.
Treating people in a very similar or identical way
Identifying and removing discriminating practices
Minimising action in order to ensure compliance with the law.
Diversity
By contrast, diversity in a workplace setting involves:
 Valuing people’s differences both visible and non-visible. These differences will
include factors such as sex, age, background, race, disability, personality and work
style;
 Managing the needs and contributions of a diverse workforce;
 Positive harnessing and uncovering of all talent;
 A proactive positive strategy.
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SUMMARY OF KEY LEGISLATION
Overview of the Most Significant Equality Acts in the UK:

The Sex Discrimination Act (SDA) 1975 (as amended), makes it unlawful to discriminate
on grounds of sex or marriage.

The Race Relations Act (RRA) 1976 (as amended), makes it unlawful to discriminate on
grounds of colour, race, nationality, ethnic or national origin.

The Disability Discrimination Act (DDA) 1995 (as amended), makes it unlawful to
discriminate on grounds of disability.

The Employment Equality (Religion or Belief) Regulations 2003 makes it unlawful to
discriminate on grounds of religion or religious belief.

The Employment Equality (Sexual Orientation) Regulations 2003 makes it unlawful to
discriminate on grounds of sexual orientation.

The Special Educational Needs and Disability Act (SENDA) 2001 extends the DDA to
include the provision of education (including Higher Education). It makes it illegal to
discriminate in the provision of education on the grounds of a student’s disability.

The Equal Pay Act (EPA) 1970 (as amended), makes it unlawful to discriminate
between men and women in their contracts of employment including pay, holiday
entitlement, pension etc.

The Protection from Harassment Act 1997 makes harassment both a civil tort and
criminal offence.

The Employment Rights Act 1996 covers a broad range of employment issues with
regard to anti-discrimination.

The Employment Act 2002 makes it unlawful to discriminate on the grounds of family
leave.
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THE SEX DISCRIMINATION ACT 1975, 1986 (SDA)
The SDA covers virtually all employment practices and policies in which you could be
involved – before, during and following employment. This includes recruitment,
promotion, transfer, training, dismissal, redundancy and access to benefits, facilities and
services.
The SDA covers discrimination on the grounds of:
 Gender i.e. male or female;
 Marriage - under the SDA, it would be unlawful to treat a married person (either male
or female) less favourably than a single person;
 Pregnancy or maternity
 Gender reassignment (transexualism).
Gender Reassignment
Protection from discrimination for transsexuals was added to the Sex Discrimination Act in
1999.
The legislation prohibits discrimination on the grounds of gender reassignment where an
individual:
 Intends to undergo gender reassignment, i.e. formally records with a relevant medical
practitioner or qualified psychiatrist that he or she had an intention to achieve a new
sexual identity; or
 Is undergoing gender reassignment; or
 Has undergone gender reassignment, i.e. has achieved a permanent new sexual
identity.
Sexual and Sex-Related Harassment Legislation
Legislation to comply with the Equal Treatment Directive came into force on 5 October
2005. The changes introduced a definition of sexual harassment that incorporates both
sex-related harassment and sexual harassment.
'Sex-related harassment' is defined as 'where an unwanted conduct related to the sex of a
person occurs with the purpose or effect of violating the dignity of a person, and of
creating an intimidating, hostile, degrading, humiliating or offensive environment'.
'Sexual harassment' is defined as 'where any form of unwanted verbal, non-verbal or
physical conduct of a sexual nature occurs, with the purpose or effect of violating the
dignity of a person, in particular when creating an intimidating, hostile, degrading,
humiliating or offensive environment'.
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Implications
Under UK law, victims of harassment may seek an injunction to stop behaviour that has
caused distress and can seek damages.
If a victim of sexual harassment claims unfair dismissal or sex discrimination, the case will
be referred to an employment tribunal, and if an employee leaves his/her employment
because of sexual harassment, they may also be able to claim constructive dismissal.
The regulatory body for the sex discrimination legislation in the UK, excluding Northern
Ireland, is the Equality and Human Rights Commission.
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THE RACE RELATIONS ACT 1976 (RRA)
The RRA covers virtually all employment practices and policies, including recruitment,
promotion, transfer, training, dismissal, redundancy and access to benefits, facilities and
services.
It covers discrimination on the grounds of:
 Race;
 Colour;
 Nationality;
 Ethnic origin (groups with a long shared history and culture including Romany gypsies,
Sikhs, Jews);
 National origin. This is determined by the nationality of a person’s parents.
The Race Relations (Amendment) Act 2000
The new Act strengthens the 1976 Act in two main ways:
 It extends protection against racial discrimination by public authorities;
 It places a new, enforceable general duty on public authorities.
In order to comply with the general duty, listed authorities are required to have due
regard to the need to eliminate unlawful discrimination and to promote racial equality and
good race relations. In line with this they should take steps to ensure that their policies
and practices do not disadvantage any racial groups.
Although the general duty only applies to listed public bodies, where a public body makes
arrangements for a private or voluntary body to carry out certain functions, these
arrangements (e.g. the terms of the contract and how it is to be monitored and enforced)
should reflect its obligations under the general duty.
In addition to this general duty, some public authorities (including universities) will be
subject to certain specific duties. For example:
 Ethnic monitoring of the workforce (and student population in the case of universities)
 Monitoring the impact on racial equality of current policies.
 Consulting on proposed policies.
 Publishing the results of assessments.
Race Relations Act 1976 (RRA) Amendment Regulations 2003
The Race Relations Act 1976 (RRA) Amendment Regulations 2003 apply to unlawful
discrimination on the grounds of race or national or ethnic origin. The Regulations were
introduced to bring the Act to in line with European directives.
The main changes include:

A change to the burden of proof in employment tribunal proceedings related to
discrimination or harassment on the grounds of race or national or ethnic origin. The
burden of proof is now on the respondent (e.g. employer) to show that the
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complainant (e.g. employee) was not treated less favourably on the grounds of race or
ethnic or national origin (but not on the grounds of colour or nationality). This also
applies to indirect discrimination.

Previously, the RRA did not apply to the employment of a seafarer if they applied or
were engaged for that employment outside Great Britain. From 19 July 2003, (Seamen
Recruited Abroad) Order 2003 will reduce the scope of this exemption so that it will
only apply to a seafarer's pay (which includes retirement and death benefits) and to
discrimination against a person (e.g. an applicant for seafarer's job) on the grounds of
their nationality.

A definition of unlawful indirect discrimination on the grounds of race or national or
ethnic origin and provide that unlawful indirect discrimination on the grounds of race
or national origin or ethnic origin:
'indirect discrimination shall be taken to occur where an apparently neutral provision,
criterion or practice would put persons of a racial or ethnic origin at a particular
disadvantage compared with other persons, unless that provision, criterion or
practice is objectively justified by a legitimate aim and the means of achieving
that aim are appropriate and necessary.'

The RRA 1976 covers unlawful discrimination on the grounds of race, colour, national
or ethnic origin or nationality. The Race Discrimination Directive (2000/43/EC) only
covers unlawful discrimination on the grounds of race, national or ethnic origin but not
colour or nationality. Hence, the new definition above only applies to discrimination
on the grounds of race or national or ethnic origin. The 'old' definition of unlawful
indirect racial discrimination will continue to apply to discrimination on the grounds of
colour or nationality.

The Act also includes a statutory definition of racial harassment:
‘when an unwanted conduct related to racial or ethnic origin takes place with the
purpose or effect of violating the dignity of a person and of creating an
intimidating, hostile, degrading, humiliating or offensive environment.'

The law will now provide that unlawful discrimination on the grounds of race or
national or ethnic origin can occur after the end of the employment relationship.

A general definition of a genuine occupational requirement that applies to
discrimination on the grounds of race or national or ethnic origin is included. The
references to a particular type of job have been abolished and any job may now be
restricted to a racial group based on the relevant grounds - but only if there is a
genuine occupational requirement and it is used appropriately.
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
The dismissal of a person that constitutes unlawful discrimination on the grounds of
their race or ethnic or national origin will include constructive dismissal or the
termination of a fixed-term contract.

An employer must properly complete and return a questionnaire form or any other
similar form concerned with discrimination on the grounds of race or national or ethnic
origin within eight weeks after the date they received such a form.
Implications
There are two key implications:
 Vicarious liability of the employer. This means an employer may be legally responsible
for discrimination and harassment which occurs in the workplace, or in connection
with a person's employment, unless it can be shown 'reasonable steps' have been taken
to reduce this liability. This liability covers the conduct of individual employees and
groups of employees.

Legal redress. The victim can pursue their claim in a court of law.
The regulatory body for race relations legislation in the UK, excluding Northern Ireland, is
the Equality and Human Rights Commission.
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THE
EMPLOYMENT
EQUALITY
(RELIGION
OR
BELIEF)
REGULATIONS 2003
The Employment Equality (Religion or Belief) Regulations came into force on 2 December
2003. It extends across employment, self-employment, occupational and vocational
training.
The Regulations outlaw direct and indirect discrimination on the grounds of religion or
religious belief. This includes discrimination due to perceived religion as well as the
individual’s actual religion, and discrimination due to association with members of a
particular faith. The legislation covers belonging to a religion and religious practice.
Within the Regulations religion is defined broadly as “any religion, religious belief or
similar philosophical belief.” There is no specified list of religions that will be covered.
Instead it will be up to the courts and tribunals to decide what is a religion or belief. This
is likely to take into account factors such as collective worship, a clear belief system, and
a profound belief affecting a way of life or view of the world. Note that the intention is
that the Regulations should not extend to cover political beliefs.
Implications

Employers will have to consider issues such as diet, dress and religious observance.
Whilst it is not anticipated that employers will have to put specific arrangements in
place for these areas, they will have to avoid rules which discriminate either directly
or indirectly on the grounds of religion or belief.

By not granting leave for religious observance employers may not necessarily be
operating against the directive but they do need to manage requests carefully so as
not to be operating at a disadvantage to some groups or individuals.

It is hoped that more detailed practical guidance will be available in due course. In the
meantime employers should operate a consultative and fair approach to all religious
groups which do not work to the detriment of individuals, groups or the business.
At present there is no regulatory body responsible for combating discrimination on grounds
of religion or belief. The Government is considering establishing a single Equality body to
cover all areas of discrimination.
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THE
EMPLOYMENT
EQUALITY
(SEXUAL
ORIENTATION)
REGULATIONS 2003
The Employment Equality (Sexual Orientation) Regulations came into force on 1 December
2003. It extends across employment, self-employment, occupational and vocational
training.
The Regulations make it unlawful to discriminate against an individual, either directly or
indirectly, during employment and training on the basis of their sexual orientation. This
includes perceived sexual orientation as well as the individual’s actual sexual orientation;
for example, discriminating against a heterosexual man who is wrongly perceived as gay.
The legislation also outlaws discriminating against individuals on the grounds of the sexual
orientation of the people they associate with.
Implications

Company policy regarding occupational pension schemes need to be examined. When
the rules restrict benefits to opposite sex partners only this is likely to amount to
direct discrimination and be incompatible with the legislation.

Company harassment policies need to be updated to ensure employees are aware that
harassment on the grounds of sexual orientation is unlawful and classed as direct
discrimination.

The scope of this legislation includes pay and working conditions. The term pay
includes all types of remuneration such as group health private insurance. The
legislation therefore makes it unlawful to discriminate in relation to any compensation
and benefits policy.
At present there is no regulatory body responsible for combating discrimination on grounds
of sexual orientation. The Government is considering establishing a single Equality body to
cover all areas of discrimination – see section on forthcoming legislation, page 33.
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EMPLOYMENT EQUALITY (AGE) REGULATIONS 2006
Regulations in October 2006 outlaw direct and indirect discrimination in relation to job
applicants, workers and former workers on grounds of age.
The Regulations prohibit unjustified age discrimination in recruitment, employment and
vocational training.
They also require employers who wish to set the retirement age below the default age of
65, to justify it objectively.
Employers also have to consider an employee’s request to continue working beyond
retirement, and give written notification to employees at least six months in advance of
their intended retirement date.
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DISCRIMINATION
IN
RELATION
TO
THE
SDA,
RRA
AND
EMPLOYMENT EQUALITY REGULATIONS
As a general principle the legislation requires that employment decisions must be made on
the basis of merit rather than on an individual’s membership of a particular group. Making
decisions around selection, promotion, training and dismissal that discriminate favourably
or unfavourably against individuals on the grounds of sex, race, disability, religion or
sexual orientation is usually unlawful. There are, however, certain permitted exceptions
under the legislation, which are outlined below.
Discrimination on Grounds of Sex
Discrimination on grounds of sex is not unlawful where being of a particular sex (but not
marital status) is a Genuine Occupational Qualification (GOQ) for a job. A GOQ exists when
the essential nature of the job, or particular duties attached to the job, call for a member
of one sex, for example:
 Where the job is in a single sex establishment and requires certain jobs to be held by a
person of a particular sex.

Where the holder of the job provides personal service promoting their welfare or
education, and which can most effectively be done by one sex.

Where the job involves work outside the UK, in countries where laws and customs
prevent the job being done by one sex.
Where special treatment is afforded to women in connection with pregnancy or childbirth
(e.g. maternity leave) this is not unlawful discrimination against men.
Discrimination on Grounds of Race
Under the race legislation discrimination is permitted where there is a genuine
occupational need to restrict a job to a particular racial group. This permission differs
according to the type of racial characteristic being discriminated on.
Race, Ethnic or National Origin
Under the race regulations, a job may be restricted to individuals of a particular race,
ethnic or national origin where:
 The nature of the job, or the context in which it is carried out, requires the individual
to be of a particular race, ethnic or national origin

The benefits or employing an individual from a particular racial group outweighs the
effects of discriminating against other racial groups.
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It is also likely that in assessing cases where employers claim to have a genuine
occupational need, tribunals will want to see a legitimate objective established for the
discrimination.
Colour or Nationality
Exceptions to the law regarding discrimination on the basis of colour or nationality are
covered separately under the Race Relations Act. Under the RRA, an employer can claim
that colour or nationality is a Genuine Occupational Qualification (GOQ) for a job where:
 The job holder provides persons of that racial group with personal services promoting
their welfare (e.g. personal counselling) and this can be done most effectively by a
member of that racial group

There is a need to achieve authenticity in the job that requires someone from a
particular colour or nationality e.g. modelling for artistic work, acting in a play

The job involves working in a restaurant or bar serving food or drink from a particular
country or region, and the establishment wants to create a particular atmosphere. This
exception does NOT apply to private clubs or organisations’ canteens.
Discrimination on Grounds of Religion
Under the Employment Equality (Religion or Belief) Regulations it is permissible to
discriminate on grounds of religion or belief on two grounds:
General Genuine Occupational Requirement
This exception applies where:
 being of a particular religion or belief is a genuine requirement for a job;
 this requirement is crucial for the position in question, and;
 it is proportionate to apply this requirement in a particular case.
The General GOR is likely to apply only to those jobs involving religious or belief service,
observance or teaching a particular religion or belief - for example restricting the
appointment of a chaplain in the Armed Forces to Anglican ministers.
Religious Organisations General Occupational Requirement
Where an employer has “an ethos based on religion or belief”, it is permissible to
discriminate on grounds of religion or belief where:
 Being or a particular religion or belief is a genuine requirement for a job and;
 It is proportionate to apply this requirement in a particular case.
This is slightly broader than the General GOR as the employer is not required to show that
religion or belief is a decisive factor in the decision, though they must still demonstrate
that it is a requirement. Under this exemption a religious organisation may be able to
demonstrate that it is a genuine requirement that all staff, not just those involved directly
with religious service, should belong to the religion concerned.
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Discrimination on Grounds of Sexual Orientation
Under the Employment Equality (Sexual Orientation) Regulations it is permissible to
discriminate on grounds of sexual orientation on two grounds:
1) General Genuine Occupational Requirement
This exception applies where being of a particular sexual orientation is a genuine
requirement for a job, and this requirement is crucial for the position in question. For
example, it may be legitimate to specify that a post in a Middle Eastern country where gay
sex is criminalised is open only to heterosexual people.
2) Religious Organis ation Genuine Occupational Requirement
This exception applies specifically to employment for the purposes of an organised
religion. It allows employers to discriminate on the basis of sexual orientation:
 To comply with the doctrines of the religion e.g. appointment as a member of the
clergy, or;
 To avoid conflicting with the religious convictions of a significant number of the
religion’s followers, due to the nature of the job and its context.
Note that this exception does not apply to all employment which is of a religious character
- the nature and context of the job is critical. For example it may be legitimate to
discriminate against someone who is gay or lesbian and who has applied for a position as a
Christian counsellor; however, it is unlikely to apply had they applied for a position as a
church cleaner.
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THE DISABILITY DISCRIMINATION ACT 1995
Key Features

The DDA applies to the whole of the UK, including Northern Ireland in connection with
employment, the provision of goods, facilities, services and management of premises;
to make provision about the employment of disabled persons.

The legislation applies equally to those who become disabled in the course of
employment and to job applicants.

All employers are legally liable for discriminating against disabled persons in
recruitment, promotion, training, working conditions and dismissal.

Employers are able to justify less favourable treatment of a disabled person in
specified circumstances, such as lack of suitability.

This defence is subject to a duty on the employer to make reasonable adjustments to
working conditions or to the physical working environment where that would help
overcome the practical effects of a disability.

Industrial tribunals hear complaints of discrimination by reason of disability and are
able to award unlimited compensation.
Differences between this Legislati on and Other
Anti-discrimination Legislation

Under the Sex Discrimination and Race Relations Acts, it is prohibited to use race or
sex as a basis for making employment decisions.

The Act does not make consideration of a disability impermissible in decision making;
instead, it prohibits discrimination on the grounds of disability only where the
employer's decision is held to have been unreasonable. This takes into account any
duty on the employer to make a reasonable 'adjustment' to the working conditions or
environment of the disabled person
There is a duty of the employer to make reasonable adjustments such as:
 The duty arises when a disabled person is placed at a 'substantial disadvantage' as a
job applicant or as an employee, by selection arrangements or by any physical feature
of premises.

The duty is not owed to the disabled person unless they have notified the employer
that they may apply for the job.
Reasonable adjustment is relevant to the size and resources of the organisation.
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Meaning of Disabili ty

A person is disabled if s/he has a physical or mental impairment which has a
substantial and long-term adverse effect on his/her ability to carry out normal day-today activities'. 'Disability', therefore, has four main aspects:
there must be a 'physical or mental impairment';
the impairment must adversely affect 'ability to carry out normal day-to-day
activities';
that adverse effect must be substantial;
that adverse effect must be long term, i.e. it has lasted, or could reasonably be
expected to last, 12 months.

However, this also applies, to someone who is terminally ill and not expected to live
for as long as 12 months and to individuals with progressive illnesses.

Some illnesses are excluded from coverage of the Act, e.g. ‘psychopathic or antisocial
disorders and addictions'. This could include kleptomaniacs, pyromaniacs, paedophiles
and people with personality disorders.
Discrimination against Applicants and Employees
It is unlawful for an employer to discriminate against a disabled person:
 In the arrangements which are made for the purpose of determining to whom should
be offered employment
 In the terms on which a person is offered employment, or
 By refusing to offer, or deliberately not offering, a person employment.
Implications
It is unlawful for an employer to discriminate against a disabled person whom s/he
employs:
 In the terms of employment which s/he affords that person;
 In the opportunities which s/he affords that person for promotion, a transfer, training
or receiving any other benefit;
 By refusing to afford, or deliberately not affording that person, any such opportunity,
or;
 By dismissing, or subjecting that person to any other detriment.
The concept of employer liability is included in this Act.
Once a complainant establishes that the reason for the less favourable treatment 'relates'
to the disabled person's disability, the burden will shift to the employer to show that the
treatment is justified.
Circumstances in which Less Favourable Treatment is justified
Less favourable treatment is justified when, for example:
 The disabled person is unsuitable for the employment
 The nature of the disabled person's disability significantly impedes or would
significantly impede, the performance of any of his/her duties
©Pearn Kandola
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It is important to note that it is not 'reasonable' for the employer to 'believe' that even if
the adjustment had been made, it would still have been reasonable to discriminate.
Disability Discrimination Act 1995 (Amendment) Regulations 2003
The key changes included:
 Removing the small employer exemption (15 employees or less)

Explicitly prohibiting harassment and clarifying that no justification of direct
discrimination is possible

Extending the act to include office holder, partnerships, barristers, advocates,
qualification bodies, providers of practical work experience and the police.

Making it unlawful for the trustees of an occupational pension scheme to discriminate
against or harass a member or perspective member on the grounds of their disability

Requiring employers who lease their business premises to make reasonable
adjustments to the premises and providing the leaseholder with clear guidelines on
when consent must be given or can be withheld

Placing a legal obligation on service providers to consider making reasonable
adjustments to the services that they deliver so that disabled people can access them

Updating the prescribed questionnaire (which can be used by an employee who
considers that he or she may have been discriminated against by their employer) to
bring it into line with the above amendments.
The regulatory body for disability discrimination legislation in the UK, excluding Northern
Ireland, is the Equality and Human Rights Commission.
©Pearn Kandola
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21
SPECIAL
EDUCATIONAL
NEEDS
AND
DISABILITY
ACT
2001
(SENDA)
The Disability Discrimination Act 1995 has been extended to include educational provision
from September 2002, following the Special Educational Needs and Disability Act 2001.
The legislation protects disabled students in all areas of their studies.
Discrimination against disabled applicants or students can take place in either of two
ways. By:
 Treating them “less favourably” than other people, or
 Failing to make a “reasonable adjustment” when they are placed at a ‘substantial
disadvantage’ compared to other people for a reason relating to their disability.
Institutions are expected to take reasonable steps to find out if a person is disabled.
The Act applies to all the activities and facilities institutions provide wholly or mainly for
students, including, for example:
 All aspects of teaching and learning, including lectures, lab work, practicals, field
trips, work placements, etc;
 E-learning and distance learning;
 Examinations and assessments;
 Learning resources, including libraries, computer facilities, etc;
 Aspects of the physical environment such as buildings, landscaping and equipment;
 Welfare, counselling and other support services;
 Catering, residential and leisure facilities;
 Careers services.
A reasonable adjustment might be any action that helps to alleviate a substantial
disadvantage. It might involve:
 Changing standard institutional procedures;
 Adapting the curriculum, electronic or other materials, or modifying the delivery of
teaching;
 Providing additional services, such as a sign language interpreter or materials in
Braille;
 Training staff to work with disabled people and to provide appropriate adjustments;
 Altering the physical environment.
Under the Act, there is a responsibility to make anticipatory adjustments. This means that
institutions should consider what adjustments future disabled students or applicants may
need, and make them in advance.
©Pearn Kandola
(2007)
22
EQUAL PAY ACT 1970 (EQPA)
The Equal Pay Act 1970 (EQPA) makes it unlawful for employers to discriminate between
men and women in terms of their contracts of employment. It covers all contractual
benefits, not just pay, (including holiday entitlement, pension, child care benefits,
sickness benefits, car allowances etc) and applies to men and women.
In order to bring an equal pay claim an individual needs to identify a member of the
opposite sex whose pay can be compared with their own – a ‘comparator’. The comparator
must be employed in the same employment or service as the applicant – in some cases this
allows for comparisons to be made across employers, such as comparing jobs which have
been contracted out to those in the contracting organisation.
The Equal Pay Act provides three ways for an applicant to show that their work is of equal
value to that of the comparator. These are where the applicant and the comparator carry
out work which is:
1) “Like work" - in other words the applicant’s work must be the same or broadly similar
to the comparator’s.
2) "Work related as equivalent" under a job evaluation scheme. This compares the
demands made on the workers in areas such as skill and decision making.
3) "Work of equal value" on an independent assessment conducted by the tribunal
If the applicant can show that they perform work of equal value to that of their
comparator, and that an element of pay is less favourable, then the burden is on the
employer to prove that the difference is "genuinely due to a material difference which is
not the difference of sex".
If there is no significant difference in the proportions of men and women in the two groups
and if there are no other elements of gender discrimination in the pay, then the employer
only has to show that the reason for the difference is 'genuine' and 'material'.
However, where there is a significant difference in the proportion of men and women in
the applicant and comparator groups or there is gender discrimination in the pay, then the
employer will have to meet the higher test of 'objective justification' of the difference in
pay. This involves showing that the difference in pay:
 Corresponds to a 'real need';
 Is necessary and appropriate to that need;
 Is proportionate to that need.
©Pearn Kandola
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23
In each case, the requirement of 'genuineness' means that the reason put forward for the
difference in pay must be the actual reason. Examples of genuine material factor defences
which employers have used to defeat equal pay claims include skills shortages,
geographical differences, and different qualifications and experience
©Pearn Kandola
(2007)
24
PROTECTION FROM HARASSMENT ACT 1997 (PHA)
The Protection from Harassment Act came into force on 16th June 1997, making
harassment both a civil tort and a criminal offence. Victims of harassment are able to
seek an injunction to stop behaviour that has caused distress or may cause distress in the
future. The victim may seek damages for loss or injury suffered.
The legislation provides an additional remedy for those subjected at work or outside work
to racial or sexual harassment, or to harassment on the grounds of disability or sexual
orientation.
Whether the action was intended to cause offence or not does not matter – if the
employee being subjected to the behaviour finds it unacceptable and he or she feels
damaged or harmed by it, this constitutes potential harassment.
Harassment is normally characterised by more than one incident of unacceptable
behaviour, but in some circumstances just one instance may constitute harassment if it is
sufficiently serious.
The victim may bring proceedings in the ordinary courts against the harasser, seeking
damages for loss or injury suffered and most importantly an injunction to restrain future
harassment. The claim under the Protection from Harassment Act would be brought
against the harasser personally rather than against the employer. However, the victim is
also entitled to bring a claim against the employer under the relevant discrimination
statute in the industrial tribunal at the same time, if so wished.
©Pearn Kandola
(2007)
25
EMPLOYMENT RIGHTS ACT 1996 (ERA)
ERA covers a broad range of employment issues. In respect of anti-discrimination issues,
key points to note are:

Protection from suffering detriment in employment in the cases of:
Health and safety;
Trustees of occupational pension schemes;
Employee representatives;
Complaints to industrial tribunals.

Time off work to:
Attend public duties;
Attend antenatal care.

Suspension from work:
On maternity grounds;
On grounds of complaints to industrial tribunals.

Maternity rights, for example:
General right to maternity leave;
Commencement and duration of maternity leave period;
Notification requirements in relation to maternity leave;
Contractual rights to maternity leave and right to return to work (employees with at
least two years’ service);
Rights to return.

Unfair dismissal:
Right not to be unfairly dismissed;
Remedies for unfair dismissal.
©Pearn Kandola
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26
EMPLOYMENT ACT 2002
The Employment Act 2002 contains a wide ranging package of employment legislation.
The following areas are of particular relevance:
Paternity, Adoption and Maternity

The Act provides for an increased maternity leave entitlement. All employees are
entitled to take 26 weeks ordinary maternity leave. If the employee has a qualifying
period of service she is entitled to claim statutory maternity pay during this period and
also entitled to an additional 26 weeks of unpaid leave.

Employees who adopt a child are broadly entitled to the same statutory benefits as
those who are entitled to maternity leave.

Working parents, usually the father, and adoptive parents are entitled to 2 weeks paid
paternity leave. Leave must be taken within 8 weeks of the birth of the child.
Flexible Working

The Act also places a duty on employers to give serious consideration to requests of
parents with young children under 6 years old, or disabled children under 18, to work
flexible hours. Employers can only refuse a request for flexible hours where there is a
clear business reason for doing so. There are a standard set of criteria which must be
used in considering requests.
Fixed Term Employees

The Act provides for The Fixed-term Employees Regulations 2002, which implement an
EC Directive and prevents discrimination to fixed term employees in respect of pay and
pension provision.

The act places limits on the use of successive fixed-term contracts to ensure that
people are not on a string of contracts in what is really a permanent job, (while
allowing for sectoral variations)

The Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002
came into force on October 2002.
Equal Pay Questionnaire

All employees that are considering bringing an Equal Pay Act case are able to use a
new equal pay questionnaire
Minimum Statutory Disciplinary and Grievance Procedure
Since October 2004, all employers have been required to operate as a minimum a
statutory disciplinary and grievance procedure. All staff must be advised this in their
written statement of particulars of employment (employment contract).
©Pearn Kandola
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27
CIVIL PARTNERSHIP ACT 2004
This act came in to force on 5 December 2005. The act allows same sex couples to enter
in to a civil partnership entitling them to similar rights as married couples (e.g. survivors’
pension benefits, medical insurance for spouses).
©Pearn Kandola
(2007)
28
NORTHERN IRELAND LEGISLATION
The main pieces of legislation impacting on equality and diversity in Northern Ireland are
as follows:
 Asylum & Immigration Act 1996 (amended 1999)
 Disability Discrimination Act 1995
 Equal Pay Act (NI) 1970 (amended 1984)
 Equality (Disability etc) (NI) Order 2000
 Fair Employment & Treatment (NI) Order 1998
 Fair Employment (Monitoring) Regulations (NI) 1999 (as amended)
 Fair Employment (Specification of Public Authorities) Order (NI) 1989
 Harassment Act 1997
 Human Rights Act 1998
 Northern Ireland Act 1998 – Section 75
 Race Relations (NI) Order 1997
 Rehabilitation of Offenders (NI) Order 1978
 Sex Discrimination (NI) Order 1976
Northern Ireland's anti-discrimination legislation gives protection in a wide range of
situations including: employment or training, education, housing and accommodation,
when buying goods and services, or when using facilities or services, both private and
public.
Disability Discrimination Act, 1995 (DDA)
This Act makes it unlawful for employers to discriminate against disabled employees or
disabled job applicants in any aspect of employment.
This Act introduced new rights for disabled people in the areas of employment and access
to goods, facilities, services and premises. While the DDA extends to the whole of the
United Kingdom separate secondary legislation and Codes of Practice are required for
Northern Ireland. Schedule 8 to the Act sets out the modifications that apply to its
application in Northern Ireland.
Duty on Employers
The Act places a duty on employers to make reasonable adjustments if employment
arrangements, or the workplace itself, place a disabled person at a substantial
disadvantage compared to a non-disabled person. Reasonable adjustments have to be
considered at every stage of employment.
©Pearn Kandola
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Discrimination in Other Areas
The Act makes it unlawful for service providers, landlords and other persons to
discriminate against disabled people in certain circumstances. The duties on service
providers are being introduced in three stages: - Since 2 December 1996 it has been
unlawful for service providers to treat disabled people less favourably for a reason related
to their disability; - Since 1 December 1999 service providers have had to make
"reasonable adjustments" for disabled people, such as providing extra help or making
changes to the way they provide their services; and - From 1 October 2004 service
providers may have to make other "reasonable adjustments" in relation to the physical
features of their premises to overcome physical barriers to access.
Fair Employment and Treatment (Northern Ireland) Order 1998
(FETO)
The Fair Employment and Treatment (Northern Ireland) Order 1998 (FETO) makes it
unlawful to discriminate against someone on the ground of religious belief or political
opinion. This includes a person's supposed religious belief or political opinion and the
absence of any, or any particular, religious belief or political opinion.
Duties on Employers
The Order places a number of significant duties on employers that are not found in other
anti-discrimination legislation either in Northern Ireland or in Great Britain. These duties
are:
 Registration with the Equality Commission.

Annual submission of a monitoring return giving details of the community background
of the workforce.

Reviews of employment procedures such as recruitment, training and promotion
practices at least once every three years to determine fair participation from both
sides of the community.
Sex Discrimination (Northern Ireland) Order 1976 (amended 1988)
(SDO)
The Sex Discrimination (Northern Ireland) Order 1976 (SDO) makes it unlawful to
discriminate against an individual on the grounds of his or her sex in the fields of
employment, training and related matters, education, the provision of goods, facilities
and services, and the disposal and management of premises. The Order also makes it
unlawful to discriminate against married persons in employment; on grounds of gender
reassignment in employment and training; and prohibits discrimination against contract
workers.
©Pearn Kandola
(2007)
30
Equal Pay Act (Northern Ireland) 1970 (amended 1984)
Equal Pay legislation, provides for equal pay between men and women by giving a woman
the right to equality in the terms of her contract of employment where she is employed
on:
 Like work to that of a man.
 Work rated as equivalent to that of a man, or
 Work of equal value to that of a man.
The Act applies equally to men and women of all ages and its purpose is to eliminate
discrimination between men and women in pay and other terms of their contracts of
employment such as piecework, output and bonus payments, holidays, free
accommodation and sick leave. In practice any term which is in the man's contract but
missing from the woman's is to be treated as if it is in her contract. In addition any term in
the woman's contract which is less favourable to her than the same term in the man's
contract is to him, is improved so that they are equal.
Race Relations (Northern Ireland) Order 1997
The Race Relations Order outlaws discrimination on grounds of colour, race, nationality or
ethnic or national origin. The Irish Traveller community is specifically identified in the
Order as a racial group against which racial discrimination is unlawful.
The Order makes it unlawful to discriminate either directly to indirectly or through the
victimisation of an individual using definitions similar to those found in the Fair
Employment and Treatment (NI) Order 1998 (FETO). The Race Order adds a further ground
by providing that segregation on racial grounds also constitutes discrimination.
©Pearn Kandola
(2007)
31
EQUALITY AND HUMAN RIGHTS COMMISSION
Single Equality Body
A single equality body, the Equality and Human Rights Commission was established on 1
October, 2007. It merged the Commission for Racial Equality, the Equal Opportunities
Commission and the Disability Rights Commission, and is anticipated to take responsibility
for the new laws outlawing workplace discrimination on grounds of age, religion or belief
and sexual orientation.
©Pearn Kandola
(2007)
32
FURTHER REFERENCES
Fullerton, J., Dholakia, B. and Deeks, M. (1999). Managing diversity: an international
perspective. Equal Opportunities Review, 86, 33-36.
Kandola, R. (1998). Effective strategy for managing diversity.
Relations Briefing, 12, 6-7.
Croner’s Employee
Kandola, R. (1997). A diverse approach that yields benefits. Personnel Today, May.
Kandola, R., Fullerton, J. and Ahmed, Y. (1995). Diversity. Equal Opportunities Review,
59.
Kandola, R. and Fullerton, J. (1994) Managing the Mosaic: Diversity in Action Institute of
Personnel and Development.
Kandola, R. and Fullerton, J. (1994). Diversity: more than just an empty slogan. Personnel
Management, November, 46-50.
Kandola, R. (1994). The challenge of managing diversity. The Training Officer, 30(8), 248250.
Websites
www.equalityhumanrights.com – Equality and Human Rights Commission
www.equalityni.org – Equality Commission for Northern Ireland
europa.eu.int/comm/employment_social/index_en.html
European
Commission
Employment and Social Affairs web site including details of European directives and
initiatives on discrimination
www.agepositive.gov.uk – Age Positive site on combating age discrimination
www.interfaithcalendar.org – The Interfaith Calendar gives details of religious festivals
and holidays
www.equalitydirect.org.uk – Equality advice for business website
www.acas.org.uk/ - The ACAS website includes guidelines for employers on diversity
matters

www.employers-forum.co.uk – Employers Forum on Disability (EFD)

www.stonewall.org.uk – Stonewall
©Pearn Kandola
(2007)
33
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