EQUALITY AND DIVERSITY POLICY
Title of policy
Equality and Diversity Policy
Policy version number
HR15/02
Status
Ratified
Policy author
Human Resources Department
Policy contact
Assistant Director of HR – Workforce
Development
HR Policy Sub-Group
Negotiated through
Accountable director
Approved by:
Director of Organisational Development and
Human Resources
Executive
Ratified by
Joint Staff Committee
Date of ratification and
implementation:
Review date:
24th February 2010
Equality impact assessment
completed and impact
Document location
Yes and Neutral Impact
Distribution and dissemination
All employees via intranet
Principal target audience
All employees
Responsibility for dissemination of
policy to new employees
NHSLA/ Care Quality
Commission/ALE impact
All line managers
24th February 2015
Trust Intranet
CQC Standards-C7E
Care Quality Commission (CQC)
LITERATURE SEARCH AND EVALUATION
NHSLA Standards
CIPD Search
XpertHR Search to locate good practice
ACAS Code of Practice Search
REVISION HISTORY – DOCUMENT CONTROL
Version
Date
01
5 October 1999
02
24th February 2010
Signed off by Director of OD and HR and Chair of Staff Side-24th February 2010
Summary of Changes
New policy for newly merged
Trust
Incorporating new legislative
requirement.
1
RATIFICATION HISTORY
Ratifying body
Date of Ratification
Joint Staff Committee
5 October 1999
Joint Staff Committee
24th February 2010
Version
01
02
This policy has been ratified by Barnet and Chase Farm Hospitals Joint Staff side
Committee and Risk Committee. Circumstances may arise or there may be a
change in guidance or legislation that requires the policy to be updated between now
and the review date. The responsibility to ensure the policy review process is
activated lies with the Board Secretary. All policies remain in force until notification
of an amended policy is circulated and posted on the Trust intranet.
MONITORING THE EFFECTIVENESS OF POLICY IMPLEMENTATION
Key Performance Indicators: Employee Relations and Equality Report
Date of Audit Report:
December 2011
Location of Audit Report:
Human Resources Report
BARNET AND CHASE FARM HOSPITALS NHS TRUST
EQUALITY AND DIVERSITY POLICY
APPROVED ON WEDNESDAY 24TH FEBRUARY 2010
Signed on behalf of the Trust
Director of OD and HR
Raj Chana
Signed on behalf of the Joint Staff Side
Chair of Staff Side
Noeleen Behan
Signed off by Director of OD and HR and Chair of Staff Side-24th February 2010
2
1.
INTRODUCTION
Equal opportunities in the workplace is about ensuring that everyone has equal
access to employment and training opportunities and it has largely been driven
by legislative developments focusing in outlawing unfair discrimination.
Managing equality and diversity is regarded as a more positive or proactive
approach because it places more of an emphasis on valuing differences between
individuals and recognising that the engagement of employees from a range of
backgrounds can bring positive benefits for an organisation.
1.1
TRUST COMMITMENT
The Trust is committed to providing equal opportunities and avoiding unlawful
discrimination in employment of staff and provision of services to our patients.
This will ensure that the Trust is free of discrimination, harassment and bullying
and everyone is treated with dignity and respect.
1.2
The Trust‘s Single Equality Scheme sets out a three year action plan of how the
following equality strands will be promoted and embedded in the way we provide
services and manage staff. The equality and diversity legislation currently covers
the eight equality and diversity strands outlined below:

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

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Age
Carers
Disability
Gender
Human Rights
Race
Religion or belief
Sexual orientation
For further details please see Appendix 1-Laws relating to this policy.
2.
PURPOSE
2.1
Barnet and Chase Farm Hospitals NHS Trust is an Equal Opportunities employer
and is committed to the elimination of unlawful discrimination and the
implementation of employment practices which will ensure that no potential or
current employee is treated less favourably on the grounds of gender, sexual
orientation, age, marital status, race, nationality, ethnic origin, colour, religion or
belief or any other grounds, which cannot be justified.
2.2
The Trusts aims to ensure that no employee (that includes permanent
employees, bank employees, part time workers, agency workers or Fixed Term
contracts [FTC] employees), prospective employee or recipient of the service
experiences direct or indirect discrimination. It is our policy to promote an
environment free from discrimination, harassment and victimisation, and to build
a culture that is open, fair and transparent.
2.3
The objectives of this policy are:
Signed off by Director of OD and HR and Chair of Staff Side-24th February 2010
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2.31. To ensure that no-one receives less favourable treatment, on grounds of gender,
sexual orientation, marital status, race, nationality, ethnic origin, colour, religion or
belief, disability or is disadvantaged by any conditions, requirements, provisions,
criteria, procedure or practices that cannot be justified.
2.3.2
To ensure that no employee is victimised for taking action against discrimination
or harassment, or instructed or put under pressure to discriminate against , or
harass someone.
2.3.3 To ensure that the Trust is free of unwanted conduct that violates the dignity of
employee or creates an intimidating, hostile, degrading, offensive or humiliating
environment.
2.3.4 To ensure that opportunities for employment, training and promotion
open to candidates from all employees/applicants.
is equally
2.3.5
To ensure that selection for employment, promotion, transfer and training, and
access to benefits, facilities and services, will be fair, equitable and be based
solely on merit or needs.
2.4
The Trust is fully committed to establishing and maintaining a working
environment in which recruitment and promotion is based upon merit. We value
the differences that a diverse workforce brings to the organisation and strive to
make full use of the talents, skills, experience and different cultural perspectives
available in a multi-ethnic society, and where people feel they are respected and
valued, and can achieve their potential in both employment and service provision.
3.
PRINCIPLES
3.1
The Trust aims to ensure that no employee, prospective employee or recipient of
the service experiences direct or indirect discrimination on grounds of gender,
sexual orientation, age, marital status, disability, ethnic origin, colour, religion,
dependent responsibility or any other unjustified conditions.
3.2
The Trust sees the general benefit for service quality and patient care, in
employing, developing and retaining people who reflect the broad cultural
diversity of our community.
3.3
Policies, procedures and practices will be in accordance with all equal
opportunities legislation and good employment practice.
3.4
The Trust will take action to challenge and stop any direct and indirect acts of
discrimination in employment requirements and practices.
3.5
Access to Trust’s management, treatment under policies, procedures and
guidelines, and opportunities to develop abilities and realise expectations will be
fair and non-discriminatory across the Trust.
3.6
The Trust will monitor this policy by annual report to the Board and work in
partnership with Staff Side. The Single Equality Scheme will cover the eight
equality and diversity strands outlined below:


Age
Carers
Signed off by Director of OD and HR and Chair of Staff Side-24th February 2010
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





Disability
Gender
Human Rights
Race
Religion or Belief
Sexual orientation.
The following areas will be of primary concern to the Trust:




Recruitment, selection and retention;
Training and development;
Career progression-promotion and transfers;
Employee Relations information i.e. Disciplinary, Grievances, Bullying
and Harassment, Capability cases;
Redundancy selection and redeployment.
3.7
All employees will be encouraged to develop their skills and qualifications and to
take advantage of promotion and development opportunities in the Trust.
3.8
In addition, the Trust expects its employees, contractors, to act in accordance
with this policy. The Trust also emphasises that employees have a right to expect
similar fair and non-discriminatory treatment from patients, contractors, users,
carers, and members of the general public.
3.9
All employees will have access to training and development with KSF support
following appraisals and review of personal development plan with their line
manager.
3.10
Information on the age, gender, ethnicity and disability status of employee and
applicants for employment, promotions and training will be collated and analysed
and monitored by the Trust. The information will be held in the strictest
confidence and will only be used to promote equality of opportunity and prevent
unlawful discrimination.
3.11
If the data show that people from particular groups are under-represented in
particular areas of work, lawful positive action such as training provided for
employees and to improve their chances of applying successfully for vacancies in
the Trust.
3.12
Opportunities for employment and promotions will be advertised widely externally
and all applicants will be welcomed. Transfers, secondments and training will be
advertised internally.
3.13
Requirements, conditions, provisions, criteria and practices will be reviewed
regularly, in the light of the monitoring results, and revising, if they have been
found to, or might, discriminate unlawfully.
3.14
All Contracts between Barnet and Chase Farm Hospitals NHS Trust and
contractors to supply goods, materials or services will include a clause prohibiting
unlawful discrimination or harassment by contractors to provide equality of
opportunity in their employment practices.
3.15
The advice of the Human Resources Department will be sought in any matters
relating to equal opportunities in employment.
Signed off by Director of OD and HR and Chair of Staff Side-24th February 2010
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4.
SCOPE
4.1
This policy applies to all employees working for Barnet and Chase Farm
Hospitals NHS Trust. The Trust will ensure that no user of the service, i.e.
present employees or job applicant, receives less favourable treatment on the
grounds of:

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


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




Gender and Gender Identity
Marital status
Civil Partnerships
Parental/Guardian/Carer Status
Race
Creed
Religion or Belief
Physical, Mental or learning Disability
Age
Sexual Orientation
Trade Union Membership, or non-Membership, or Activity
5.
EQUALITY AND DIVERSITY VALUE STATEMENT
5.1
Equality
Equality is about creating a fairer society where everyone can participate and has
the opportunity to fulfil their potential. It is backed by legislation designed to
address unfair discrimination based on membership of a particular group in the
provision and access to service and employment.
5.2
Diversity
Diversity is about recognition and valuing of difference in the broadest sense. It
is about creating a working culture and practices that recognise, respect, value
and harness difference for the benefit of the organisation and individuals.
“We value and promote diversity”
5.3
The Trust is committed to eliminating discrimination where identified in all our
functions, services, policies and practices, as well as being committed to taking
positive action to promote diversity in the workplace.
5.4
All Trust employees and managers will value differences and be sensitive to the
needs of the individual patient or employee, treating each other fairly.
5.5
The Trust places a positive value on employee diversity and we believe that
differences in the workforce can add value to the organisation and make it
stronger, more flexible and ultimately more capable of delivering high quality
health care services that meet the needs of the local population.
5.6
The Trust aims to protect and enhance the dignity of employees and patients by
employing good management practices.
5.7
Barnet and Chase Farm Hospitals NHS Trust aims to treat people as individuals
in accordance with their personal health needs. We will not stereotype people
Signed off by Director of OD and HR and Chair of Staff Side-24th February 2010
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according to their membership of a particular group or community in our provision
of care and employment.
5.8
The Trust aims to make services sensitive and appropriate to the diverse
cultures, languages and individual needs of patients and work in partnership
within the local health and social care economy to reduce inequalities in health.
5.9
As a provider of healthcare services, the Trust works with the Joint Staff
Committee, commissioners and contractors to ensure that valuing diversity and
promoting fair access are core elements of care. The Trust is committed to
becoming a model employer, welcoming, valuing and learning from diversity of
our employees. The Trust will address any acts of unfairness or unlawful
discrimination, harassment and victimisation based on race, gender, disability,
age, religion or belief and sexual orientation.
5.10
The Trust will secure the best possible outcomes for all, without detriment to
particular groups within the available resources.
6.
BENEFITS OF EQUALITY POLICIES
6.1
There are three main benefits of having equal opportunities/diversity policies in
place:

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
Regulatory compliance;
Business benefits;
The promotion of social justice.
7.
BENEFITS OF DIVERSITY
7.1
Improved Employee Relations leads to:

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
7.2
Better service to patients



7.3
A healthier, more productive working atmosphere in which ideas can
flourish;
Fewer disputes amongst employees;
Better staff retention;
Improved morale;
Greater ability to attract staff.
A more diverse workforce is encouraged to use its talents to the full
Better understanding of the needs of patients
Organisation regarded more positively in the local communities.
Healthier society

Contribute to the health and well-being of society and help build a strong
expanding economy
Signed off by Director of OD and HR and Chair of Staff Side-24th February 2010
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8.
DUTIES AND RESPONSIBILITIES
Managers Duties:
8.1
Line managers are responsible for reading the Equal Opportunities policy to
familiarise themselves with the contents and create an awareness of its
implications to their staff. Line managers are also responsible for ensuring that
no discrimination occurs in their work and in day to day practice.
8.2
Managers and employees in key decision-making areas will be trained on the
discriminatory effects that provisions, practices, requirements, conditions and
criteria can have on some employees and patient groups, and the importance of
being able to justify decisions to apply them.
8.3
All line managers have a responsibility for ensuring that the policy is applied
effectively and fairly in their department/Wards. Through the contracting process,
the Trust has a responsibility to ensure that external contractors reflect and
adhere to the values expressed in this policy.
8.4
It is unlawful to discriminate against a disabled person when seeking work. All
managers are advised to consider any reasonable adjustment that may be
necessary whenever a disabled person seeks work with the Trust. Please see
the Trust’s “Access to Work scheme-Guidance for Managers and staff on the
Trust intranet.
8.5
All line managers must ensure no one suffers discrimination as a patient or
employee on the basis of:











Gender and Gender Identity
Marital status
Civil Partnerships
Parental/Guardian/Carer Status
Race
Creed
Religion or Belief
Physical, Mental or learning Disability
Age
Sexual Orientation
Trade Union Membership, or non-Membership, or Activity
Employee Duties:
8.6
All employees are expected to adhere to the Trust’s Equality and Diversity Policy.
8.7
All employees will have the Knowledge and Skills Framework (KSF) Core
Dimensions 6 (Equality and Diversity) in their job outlines and be set a minimum
level. Staff will be trained on their responsibilities and rights under the policy, and
how it will affect the way they carry out their duties. Equal Opportunities
information will also be incorporated into induction and appropriate training
programmes. All employees are expected to attend the Equality and Diversity
training once every 3 years to update them on new legislative requirements and
its implications in the workplace and service provision.
Signed off by Director of OD and HR and Chair of Staff Side-24th February 2010
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8.8
All employees of the Trust are expected to:
 Act in ways that are in accordance with legislation, policies, procedures
and good practice;
 Treat everyone with whom he/she comes into contact with dignity and
respect;
 Acknowledges other people’s different perspective;
 Recognises and reports behaviour that undermines equality and diversity;
 Achieve these competencies as part of their annual appraisal.
8.9
Individual employees are responsible for the practical application of the Policy
and must not practice, or induce other employees to practice, any form of
discrimination against colleagues or perspective employees. Any act of wilful or
persistent discrimination will be dealt with under the Trust’s Disciplinary
Procedure which may lead to dismissal. Individuals of any level or staff groups
have a responsibility to take action if they see or hear of discrimination by
reporting this to their line manager.
8.10
Employees and their representatives and trade unions will be consulted regularly
about the policy, and about related strategies and action plans.
Occupational Health Duties:
8.11 Occupational Health employees have a particular responsibility to support
managers in implementing the requirements of the Disability Discrimination Act,
through good practice in pre-employment screening and occupational health
referrals.
Human Resources Duties:
8.12
The Human Resources department have a responsibility to advise managers and
employees on legislation and best practices in the workplace.
Patient and Service User Duties:
8.13
Patient and service users will be made aware of the policy and their right to fair
and equal treatment. In addition, Trust employees have a right to expect similar
fair and non-discriminatory treatment from patients, contract employees and the
general public.
9.
ACCOUNTABILITY
9.1
The Chief Executive is accountable for equal opportunities in both employment
and service provisions, but the responsibility for employment provision is
delegated to the Director of Organisational Development and Human Resources.
Whilst the responsibility for service provision is delegated to all other Directors of
the Trust for the day-to day operation of the policy. All line managers have a
responsibility for ensuring that the policy is applied effectively and fairly in their
department and Wards.
9.2
The Director of Organisational Development and Human Resources and the
Director of Performance, Planning and Partnerships will report to the Executive
Team and the Board, annually, on the data produced through monitoring
practices.
Signed off by Director of OD and HR and Chair of Staff Side-24th February 2010
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9.3
The policy will be agreed by the Trust Board, and communicated to all employees
and job applicants, and will be placed in the Trust’s internet and website.
10.
COMMUNICATION AND AWARENESS TRAINING
10.1
All line managers are expected to communicate the Trust’s Equality and Diversity
policy to their staff. This could include for example policies that are designed to
support employees affected by violence and/or harassment in the work place i.e.
Harassment and Bullying Policy and Equality and Diversity Policy. All staff are
expected to attend their mandatory Equality and Diversity Training once in 3
years.
10.2 Employees should also be encouraged to discuss, share ideas or raise any
concerns about equality and diversity issues. Useful mechanisms to do this
include:
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


10.3
Induction training
Staff handbook summarising the policy provisions
Use of leaflets/posters when appropriate
Articles in staff newsletters
Open-door policies operated by managers
Feedback to employee on progress made on equality and diversity issues
such as results of staff attitude Survey and reporting workforce profile.
Encouragement to regularly talk about equality and diversity issues at team
meetings
Independent appraisal and development reviews
Team Brief
Notice Boards
Intranet/Website
Trust Annual Report
To support employees in their understanding of Equal Opportunities and nondiscrimination, The Trust provides the following Training:



Induction-New employees into the organisation. From April 2009 new
employees will not be able to commence work until they have completed
their induction programme. Equality in the workplace is covered during
this period.
Mandatory Equality and Diversity (face to face) course-This is
mandatory training and needs to be completed every 3 years by all
employees. The course is half day and is designed to improve awareness
of the language of diversity and equal opportunities and to explain the
importance of diversity. Dates and venues can be found in the Learning
Curve Manual.
E-learning- Within e-learning, there are two ways in which you can
complete equality and diversity training:
1. CLC (core learning unit) which is accessible through
HR/Training and Development pages or
2. OLC (Open Learning Centre) - CD ROMs are available to use in
computers based in the OLC.
Signed off by Director of OD and HR and Chair of Staff Side-24th February 2010
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11.
EMPLOYEE RELATIONS CASES
11.1
The Trust is fully committed to the elimination of all forms of discrimination,
harassment, victimisation and bullying at work and requires all employees to
comply with the implementation of policies. The Trust accepts that these
behaviours are demeaning, unprofessional and can create a threatening and
intimidating work environment that affects the well being of employees and can
have an adverse effect on their health and job performance.
11.2
Complaints of discrimination or harassment in the course of employment will be
regarded seriously, and may result in disciplinary sanctions, and even dismissal.
The complaints will be raised through the Harassment and Bullying Policy.
11.3
Grievances, disciplinary action, performance assessments and terminations of
employments, for whatever reason will also be monitored by employees groups/
bands, age, gender, ethnicity and disability within the Employee Relations
Equality Report.
11.4
In some cases, employees may be aware of their actions and insensitive to the
effect of their actions. In such instances, mediation will be offered as an informal
stage of the Disciplinary Procedure, to help them change their behaviour and
prevent further incidents.
11.5
Complaints of discrimination will be dealt with sensitively and swiftly with all
parties taking care to ensure confidentiality.
11.6
A member of staff may be reluctant to raise a formal complaint for a wide range if
reasons. Managers are encouraged to resolve the matter swiftly and
appropriately, in the interest of all parties.
11.7
A member of staff is encouraged to approach his/her immediate
supervisor/manager, however where the employee feels unable to do this, an
approach to a Human Resources Officer or to a Trade Union representative will
be taken forward in the appropriate manner.
11.8
Complaints by applicants for employment will be investigated by the appropriate
Human Resource Officer.
12.
MONITORING
12.1
The Trust will monitor this policy via the Equality, Diversity and Human Rights
Steering Committee. The Equality, Diversity and Human Rights Working Group,
the Disability Forum, the Black, Minority Ethnic Forum and the Equality Impact
Assessment Panel are forums working towards embedding Equality and Diversity
in the Trust.
12.2
Action plans underpinning the Trust’s Single Equality Scheme will demonstrate
progress made on a yearly basis.
Signed off by Director of OD and HR and Chair of Staff Side-24th February 2010
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13.
REVIEW
13.1
The Equality and Diversity Policy will be reviewed and amended in line with any
changes in the employment legislation and operational needs but certainly no
longer than 5 years from the time of ratification.
Signed off by Director of OD and HR and Chair of Staff Side-24th February 2010
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APPENDIX 1
LAWS RELATING TO THIS POLICY:
 THE EQUAL PAY ACT (as amended) 1970
This Act gives an individual a right to the same contractual pay and benefits as a person
of the opposite sex in the same employment, where the man and the woman are doing:
like work or work related as equivalent under an analytical job evaluation study;
or work that is proved to be of equal value.
 THE SEX DISCRIMINATION LEGISLATION
The Act [as amended] 1975 (which applies to women and men of any age, including
children) prohibits sex discrimination against individuals in the areas of employment,
education and in the provision of goods, facilities and services and in the disposal of
management of premises.

GENDER EQUALITY LEGISLATION
It is unlawful to discriminate in employment on the grounds of sex, marital status or
gender re-assignment. Gender Equality Public Sector Duty April 2007, Part 3 of the
Bill creates a duty on public authorities to promote equality of opportunity between
women and men and to prohibit sex discrimination in the exercise of public functions.
Public authorities will therefore have to treat men and women equally and fairly. This is
referred to as the ‘gender duty’. Once the Bill receives Royal Assent regulations
allowing for the creation of a Public Sector Gender Equality Duty with both general and
specific duties will be laid before Parliament, after completion of consultation on the
specific duties.
Guidance is provided as follows:
Current position
Key legislation
What employers must do
Implications
Issues
Shared learning
More information
Current position
Discrimination in employment on the grounds outlined above includes pay, terms and
conditions, and when providing housing, goods, services or facilities. Sexual
harassment and victimisation are also prohibited. However, it is not unlawful to
discriminate against someone because they are not married.
Public authorities also have a positive duty to promote gender equality.
Key legislation
The three primary pieces of legislation relating to sex discrimination are:


Equal Pay Act (1970) - introduced the concept of equal pay for work of equal
value
Sex Discrimination Act (1975) - made discrimination unlawful on the grounds of
sex, marital status and gender reassignment
Signed off by Director of OD and HR and Chair of Staff Side-24th February 2010
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
Equality Act (2006) - introduced a positive Gender Equality Duty on public
sector bodies to promote equality of opportunity between women and men and
eliminate sex discrimination
There are also additional pieces of legislation, orders and regulations covering
maternity, paternity, adoption and carer's leave.
Alongside the above, there is specific legislation and guidance covering the rights of
people who have undergone gender reassignment. These are:


Sex Discrimination (Gender Reassignment) Regulations 1999 - prevents sex
discrimination on gender reassignment. It clarifies the law for transsexual
people on equal pay and treatment in employment and training.
Gender Recognition Act 2004 - provides transsexual people with legal
recognition in their acquired gender following the issue of a full gender
recognition certificate, by a gender recognition panel. In practical terms, legal
recognition will have the effect that for example, a male-to-female transsexual
person will be entitled to a new birth certificate reflecting the acquired gender
and will be able to marry someone of the opposite gender to his or her acquired
gender.
What employers must do
The gender legislation places a number of duties and responsibilities on public sector
employers. For details on requirements for employers, see NHS Employer’s web pages
on Equal Pay, the Gender Equality Duty and the Sex Discrimination Act.
Implications
The gender equality duty – combined with the existing legislation around equal pay and
gender recognition issues – means that all healthcare providers must consider the
different needs of women and men, when developing policies and services.
Organisations must also look at their employment policies to see whether they affect
women and men differently and what more they can do to ensure equality of opportunity
between them.
Issues
There is still a significant pay gap between men and women in the UK, although this is
slightly better in the public sector. In terms of part-time workers and pay, the gap widens
and the differences become more marked. As the largest employer in the UK and with
almost 75 per cent of employees being female, the NHS has a key role in this area.
Shared learning
Some examples of good practice on gender equality can be found in our shared learning
web pages including:



Lancashire Care NHS Foundation Trust - they developed a number of initiatives,
including a City and Guilds accredited training course to raise employees
awareness of sexual orientation issues
The Royal Liverpool and Broadgreen University Hospitals NHS Trust - they
established an LGBT employee network and made a commitment to becoming
Stonewall champions
NHS Sefton and Sefton Equalities Partnership - addressing transgender
through creative recruitment practices
More information
For general guidance see:

NHS Employers - advice and guidance to boards on managing equal pay claims
Signed off by Director of OD and HR and Chair of Staff Side-24th February 2010
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
NHS Employers - summary of the key issues that organisations should consider
through organisational change to deliver on equality and diversity.

Cabinet Office - a job evaluation good practice guide 2007

Government Equalities Office - a factsheet on tackling the gender pay gap

ACAS - guidance and tools for employers and employee on the gender pay gap
For full details of specific legislation on gender see the Office of Public Sector
Information.
CIVIL PARTNERSHIP LEGISLATION
The Civil Partnership Act 2004 creates a legal relationship of civil partnership, which two
people of the same-sex can form by signing a registration document. It also provides
same-sex couples who form a civil partnership with parity of treatment in a wide range of
legal matters with those opposite-sex couples who enter into a civil marriage.
SEXUAL ORIENTATION LEGISLATION
The Employment Equality (Sexual Orientation) Regulations 2003 outlaw discrimination
(direct, indirect, harassment and victimisation) in employment and vocational training on
the grounds of sexual orientation. The regulations apply to discrimination on grounds of
orientation towards persons of the same sex (lesbians and gay men) and the same and
opposite sex (bisexual)
Guidance is provided as follows:
Current position
Key legislation
What employers must do
Implications
Issues
Shared learning
More information
Current position
In addition to discrimination in employment, it is also unlawful to discriminate on these
grounds in the provision of goods, facilities and services, in education and the provision
of public services.
Key legislation

The Employment Equality (Sexual Orientation) Regulations 2003 (SI 2003/1661)
- these apply across England, Scotland and Wales.

The Employment Equality (Sexual Orientation) Regulations (Northern Ireland)
2003 (SR 2003/497) - these apply across Northern Ireland.

The Employment Equality (Sexual Orientation) (Amendment) Regulations 2003
(SI 2003/2827)

The Equality Act (Sexual Orientation) Regulations 2007 (SI 2007/1263) covering areas outside pure employment law

The 2003 Regulations - introduced to implement the sexual orientation aspects
of EC General Framework Directive (2000/78) - they make discrimination on the
grounds of sexual orientation unlawful.

Civil Partnerships Act 2004 (see below for more details)
What employers must do

Introduce inclusive language on recruitment forms and materials and encourage
advertising of vacancies in lesbian, gay and other non-mainstream press.
Signed off by Director of OD and HR and Chair of Staff Side-24th February 2010
15






Review policies on equal opportunities, recruitment and selection, and training
and development, to ensure they explicitly refer to this aspect of equality (e.g.
by using the term partner rather than spouse).
Impact assess and review policies to ensure compliance – particularly carers
leave, annual leave policies and special leave and bereavement policies.
Introducing monitoring of sexual orientation in all policies where there might be
a possibility of legal challenge.
Ensure that outcomes of harassment and bullying disciplinary and employment
tribunals are monitored by sexual orientation.
Monitor sexual orientation in exit interviews and use them to identify common
themes or ‘hot spots’ of discrimination.
Ensure that information on sexual orientation is included in staff attitude
surveys.
Implications
The NHS employs around 1.3 million people. It is estimated that six per cent of the UK
population is LGB, it is therefore likely that 156,000 employees working for the NHS are
lesbian, gay or bisexual.
Issues
The Department of Health commissioned Stonewall to undertake a project to identify the
key barriers to reporting of homophobia against health and social care employees.
Stonewall's report, 'Being the gay one: Experiences of lesbian, gay and bisexual people
working in the health and social care sector', was published in June 2007 and includes a
series of recommendations to the Department for overcoming these barriers.
Shared learning
Some examples of good practice on sexual orientation equality can be found in our
shared learning web pages including:



A ten point action plan - developed jointly with Stonewall to support trusts
meeting their legal duties in a work environment which is free from
discrimination and harassment.
Lancashire Care NHS Foundation Trust - addressing sexual orientation through
accreditation, partnership working and training.
Royal Liverpool and Broadgreen University Hospitals NHS Trust - developing a
business case for a lesbian, gay, bi-sexual and transgender (LGBT) employee
network.
More information

Office of Public Sector Information - more details on the Employment Equality
(Sexual Orientation) Regulations 2000

Bisexual People in the Workplace - a Stonewall guide that has practical advice
for employers
RACE LEGISLATION
The Race Relations Act 1976 (amended in 2000), makes it unlawful to treat a person
less favourably on racial grounds, covers grounds of race, colour, nationality (including
citizenship) and national or ethnic origin. The Race Relations (Amendment) Act
outlawed discrimination (direct and indirect) and victimisation in all public authority
functions not previously covered by the RRA, with only limited exceptions. It also placed
a general duty on specified public authorities to promote race equality and good race
relations. There are specific duties for listed organisations including the production of
Race Equality Schemes.
Signed off by Director of OD and HR and Chair of Staff Side-24th February 2010
16
Guidance is provided as follows:
Current position
Key legislation
What employers must do
Implications
Issues
Shared learning
More information
Current position
The Race Relations (Amendment) Act 2001 extended the scope of the Race Relations
Act, placing a duty on trusts to promote racial equality:


General duty - have due regard to the need to eliminate unlawful racial
discrimination and to promote equality of opportunity, and good race relations
between people of different racial groups
Specific duties - a new definition of indirect discrimination. In addition to the
existing ‘formal’ practices, more informal practices are covered and increases
the scope for claims of indirect discrimination.
More specifically for employers:



Shift of the burden of proof – now when a claimant establishes a prima facie
case of racial discrimination or harassment the tribunal or court will uphold the
complaint in the absence of a satisfactory explanation
A widening of the application of ‘general occupational requirement’ where it is
applied appropriately
Extension of rights to cover relationships that have come to an end – e.g. where
an employer provides an unfair reference for an ex-employee that is racially
motivated
Key legislation

The Human Rights Act 1998

The Race Relations Act 1976

Race Relations Act 1976 (Amendment) Regulations 2003

The Race Relations Amendment Act 2000
What employers must do
NHS trusts as public authorities have general duties in carrying out their functions and
are required to:


eliminate unlawful racial discrimination
promote equality of opportunity and good race relations between persons of
different racial groups
Specific duties are also placed on trusts to help them meet the general duty.
These include:







having a separate race equality scheme, or as part of a single equality scheme
with an annual report each year
assessing which functions and policies are relevant to the general duty
monitoring the negative effect of policies and services
assessing and consulting on policies and proposals for adoption
publishing the results of any assessments, consultation and monitoring
making sure that the public have access to information and services
training and briefing employees
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17
Implications
Key considerations for trusts are outlined below:







Leadership and commitment – trust board and senior managers need to
demonstrate a clear public commitment to tackling racial discrimination and
promoting race equality
Develop race equality scheme/single equality scheme – setting out the
organisations arrangements/accountability and outcomes in terms of race
equality
Ensure impact assessments – review the impact of policies on race equality
at every stage of development, using the views of employees/patients and other
key stakeholders to shape policy and practice
Integrate into business planning and governance – both specific and
general duties are mainstreamed into all strategies and policies and
performance management structures.
Monitoring - having systems in place to monitor the impact of policies on
employees from different racial groups taking into account in terms of
employment factors e.g. employees in post, recruitment, retention, progression,
receiving training etc.
Consider using positive action - use data on local communities and
comparable data on staffing in further education nationally, to identify and
remedy disparities and possible barriers to equality of opportunity
Develop support networks – these can support employees people from black
minority ethnic (BME) backgrounds to meet and contribute to the working of the
trust, as well as support each other
Issues

Research shows there is still an under representation of BME employees at the
more senior levels of the NHS

There is also still evidence of particular BME communities not receiving the
same level of service as others

As the largest employer in Europe, the NHS has a key role in addressing
discrimination that is identified
Case law
Recent case law has centred on arms lengths bodies and the definition of ‘race’:
Leeds City Council v 1) Woodhouse and 2) West North West Homes Leeds (2009)
Woodhouse alleged he had been racially abused by a council staff member and claimed
racial discrimination against the council and his employer West North West Homes, an
arm’s-length management organisation (Almo). The council’s request that it should be
excluded from the claim was rejected by the tribunal because the council’s relationship
with the Almo was “extremely close”.
Okonu v G4S Security Services (UK) Ltd (2009)
The UK incorporated the race section of the EU framework directive into UK law by
regulation (rather than act of Parliament) and regulations cannot exceed the
requirements of the directive. The new regulations shifted the burden of proof to the
employer, once the employee has produced evidence of discrimination.
However, the directive’s definition of race is narrow – ‘racial or ethnic origin’ – compared
to the UK’s which includes ‘nationality and colour’. Because the regulation cannot
exceed the directive, the new burden of proof did not apply to this case because the
individual had based his race discrimination claim on being a black African from Nigeria.
Signed off by Director of OD and HR and Chair of Staff Side-24th February 2010
18
Shared learning
Some examples of good practice on race are available in our shared learning web
pages including:





Portsmouth Hospitals NHS Trust – the trust’s Positive Action Through Health
scheme (PATH) created a positive reputation of the trust within the community,
as a good employer, to encourage take up from BME groups.
The Royal Free Hampstead NHS Trust - an initiative ensured that all consultant
medical employees had an understanding and awareness of current equal
opportunities legislation and trust policy, before participating in selection
panels.
Royal United Hospital Bath NHS Trust – the trust actively canvassed the views
of black and minority ethnic (BME) employees to source current data and track
progress against the Standards for Better Health.
NHS Lincolnshire - the trust developed a employees awareness programme
called ‘a Taste of Poland' to make their employees aware of how to engage
with new migrant communities, to provide them with local information and
understand their service needs.
Royal Liverpool and Broadgreen University Hospitals NHS Trust - this trust
benchmarked themselves on race and employment against other large
employers in their locality to get valuable quantitative data. The trust used this
to set targets on the workforce profile for certain groups as well as identify
particular problems around data collection and benchmarking
More information

ACAS - booklet on Tackling Discrimination and Promoting Equality - Good
Practice Guide for Employers

Amicus - guide on Combating Racism and Achieving Race Equality at Work

Towards Racial Equality – an evaluation of the public duty to promote race
equality and good race relations in England and Wales (Commission for Racial
Equality, 2002)

Statutory code of practice on the duty to promote race equality, Commission for
Racial Equality, 2002

European Commission Against Racism and Intolerance

Home Office website

Institute of Race Relations
DISABILITY LEGISLATION
Disability discrimination occurs when, for a reason related to his/her disability, a
disabled person is treated less favourably than other people, and this treatment cannot
be justified. It also occurs when an employer fails to comply with the duty to make a
reasonable adjustment in relation to the disabled person, and the failure cannot be
justified. An employer cannot justify less favourable treatment if by making a
reasonable adjustment; it would remove the reason for the treatment. The Disability
Discrimination Act places responsibilities on the Trust when recruiting or employing
disabled people/people with disabilities. Those listed bodies within the public sector will
also be subject to a specific duty of the 2005 Act. The specific duty provides a clear
framework for meeting the general duty and includes the requirement to produce a
Disability Equality Scheme. The Act provides people with disabilities with legal
protection from discrimination in employment in obtaining goods and services and in
buying property.
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The Act defines disability as “A physical or mental impairment which has a substantial
and long term adverse affect on a persons ability to carry out normal day to day
activities”
Physical
There is no precise definition of the word ‘physical’ but it intends to include people with
physical and sensory impairments.
Mental
There is no precise definition of the word ‘mental’ but it intends to include people with
learning, psychiatric and physiological disabilities. An impairment resulting from or
consisting of a mental illness will be included but only if it is a clinically well-recognised
illness.
Impairment
Impairment will be considered to have an adverse effect on normal day to day activities
if the impairment affects one or more of the following capacities:
 Manual dexterity
 Physical co-ordination
 Continence
 Ability to lift, carry or otherwise move everyday objects
 Speech, hearing or eyesight
 Memory or ability to concentrate, learn or understand
 Perception of the risk of physical danger
Long-term
 If the impairment has lasted at least 12 months
 The period for which it lasts can reasonably be expected to last for at least 12
months
 It can reasonably be expected to last for the rest of the life of the person affected.
There are specific exceptions or inclusions:
Exceptions
 Addictions to alcohol, tobacco, drugs
 Hayfever
 Deliberately acquired tattoos/body piercing
 Personality, sexuality or behavioural disorders e.g. Kleptomania, pyromania,
psychopathic disorders, paedophilia
Inclusions
 Individuals who have previously had a disability
 All Registered Disabled People qualifying as a disabled person for an initial
period of 3 years
When is a workplace adjustment reasonable?
Employers may have to make reasonable adjustments if their employment
arrangements and premises substantially disadvantage a disabled employee or a
disabled job applicant, compared with a non-disabled person.
When an adjustment is being considered the following factors should be taken into
account:
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



The effectiveness of the steps in preventing the disadvantage
The practicability of the steps
The extent of the employers financial or other resources
The financial and other costs which would be incurred by the employer in taking
the step and the extent which would disrupt any of his activities.
The availability to the employer of financial or other assistance with respect to
taking the step.
Guidance is provided as follows:
Current position
Key legislation
What employers must do
Implications
Issues
Shared learning
More information
Current position
Discrimination against a disabled person in terms of their employment covers promotion
opportunities, dismissals, or subjecting them to any other detriment. It is also illegal to
discriminate by refusing to provide a disabled person with a service that is available to
everyone else, to offer services on different terms, or to fail to make reasonable
adjustments to allow access to services.
Public authorities also have a positive duty to promote disability equality.
Key legislation

The Disability Discrimination Act 2005

The Disability Discrimination (Guidance on the Definition of Disability) Appointed
Day Order 2006

The Disability Discrimination Code of Practice (Services, Public Functions,
Private Clubs and Premises) (Appointed Day) Order 2006

The Disability Discrimination Act (2005) built on the DDA 1995 by extending these
rights to those with HIV, multiple sclerosis (MS) and cancer. It also introduced a
positive duty on public bodies in 2006 to promote equality for disabled people. The
definition of a disabled person used in the DDA 2005 now covers a wider range of
people than in the 1995 Act:




anyone diagnosed with a progressive condition such as cancer, HIV and
multiple sclerosis, whether or not they are showing signs of their illness
people with severe disfigurements and 'hidden' disabilities like dyslexia and
epilepsy, depending upon the severity of the impairment
people who have severe back pain or arthritis, if it impairs their ability to do
normal activities
those who have had a disability in the past, even if they have recovered, for
example those who have had episodes of mental ill health.
In addition, those with mental ill health conditions are required to submit only the same
proof - substantial and long term - as those with a physical impairment
What employers must do

Ensure that recruitment and employment policies and practices have been
assessed for any disadvantages to disabled employees and job seekers and
that, where identified, reasonable adjustments have been made to mitigate
them.
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21

Develop and publish a disability equality scheme (DES) and action plan
(individually, or as focussed part of a single equality scheme) by December
2006, to be updated every 3 years.
Publish an annual report setting out progress in promoting disability equality.
Undertake disability equality impact assessments of all policies functions and
procedures.
Record and analyse monitoring data to assess the effect of changes in policy
and practice e.g. monitoring of recruitment processes, appraisal rates,
grievances and disciplinaries.
Involve disabled people in consultations on strategies and major policies.
There is also a recommendation to publish monitoring data and the results of
impact assessments. Those employers with more than 150 employees need to
collect data on disabled employees who:

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

receive training
benefit or suffer detriment as a result of performance assessment procedures
are involved in disciplinary and grievance procedures
Implications
The 1995 DDA introduced the concept of “reasonable adjustments” which employers
and service providers must now take to ensure that disabled service users and
employees are not unfairly disadvantaged. These might include changes to:

Policies or procedures,

The introduction of new equipment,

Physical changes to premises.

Allocating some of the disabled person’ duties to another person

Transferring them to fill another vacancy

Altering their working hours

Assigning them to a different place of work

Allowing them to be absent form work for rehabilitation, assessment or treatment

Giving them or arranging for them to be given training.
The Disability Equality Duty (DED) introduced in the 2005 DDA sets out very clear
additional steps that all public authorities must take to ensure that they do not
discriminate against disabled people when providing services or employment. Failure to
comply could result in a Compliance Notice from the Equality and Human Rights
Commission (EHRC). Other implications of non-compliance include:



losing the use if the “two ticks” disability symbol given by Jobcentre Plus if
practice is poor
damage to the reputation of the organisation as an equal opportunities employer
increased costs – sometimes it is more costly to put things right, rather than
ensuring systems meet people’s needs in the first place.
Issues
The latest legislation maintains an essentially medical model for the definition of
‘disabled’ i.e., “a physical or mental impairment which has a substantial and long-term
adverse effect on the ability to carry out normal day-to-day activities”. This has been
criticised by some disability support groups as too limited because it adopts the
perspective of a healthcare professional toward the disabled person as a subject.
Signed off by Director of OD and HR and Chair of Staff Side-24th February 2010
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An alternative “social model” favours viewing the environment, or society, as imposing
barriers on disabled people, often excluding them from participation in aspects of life
freely available to others. The emphasis on ‘reasonable adjustments’ in the early
legislation goes some way towards recognising that sometimes physical and / or
procedural barriers to disabled people gaining access to services and employment
opportunities might indeed be artificial and unnecessary and should be removed or
circumvented, even where there is a cost involved.
Shared learning
Some examples of good practice on disability equality can be found in our shared
learning web pages including:


Plymouth Teaching Primary Care Trust (PCT) - the PCT developed a new job
role of 'development officer' to help people with disabilities to gain a greater
access to, and quality of, services
South Birmingham PCT - the trust consulted people with learning disabilities
before producing an easy-to-read disability equality scheme More information
More information

Equality and Human Rights Commission - for details on the Disability Equality
Duty: Statutory Code of Practice
HUMAN RIGHTS LEGISLATION
The United Kingdom signed and ratified the European Convention on Human Rights
(ECHR) in 1950. This convention is a binding international agreement. The Human
Rights Act came fully into force on 2 October 2000. It gives further affects in the UK to
the rights contained in the European Convention of Human Rights. The Act makes it
unlawful for a public authority to breach Convention Rights, unless an Act of Parliament
meant it could not have acted differently. The Act means that cases can be dealt with in
a UK court or tribunal and states that all UK legislation must be given a meaning that fits
with the Convention rights, if that is possible. Guidance is provided as follows:
Current position
Key legislation
What employers must do
Implications
Issues
Shared learning
More information
Current position
The ECHR outlines fundamental civil and political rights but for many years was not part
of UK law. Using the ECHR usually meant taking a case to the European Court of
Human Rights in Strasbourg, which was often time-consuming and expensive.
Since 2000, the Human Rights Act (HRA) has made rights from the ECHR enforceable
in UK courts. This is much quicker and simpler than the old arrangement. The HRA
contains 15 different sections (called “articles”) which relate to fundamental rights for
everyone.
The Equality and Human Rights Commission is currently carrying out a review of the
Human Rights Act as it operates within the UK.
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Key legislation

Human Rights Act (HRA) 1998 - enacted 9 November 1998, enforced 2 October
2000
The HRA incorporates rights under the ECHR into UK domestic law. Individuals can
bring claims under the HRA against public authorities for breaches of convention rights.
UK courts and tribunals are required to interpret domestic law, as far as possible, in
accordance with convention rights. Previous case law may be overturned if there is a
breach of convention rights and the relevant law can be re-interpreted in a way that is
compatible.
What employers must do
Employers must take account of relevant articles within the HRA when developing
policies and procedures. NHS trusts have obligations to promote and protect the human
rights of their employees in a way that is compatible with the HRA, and the ECHR.
In practice this means treating individuals with fairness, respect, equality, dignity and
autonomy whilst also safeguarding the rights of the wider community
when:


developing policies and procedures
carrying out the functions of an employer on an on-going basis.
Where NHS organisations are already advanced in their review of policies and
procedures using the existing equality impact assessment (EqIA) process, they are
likely to find themselves relatively well-placed if challenged under the HRA. This will be
particularly true if they have undertaken EqIAs for all of the diversity strands.
Implications
The 15 articles within the HRA cover human rights across a range of areas. Some of
those which might have an impact on employment and provision of healthcare services
include:






Article 6 – right to a fair trial
Article 8 – right to respect for private and family life
Article 9 – freedom of thought, conscience and religion
Article 10 – freedom of expression
Article 11 – freedom of assembly and association
Article 14 – freedom from discrimination.
Issues
Enforcement of rights under the HRA tends to be through case law, rather than as a
result of failure to adhere to any specific duty or code of practice.
Shared learning

Surrey and Borders Partnership NHS Foundation Trust - embedding a human
rights training programme linked to the Knowledge and Skills Framework

Heart of Birmingham Teaching PCT - mainstreaming human rights
More information

NHS Litigation Authority - a free Human Rights Act Information Service for the
NHS.
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RELIGION OR BELIEF LEGISLATION
It is unlawful to discriminate (direct, indirect, harassment and victimisation) in
employment and vocational training on the grounds of religion or belief. Guidance is
provided as follows:
Current position
Key legislation
Other relevant legislation
Exceptions
What employers must do
Implications
Issues
Shared learning
More information
Under the Regulations 2003, religion or belief is defined as being any religion, religious
belief or similar philosophical belief. It is for employment tribunals to decide what
constitutes a ‘belief’.
Current position
The Employment Equality (Religion or Belief) Regulations 2003 came into force in 2003.
These regulations make it unlawful on the grounds of religion or belief to:




Discriminate directly against anyone by treating them less favourably than
others because of their religion or belief.
Discriminate indirectly against anyone by applying a criterion, provision or
practice which disadvantages people of a particular religion or belief unless it
can be objectively justified.
Subject someone to harassment by unwanted conduct that violates a person’s
dignity and creates and intimidating, hostile, degrading, humiliating
environment.
Subject someone to victimisation by treating them less favourably for taking
action or assisting someone else who has taken action.
In addition the Equality Act 2006 removed the requirement fro philosophical belief to be
similar to religious belief and clarified that a lack of religion or belief was also protected.
This act also prohibited discrimination on grounds of religion or belief in the provision of
goods, facilities and services, education, the use and disposal of premises and the
exercise if public functions.
Key legislation

The Human Rights Act 1998

The Employment Equality (Religion or Belief) Regulations 2003

Anti-terrorism, Crime & Security Act 2001

Racial and Religious Hatred Act 2006

The Equality Act 2007
Other relevant legislation

Article 9 of the Human Rights Act 1998 – covers freedom of thought,
conscious and religion as a qualified right. It states that a person can hold any
religious belief and cannot be forced to change/follow or stop following their
religion or belief. The act covers a broad definition of religion and also includes
beliefs such as veganism and pacifism.
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25


Anti-terrorism, Crime & Security Act 2001 - covers religiously aggravated
offences and harassment. Offences such as, assault, criminal damage, and
harassment can be taken into account if there is a religious element.
Racial and Religious Hatred Act 2006 - this covers offences involving stirring
up hatred against persons on religious grounds.
Exceptions
There are two exceptions to the above legislation:


Genuine occupational requirements - there are a small number of instances
where it is lawful for an employer to treat individuals differently on the basis of
belief, if having a particular religion or belief is a genuine occupational
requirement for the post. This requirement has to be proven by the employer
and must reflect the nature of the work.
Positive action - selection for recruitment or promotion must be on merit,
irrespective of religion or belief but it is possible to take steps to redress the
effects of previous inequality of opportunity e.g. advertisements encouraging
applications from a minority religion but making it clear that selection, will be on
merit without reference to religion.
What employers must do:
Although employers are not required to provide time and facilities for religious or belief
observance in the workplace, they should consider whether their policies, rules and
procedures indirectly discriminate against employees of particular religions or beliefs. If
they do, they should also consider whether reasonable changes might be made.
The following are examples of areas where employers have taken steps to make
reasonable changes:





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
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


Break policy
Flexible scheduling, e.g. avoiding important religious festivals when interviewing
Religious leave
Responding to dietary needs
Fasting
Alcohol
Prayer rooms
Time off for prayer
Uniforms/specific dress codes
Dress codes and health and safety
Jewellery
Undressing/shower facilities
Social Interaction, e.g. acknowledging that some applicants will avoid eye
contact for religious reasons and some may not wish to shake hands
Monitoring of religious beliefs to identify the potential needs of employees
Implications
Possible areas or activities for organisations to consider when considering religion or
belief issues in the workplace are:



Develop employees awareness of belief systems and faith patterns in the UK
Develop guidance on the equality provisions in the Employment Equality
(Religion or Belief) Regulations 2003, including direct and indirect
discrimination, victimisation and harassment
Profile your workforce to identify both risks and opportunities it creates; for
example, applications for leave for religious festivals may create flexibility at
other times
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26







Establishing boundaries beyond compliance allows an organisation to consider
how far it would go to support employees in practicing their religion or belief; for
example employees networks, quiet rooms etc
Impact assess policies and practices in line with the relevant regulations to
ensure they do not disadvantage particular religious groups or beliefs
Promote a culture of respect through awareness training and how it contributes
to the working of the organisation
Decide if a request is reasonable or practical through engagement with the
workforce and wider community (not all requests for adjustments will be)
Address practical considerations e.g. food, holidays, dress, prayer etc through
learning and development
Develop a business case on the value of addressing religion or belief e.g.
improving efficiency and avoiding claims
Raise awareness with key stakeholders on how the organisation accommodates
and values religious and belief in the workplace
Issues
The issue of religion or belief has been addressed in high profile court cases in
particular dress codes, the clash between religious discrimination and sexual
orientation, definition of religion or belief and ‘preaching’ in the workplace.
Cases involving employment and claims of religious discrimination in relation to dress
codes have been lost (in the cases of Eweida V British Airways - the wearing of a
crucifix - and Azmi V Kirklees MBC - the wearing of the niqab). The latest challenge of
Sarika Watkins-Singh - a Sikh girl whose school’s uniform policy did not permit her to
wear a Kara (bangle) - has been successful. In this instance, the school’s policy was
found to have been indirectly discriminatory on grounds of both race and religion and
not objectively justified under the Race Relations Act 1976 (RRA) and the Equality Act
(2006)
Other recent cases include:



Ladele V London Borough of Islington (2009) - a registrar refused to officiate
in civil partnerships on the grounds of her Christian beliefs. Although the
individual’s direct and indirect religious discrimination claims succeeded initially,
the employment tribunal said that this was not direct discrimination since the
same requirements applied to all registrars.
McFarlane v Relate Avon Ltd (2009) – an employee worked as a relationship
counsellor and was not comfortable working with same-sex couples because
their behaviour was contrary to his Christian beliefs. His claim – following his
dismissal because he would not confirm that he would provide the same quality
of service to them - failed because his role required him to provide same-sex
couples with a satisfactory service.
Chondol V Liverpool Council (2009) – a social worker had given a Bible to a
client and asked another whether he believed in God and attended church. He
was dismissed for failing to observe the council’s prohibition on the overt
promotion of religious beliefs and the tribunal’s decision was upheld, because
he was dismissed for improperly imposing his Christian beliefs on service users,
not because of his religion.
Shared learning
‘Bare below the arm’ policy
Guidelines to tackle the spread of infections includes a ‘bare below the elbow’ dress
code policy. Muslim doctors and students at Liverpool’s Alder Hey Trust, and elsewhere,
objected to this because it is immodest in Islam to expose any part of the body except
the face and hands. Dr Steve Ryan, medical director at Alder Hey, underlined that the
Signed off by Director of OD and HR and Chair of Staff Side-24th February 2010
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trust had to implement ‘bare below the elbow’ for reasons of patient safety; with no
exceptions but worked with Muslim students to find a solution. The hospital now
provides facilities for female Muslim students to change their outerwear and hijab for
theatre scrubs.
Multi-faith rooms
5 Borough Partnership has a quiet room with Multi-faith resources to cater for
employees and service users who practise minority faiths. The resources have also
proved useful for those wanting to expand their knowledge of other faiths. The trust
has also developed a guide that outlines briefly the dietary preferences of the main
religious groups represented locally.
Building employees understanding to reduce missed appointments
Bradford Hospitals NHS Trust analysed their ‘missed appointments’ statistics and found
that many patients were missing appointments on religious holidays. They distributed a
multi-faith calendar to employees to enable them to take religious holidays into account,
when planning patients’ treatment.
More information

Office of Public Sector information - the Employment Equality (Religion or
Belief) Regulations 2003

Department of Health website - Religion or belief: a practical guide for the NHS

The BBC website - an overview of the key religions and beliefs

On-line interfaith calendar

Employers Forum on Belief

ACAS – guidance on Religion or Belief and the Workplace and putting the
guidance into practice

Department for Business Enterprise and Regulatory Reform website Employment Equality regulations

Multifaithnet - an introduction to many different religions
AGE EQUALITY LEGISLATION
It is unlawful to discriminate in employment on the grounds of age. This page has
information and guidance on age legislation, with links to support tools for employers to
help them develop an age diverse workforce.
Current position
The law on age discrimination - whether direct or indirect - applies to employees, job
seekers and trainees. It covers the areas of recruitment, terms and conditions,
promotions, transfers, vocational training, terminations and retirement. It also prohibits
harassment, bullying and victimisation on the grounds of age.
Discrimination on the grounds of age in the delivery of goods and services (including
public services) is currently not illegal. However, this will change when the Equality Bill
comes into effect.
Age discrimination can be explained as occurring when someone treats a person less
favourably because of that person’s age and uses this as a basis for prejudice against
and unfair treatment of that person.
Age discrimination in employment can:

Affect anybody regardless of how old they are
Signed off by Director of OD and HR and Chair of Staff Side-24th February 2010
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
Reduce employment prospects for older people, younger people and parents
returning to work after a period of full-time childcare

Favour people in age group 25-35

Prevent the full consideration of abilities, potential and experience of employees.
Key legislation

Employment Equality (Age) Regulations 2006.
What employers must do
Unlike legislation covering some other strands of equality and diversity, there is no
general or specific duty for age discrimination. Employers need to use a variety of
techniques at strategic, policy and operational levels, to ensure that they are compliant
with the law. See NHS Employer’s Ageing workforce web pages (link) for more details
on interpreting the law and more importantly, promoting age diversity work policies.
Implications
The Employment Equality (Age) Regulations are set in the context of a maturing UK
population and proportionally fewer school leavers in the available labour market. By
2025, half of the adult population will be aged 50 or over. This change in the
demographic makeup of our society is also taking place in other countries and the
implications now need to be addressed. Employers will need to ensure that their
recruitment and employment policies and procedures do not discriminate on age
grounds and that harassment, bullying and victimisation are eradicated. This applies to
all age groups: young, old and in-between.
Issues
The main issue relates to enforced retirement age. The ageing population means there
is a trend towards more people in retirement being supported by fewer people in
employment. This has prompted calls to extend the retirement age beyond the current
age of 65. This was introduced as 'standard' when life expectation beyond 65 was
considerably lower than today. While employers are not obliged to extend employment
beyond 65, the law currently insists that they consult with workers about when they
would prefer to retire.
Shared learning examples
Some examples of good practice on age equality can be found in our shared learning
web pages including:


Sandwell Primary Care Trust funded the Agewell initiative - a midlife future
planning course to help local people make more informed choices about their
retirement.
More examples can be found on our beyond compliance web page
More information

NHS Employers ageing workforce web pages - for further guidance and tools
including a briefing on age profiling, an awareness training package, examples
of trusts going beyond compliance and the business case for age diversity

Office of Public Sector Information - full details on the Employment Equality
(Age) Regulations 2006

ACAS - information and advice on a wide range of issues including publications
on employing older workers, ageism and flexible working
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29
CARERS EQUALITY LEGISLATION
Several pieces of legislation cover the rights of carers including the right to request
flexible working and in some cases, a change to terms and conditions. Guidance is
provided as follows:
Current position
Key legislation
What employers must do
Implications
Issues
Shared learning
More information
The legislation defines a carer as someone who cares for, or expects to care for, a
husband, wife or partner, a relative such as a child, uncle, sister, parent-in-law, son-inlaw or grandparent, or someone who falls into neither category but lives at the same
address as the carer.
Current position
In June 2008, the Government announced its vision for future care and support of carers
in its document, Carers at the heart of 21st century families and communities: a caring
system on your side, a life of your own. The Government committed £255 million to
implementing the strategy in both the short and long term. New commitments included:





£150 million towards planned short breaks for carers
£38 million towards supporting carers to enter or re-enter the job market
£6 million towards improving support for young carers
piloting of annual health checks for carers to help them stay well and training for
GPs to recognise and support carers
a more integrated and personalised support service for carers through: easily
accessible information, targeted training for key professionals to support carers
and pilots to examine how the NHS can better support carers.
The Employment Act gave working parents of disabled children under 18 the right to
request flexible working arrangements. The Work and Families Act 2006 further
extended the legal rights and protections for carers at work.
The Work and Families Act sets out the right of parents of children under six (or 18 if the
child is disabled) to request flexible working. Employees who have worked for their
employer for at least 26 weeks can apply to make a permanent change to their terms
and conditions.
Since 6 April 2007, employees also have a statutory right to request flexible working
(e.g. changing hours, compressed hours or working from home) if they are caring for an
adult who is a relative or lives at the same address. There are also provisions within the
Employment Relations Act 1999) giving employees the right to take unpaid time off work
for dependants, in cases of emergency.
In many circumstances carers have the right to a needs assessment, which must take
account of their employment, study and leisure needs. Local authorities also have a duty
to inform carers of this right.
Key legislation

The Children Act 1989 - enacted 16 November 1989, came into force October
1991.
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


The Carers (Recognition and Services) Act 1995 - enacted 28 June 1995, came
into force April 1996.
Carers and Disabled Children Act 2000 - enacted 20 July 2000, came into force:
April 2001.
Carers (Equality Opportunities) Act 2004 - enacted 22 July 2004, came into
force April 2005.
What employers must do

Ensure that equal opportunities policies address the rights of employees
members who are carers, and that other related policies e.g. those dealing with
flexible working and work-life balance, are in line with this.

Ensure that managers and employees are aware of carers’ rights and their own
responsibilities in this area.

Ensure that operational procedures facilitate collaboration with local authorities
in supporting carers’ needs.
Implications
The responsibility for informing carers of their rights and for carrying out carers’
assessments will normally lie with local authorities. However, other agencies, such as
NHS organisations, are obliged to support local authorities with providing co-ordinated
support to carers. Employers also need to ensure that carers’ issues are included in
their equal opportunities policies and that these complement their policies on flexible
working and work/life balance.
Employers are also responsible for ensuring that employees and managers know about
the legislation and appreciate the additional rights that carers might have.
Issues
Carers UK published a report in 2006 entitled Who Cares Wins: the social and business
benefits of supporting working carers. The report followed a study exploring how three
different employers created a supportive environment for carers at work.
According to the report, the adoption of flexible working practices can potentially save
organisations time and money, with some companies reporting savings of over £1
million. The report identifies the headline business benefits of supporting carers
including:








lower employees turnover
reduced recruitment and training costs
greater productivity
lower absenteeism
higher employees morale
higher levels of trust in working relationships
improved company image
improved recruitment.
Shared learning
Some examples of good practice on carer equality can be found in our shared learning
web pages including:

NHS Networks - Valuing Carers in the Hospital Environment: good practice
guide
More information

Carers UK: report - Who Cares Wins: The Social and Business Benefits of
Supporting Working, 2006
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
ACAS - guide to help employers and employees agree flexible working
arrangements
Department of Health - government's carers strategy outlined in Carers at the
heart of 21st century families and communities: a caring system on your side, a
life of your own (2008)
NHS Confederation - briefing, Carers at the heart of 21st century families
Agenda for Change terms and conditions of service handbook - specifically
sections 30-36 in part 5 (employment of Carers), and section 33 (Caring for
Children and Adults) and section 35 (Balancing Work and Personal Life).



WHAT IS DIRECT DISCRIMINATION?
Direct Discrimination occurs when a person is treated less favourably than another on
the grounds of their sex, marital status, religious belief, political opinion, race, nationality
or other ethnic/national origin.
WHAT IS INDIRECT DISCRIMINATION?
Indirect discrimination can occur when a requirement or condition, which cannot be
justified on grounds other than sex, marital status, religious belief, political opinion, race,
nationality or ethnic/national origin, is applied equally but has the effect in practice of
disadvantaging a considerably higher proportion of persons in one or other of the above
groups.
In order to establish a complaint of indirect discrimination, an applicant must show the
following:





That a requirement or condition has been applied
That the said requirement or condition adversely impacts against the person
Because of his/her religious belief, political opinion, sex marital status, race.
Nationality, or ethnic/national origin
That he/she has suffered detriment by reason being unable to comply with the
condition or requirement.
WHAT IS VICTIMISATION?
Victimisation occurs when a person is treated less favourably than another because that
person has, for example, asserted rights under any of the discrimination laws or has
helped another person to assert such rights or given information to the relevant statutory
body, or because it is suspected that the person might do any of these things.
COMPLAINTS
Complaints of the sex/marital status, race/nationality/ethnic/national origin and disability
discrimination should be lodged with the Employment Tribunal within three months from
the date of the alleged act of discrimination.
ARBITRATION
Equality Direct is part of ACAS, the Advisory Conciliation and Arbitration Service. ACAS
can provide good practice advice on employment relations and run a series of
employment seminars on various employment topics around the country.
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Appendix 2
DIGNITY AT WORK
The Trust is committed to creating a work environment free of harassment and bullying,
where everyone is treated with dignity and respect.
Some Harassment is unlawful discrimination and serious harassment may be a criminal
offence.
Bullying is offensive, intimidating, malicious or insulting behaviour, an abuse or misuse
of power which is meant to undermine, humiliate or injure the person on the receiving
end. Examples of bullying would include picking on someone or setting him/her up to
fail or making threats or comments about someone’s job security without good reason.
Harassment is unwanted conduct related to sex, gender reassignment, race, or ethnic
or national origins, disability, sexual orientation, religion or belief, age or any other
personal characteristic which:
 Has the purpose of violating a person’s dignity or creating an intimidating, hostile,
degrading, humiliating or offensive environment for that person.
 Is reasonably considered by that person to have an effect of violating his or her
dignity or of creating an intimidating, hostile, degrading, humiliating or offensive
environment for him/her even if this effect was not intended by the person
responsible for the conduct.
Examples of harassment would include physical conduct ranging from unwelcome
touching to serious assault, unwelcome sexual advances, demeaning comments about
a person’s appearance, unwelcome jokes or comments of a sexual or racial nature or
about an individuals age, the use of obscene gestures and the open display of pictures
or objects with sexual or racial overtones, even if not directed at any particular person
e.g. magazines, calendars or pin-ups.
Conduct may be harassment whether or not the person behaving in that way intends to
offend. Something intended as a ‘joke’ may offend another person. Everyone has the
right to decide what behaviour is acceptable to him or her and to have his or her feelings
respected by others. Behaviour which any reasonable person would realise would likely
to offend will be harassment without the recipient having to make it clear in advance
that behaviour of that type is not acceptable to him or her e.g. sexual touching. It may
not be so clear in advance that some other forms of behaviour would be unwelcome to,
or could offend, a particular person e.g. certain banter, flirting or asking someone for a
private drink after work. In these cases first-time conduct which unintentially causes
offence will not be harassment but will become harassment if the conduct continues
after the recipient has made it clear by words or conduct that such behaviour is
inacceptable to him or her.
A single incident can be harassment if it is sufficiently serious.
If you think you are being bullied or harassed you may be able to sort matters out
informally. The person may not know that his or her behaviour is unwelcome or
upsetting. You may feel able to approach the person yourself, or with the help of
someone else at the Trust. You should tell the person what behaviour of his or hers you
find offensive and unwelcome and say that you would like to stop immediately.
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If an informal approach does not resolve matters, or you think the situation is too serious
to be dealt with informally, you can make a formal complaint by using the grievance
procedure.
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Appendix 3
Law relating to this document
Disability Discrimination Act 1995
Disability Discrimination Act 2005
Protection from Harassment Act 1997
Race Relations Act 1976
Sex Discrimination Act 1975
Civil Partnership Act 2004
Equality Act 2006
Civil Partnership Act 2004 (Amendment to Subordinate Legislation) Order 2005 SI
2005/2114
Employment Equality (Religion or Belief) Regulations 2003 SI 2003/1160
Employment Equality (Sexual Orientation) regulations 2003 SI 2003/1161
Employment Equality (Age) Regulations 2006 SI 2006/1031
Employment Equality (Sexual Discrimination) Regulations 2005 SI 2005/2657
Sex Discrimination Act 1975 (Amendment) regulations 2008 SI 2008/656
Employment Equal Treatment Framework Directive 2000/78/EC
Equal Treatment Directive 76/207/EC as amended by Directive 2002/73/EC
European Commission Recommendation 92/131/EEC and Code of Practice on the
protection of the dignity of women at work (on the European Commission website)
Signed off by Director of OD and HR and Chair of Staff Side-24th February 2010
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Appendix 4
POSITIVE OR AFFIRMATIVE ACTION
The Commission for Racial Equality (CRE) defines positive actions as:
‘A series of measures by which people from particular racial groups are either
encouraged to apply for jobs in which they have been under-represented or given
training to help them develop their potential and so improve their chances when
competing for particular work’
However, positive action can be taken to mean any action that assists people from any
under-represented group to achieve their potential in the work place and to overcome
any form of institutional discrimination.
Examples of positive action could be:
 Employer support equality networks in which women and minority ethnic
employers can support and mentor one another.
 Making links with local ethnic minority and religious community groups to promote
the organisation as a potential employer
 Making a commitment to interview all applications with a disability
Action plans drawn up as part of an organisation’s diversity and equality strategy could
be described as positive action plans.
The positive action described above is quite legal. It would become illegal if, for
example, preferential treatment were given to an individual with fewer skills,
qualifications and less experience because they were a member of the underrepresented group.
How does positive or affirmative action differ from positive discrimination?
It is important to understand the legal meaning of the terms positive or affirmative action
and how they differ from the term positive discrimination.
Positive discrimination or preferential treatment, irrespective of the motive, is unlawful
under race and sex discrimination laws. For example, in 1996 the Labour party’s
attempt to have women-only shortlists for parliamentary selection was declared
unlawful.
The 1995 Disability Discrimination Act is a significant exception in this respect. It is not
unlawful to treat a disabled person more favourably than someone without that disability
in certain circumstances.
What is the legal meaning of positive action?
The race relations and sex discrimination acts define specific types of positive action to
overcome previous disadvantage in access to training and employment.
Will the amended Race Relations Act broaden the scope for positive action?
The Race Relations (Amendment Act) places a duty on all public authorities to promote
equality of opportunity and good relations between persons of different racial groups.
The CRE is currently developing a series of codes of practice to assist the
Signed off by Director of OD and HR and Chair of Staff Side-24th February 2010
36
implementation of the Act. The Home Secretary has the power to introduce specific
duties via secondary legislation, and it is likely that the Act may broaden the scope for
positive action.
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Appendix 5
USEFUL ORGANISATIONS
NAME
Equality and Human
Rights Commission
Department of Health
RCN Nurseline
Employers Forum on Age
Runnymede Trust
Disabled Living
Foundation
Government Equalities
Office
Working Families
INFORMATION
Independent statutory
body established to help
eliminate discrimination,
reduce inequalities,
protect human rights and
to build good relations
Providing health and
social care policy,
guidance and publications
for NHS and social care
professionals.
Provides specialist teams
and services to help with
personal matters including
counselling, career
information, guidance on
immigration, advice and
services for ill, injured and
disabled RCN members
A network of employers
confronting age
discrimination in the
workplace.
Runnymede is a UK wide
independent think tank on
ethnicity and cultural
diversity. It conducts
policy research in order to
challenge racial
discrimination, influence
anti-racist legislation and
promote a successful
multi-ethnic Britain.
Provides information on
employing people with
disabilities
(Formerly the Women and
Equality Unit)
Government department
based in the Cabinet
Office dealing with women
and work issues.
(Formerly Parents at
Work) Support for parents
on employment rights,
campaigning for changes
in law, training and advice
for employers of people
with children.
Signed off by Director of OD and HR and Chair of Staff Side-24th February 2010
CONTACT DETAILS
www.equalityhumanrights.com
England: 0845 604 6610
Scotland: 0845 604 5510
Wales: 0845 604 8810
www.dh.gov.uk
020 7210 4850
www.rcn.org.uk
020 7647 3463
020 7409 3333
www.efa.org.uk
0845 456 2495
www.runnymedetrust.org
020 7377 9222
www.dlf.org.uk
020 7289 6111
0845 130 9177
www.equalities.gov.uk
0303 444 0000
www.workingfamilies.org.uk
020 7253 7243
38
Department for Children,
schools and families
National Aids Trust
Terrance Higgins Trust
Job Centre Plus
The Work Foundation
Stonewall
Age Concern
Press for Change (gender
reassignment)
The Andrea Adams Trust
(Formerly DfES Childcare
Information)
The Department for
Children, schools and
families provides
information for children
and young people to grow
up in happy, healthy, safe
environment. With a top
class education and help
to keep them on track.
The UK-wide national Aids
organisation
This is the largest HIV and
Aids charity delivering
health promotion
campaigns and direct
support to all people at
risk and living with HIV.
UK wide Charity.
Provides specialist
services for disabled
people
Campaigns, researches,
trains, provides
consultancy on
employment, management
and equal opportunities
issues
A campaigning body for
the rights and welfare of
lesbians and gay men that
gives advice and
information about
Discrimination in the
workplace.
Campaign to influence
government policy on the
provision of information,
research etc. and also
provide local services for
older people.
A political lobbying and
educational organisation
that campaigns to achieve
equal civil rights for
transgender people in the
UK
A national charity that
raises awareness of
bullying and harassment
Signed off by Director of OD and HR and Chair of Staff Side-24th February 2010
www.dcsf.gov.uk
0870 000 2288
www.nat.org.uk
020 7814 6767
www.tht.org.uk
0845 122 1200
020 7812 1600
www.jobcentreplus.gov.uk
0121 452 5447
www.theworkfoundation.com
020 7976 3565
www.stonewall.org.uk
08000 502020
www.ace.org.uk
Age Concern England:
020 8765 7200
Age Concern Scotland:
0845 833 0200
Age Concern Wales:
0800 009966
www.pfc.org.uk
www.andreaadamstrust.org
01273 389412
39
Scottish Executive
One of Two websites for
the Scottish Executive
Department of Health
Scottish Health on the
Website for the Scottish
Web (SHOW)
Executive Department of
Health
The National Assembly for Wales
Wales
Department of Health and Ireland
Social Services and Public
Safety
Equality Commission for
Formed by merging of
Northern Ireland
CRE (NI), Fair
Employment Commission,
Equal Opportunities
Council (NI) and Disability
Council
Labour Relations Agency
Independent Body
responsible for assisting
employers, employees
and their representatives
to improve the conduct of
their industrial relations
and employment
practices.
Signed off by Director of OD and HR and Chair of Staff Side-24th February 2010
www.scotland.gov.uk
0845 741741
www.show.scot.nhs.uk
0131 556 8400
www.wales.gov.uk
0300 0603 300
www.dhsspsni.gov.uk
028 90520500
www.equalityni.org
028 90500600
www.lra.org.uk
028 90321442
40