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The legal context

An overview of the Equality Act 2010

As a clinical teacher you will want to ensure that you understand the legal framework regarding equality, and that you can relate this framework to your everyday role. The UK framework has two elements to it: the anti- discriminatory framework (which gives individuals a route to raise complaints of discrimination around employment and service delivery) and the public duties (which place a proactive duty on organisations to address institutional discrimination).

These principles are embedded within the Equality Act 2010.

Under the Equality Act 2010 people are protected from discrimination on the basis of ‘protected characteristics’.  In relation to both employment and services and functions the relevant ‘protected characteristics’ are:

Disability:

A person has a disability if he or she has a physical or mental impairment which has a substantial and long-term adverse effect on that person's ability to carry out normal day-to-day activities.

Gender Reassignment:

A person who is proposing to, or is currently undergoing, or who has undergone a process to change their gender.

Pregnancy and Maternity:

Pregnancy is the condition of being pregnant or expecting a baby.  Maternity refers to the period after the birth and is linked to maternity leave in the employment context.  In the non-work context, protection against maternity discrimination is for 26 weeks after giving birth and this includes treating a woman unfavourably because she is breastfeeding.

Race:

Refers to a group of people defined by their race, colour and nationality, ethnic or national origins.

Religion or Belief:

Religion includes any religion.  It also includes a lack of religion (for instance service users and employees are protected if they do not follow a certain religion).  Belief includes religious and philosophical beliefs including lack of belief (e.g. Atheism).  Generally, a belief should affect your life choices or the way you live.

Sex:

A man or a woman, i.e. being male or female.

Sexual Orientation:

Defined as a person's sexual attraction towards their own sex (gay or lesbian), the opposite sex (heterosexual) or to both sexes (bisexual).

 

 

In relation to employment only, the ‘protected characteristics’ also cover:

Age:

The Equality Act protects people of all ages.  However, if different treatment because of age can be justified and is a proportionate means of meeting a legitimate aim, this will not be considered discrimination.  Employers are allowed to have a default retirement age of 65 until April 2011.  The prohibition on age related discrimination also covers training and education.  A wider prohibition on age related discrimination in the context of services and functions is currently being reviewed and we anticipate this will come into force in 2012.

Marriage and Civil Partnerships:

In the Equality Act marriage and civil partnership means someone who is legally married or in a civil partnership. Marriage can either be between a man and a woman, or between partners of the same sex. Civil partnership is between partners of the same sex..  Single people are not protected.

 

Key legal principles

Direct discrimination:

This occurs when someone is treated less favourably than another person because of a protected characteristic.

Discrimination by association:

This is a form of direct discrimination and occurs when a person is treated less favourably because they are linked or associated with a person who has a protected characteristic.

Perception based discrimination:

This is a form of direct discrimination and occurs when a person is treated less favourably because others wrongly think they have a protected characteristic and treat them on the basis of such perception.

Indirect discrimination:

Indirect discrimination occurs when there is a rule, a policy or a practice that applies to everyone but particularly disadvantages people who share a protected characteristic.  Indirect discrimination can be justified if the rule, policy or practice can be shown to meet a legitimate objective in a fair, balanced and reasonable way, i.e. that it is a proportionate means of achieving a legitimate aim.

Harassment:

Harassment is unwanted conduct related to a protected characteristic, which has the purpose or the effect of violating a person’s dignity, or which is hostile, degrading, humiliating or offensive.  Deciding what counts as harassment is a matter of reasonableness and people must exercise common sense.

Third Party Harassment:

Applies to age, disability, gender, gender re-assignment, race, religion or belief and sexual orientation.  The Equality Act makes employers potentially liable for harassment of your employees by people (third parties) who do are not employed by you, e.g. customers or contract workers.

Victimisation:

Victimisation occurs when a person is treated badly because they are making a complaint, or supporting a complaint or are raising a grievance about discrimination, or they are suspected of doing so.

Discrimination arising from disability:

An organisation must not treat a disabled person unfavourably because of something connected to their disability, where they cannot show that what they are doing is objectively justified.

Duty to make ‘reasonable adjustments’

The Equality Act recognises that, in order for organisations to ensure equality outcomes are met for disabled people, they may need to consider changing the way in which they deliver services and employ disabled people, for instance by providing extra equipment or removing physical barriers.

The duty to make reasonable adjustments aims to ensure that organisations consider the ways in which they provide services and facilities to disabled people in order to ensure that disabled people can use services and facilities on the same basis as non-disabled people.

This duty is ‘anticipatory’.

This means organisation should not wait until disabled people want to use their services, instead they should think in advance about what ‘reasonable adjustments’ disabled people with a range of impairments may reasonably need.

Positive action

It is important to recognise that some people with protected characteristics are disadvantaged or under-represented in services and workforces.  They may have particular needs linked to protected characteristics or may need additional help or encouragement to ensure they are provided with the same opportunities as others.

The Equality Act enables organisations to take proportionate steps to help people overcome their disadvantages or to meet specific needs.  As a service provider or employer you can use positive action where you believe one of these conditions apply:

1. People who share a protected characteristic suffer disadvantage associated with that characteristic;

2. People who share a protected characteristic have needs that are different from the needs of people who do not have that characteristic; or

3. Participation in an activity is disproportionately low.

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