Diversity, Equality and Inclusion

Question 1

What does Article 14 of the European Convention on Human Rights state?

Answer 1

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Question 2

What are the protected characteristics in the Equality Act 2010?

Answer 2

Age
Disability
Gender reassignment
Marriage and civil partnerships
Race
Religion or belief
Sex
Sexual Orientation
Pregnancy and Maternity

Question 3

Portelli v London Legal and Imaging Solutions Ltd [2019]

Answer 3

An employment tribunal held that the complainant had been subject to age discrimination based on a number of different behaviours by his employer. These included: promoting someone younger to his position while he was absent; showing unreasonable and hostile conduct towards him, for example, by dismissing him without a proper investigation and by not replying to his emails; writing him a letter that said he was ‘finding it difficult to keep up with the pace of change’ and suggesting that he should have basic-level remedial management training and that he had been employed for a long time and was set in his ways.

Question 4

Taylor v Jaguar Land Rover Ltd [2020]

Answer 4

An employment tribunal ruled that non-binary or gender-fluid persons can fall under the protected characteristic of gender reassignment. After working for 20 years at a company, the claimant in this case communicated to her colleagues that she identified as gender fluid/non-binary (having previously presented herself as a man) and, from that point, usually dressed in women’s clothing. This resulted in her suffering harassment and discrimination from work colleagues with little to no support from her managers when raising complaints about the situation. The claimant ultimately resigned from her position and issued claims of discrimination on the grounds of gender reassignment and constructive unfair dismissal, namely that she had no choice but to resign due to the way she had been treated at work. The tribunal considered that the legislation intended gender reassignment to be a spectrum moving away from birth sex, and that a person could be at any point on that spectrum. It was beyond any doubt that somebody in the situation of the claimant was (and is) protected by the legislation because they are on that spectrum and they are on a journey which will not be the same in any two cases. This decision determines that to be covered by the 2010 Act there is no requirement for a person to undergo medical treatment.

Question 5

What does ‘Nationality’ mean?

Answer 5

It has been held to include citizenship acquired by birth, and in Souster v BBC Scotland [2001] IRLR 150, it was held that an English applicant can be discriminated against by a Scottish employer.

Question 6

What does ‘Ethnic group’ mean?

Answer 6

It may include any group with a shared culture or history (Mandla v Dowell Lee [1983] 2 AC 548). Sikhs (Mandla v Dowell Lee [1983] 2 AC 548), Jews (Seide v Gillette Industries Ltd [1980] IRLR 427), Romany Gypsies (Commission for Racial Equality v Dutton [1989] QB 783) and Irish Travellers (O’Leary v Allied Domecq Inns Ltd, CL 950275 July 2000, Central London County Court) have all been held to be ethnic groups but Scots, Welsh and English are, however, not an ethnic group (Dawkins v Department of the Environment [1993] IRLR 284).

Question 7

What does ‘National origins’ mean?

Answer 7

It may overlap with nationality but the two concepts can be distinguished since ‘nationality’ is concerned with membership of a particular nation

‘national origins’ describes a person’s connection by birth with a nation (Ealing London Borough Council v Race Relations Board [1972] AC 342).

Question 8

What does ‘Racial group’ mean?

Answer 8

A group of people who have or share a colour, ethnic, or national origin or nationality.

A Minister of the Crown may amend the Act so as to add ‘caste’ to the current definition of ‘race’ (s. 9(5)). The term ‘caste’ denotes a hereditary, endogamous (marrying within the group) community associated with a traditional occupation and ranked accordingly on a perceived scale of ritual purity, e.g. the four classes (varnas) of Hindu tradition (the Brahmin, Kshatriya, Vaishya and Shudra communities). In Chandhok v Tirkey [2014] UKEAT 0190/14/1912, it was considered that ‘caste’ might come within s. 9(1)(c) since ‘ethnic origins’ had a wide and flexible ambit, including characteristics determined by ‘descent’.

Question 9

Eweida v United Kingdom (2013)

Answer 9

It was held that prohibiting a woman from visibly wearing a cross at work amounted to an interference with her right to manifest her Christian religion and this was in breach of the positive obligation under Article 9 of the European Convention on Human Rights (Right to freedom of thought, conscience and religion). However, in three other applications in the same case, which related to practising Christians, there was held to be no breach of either Article 9 or Article 14. (The rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as religion.)

These applications included: a nurse wearing a cross where the discrimination was based on health and safety rather than religious grounds; a registrar of births, deaths and marriages who believed that same-sex civil partnerships are contrary to God’s law and refused to carry out civil partnerships; a Relate counsellor who refused to work with couples on same-sex sexual practices.

Question 10

What is a ‘philosophical belief’?

Answer 10

It must be genuinely held; be a belief and not an opinion or viewpoint based on the present state of information available; be a belief as to a weighty and substantial aspect of human life and behaviour; attain a certain level of cogency, seriousness, cohesion and importance; and be worthy of respect in a democratic society, compatible with human dignity and not conflict with the fundamental rights of others. For example, a belief in ‘climate change’ affecting how a person lived his/her life is protected by the Act (Grainger plc v Nicholson [2010] 2 All ER 253).

Question 11

Direct discrimination

Answer 11

Discrimination because of a protected characteristic.

Question 12

Associative discrimination

Answer 12

Direct discrimination against someone because he/she is associated with another person with a protected characteristic.

Question 13

Indirect discrimination

Answer 13

A rule or policy that applies to everyone but disadvantages a person with a protected characteristic.

Question 14

Harassment

Answer 14

Behaviour deemed offensive by the recipient.

Question 15

Victimisation

Answer 15

Discrimination against someone because he/she made or supported a complaint under Equality Act legislation.

Question 16

Discrimination by perception

Answer 16

Direct discrimination against someone because others think he/she has a protected characteristic.

Question 17

Buchanan v The Commissioner of Police of the Metropolis [2016]

Answer 17

A seriously injured police motor cyclist was subject to the ‘Unsatisfactory Performance Procedure’ it was held that he had received unfavourable treatment arising from a disability. The tribunal was required to consider whether the treatment was justified, as it was not sufficient to ask whether the underlying procedure was justified.

Question 18

Lewisham London Borough Council v Malcolm [2008]

Answer 18

It was held that the previous legislative provisions no longer provided the degree of protection from disability-related discrimination that is intended for disabled people. This section is aimed at re-establishing an appropriate balance between enabling a disabled person to make out a case of experiencing a detriment which arises because of his/her disability, and providing an opportunity for an employer or other person to defend the treatment.

Question 19

PSED

Answer 19

The public sector equality duty, more commonly referred to as the general equality duty, requires organisations, including the police, to consider how they could positively contribute to the advancement of equality and good relations. It requires equality considerations to be reflected into the design of policies and the delivery of services, including internal policies, and for these issues to be kept under review.

Question 20

PSED: Aims

Answer 20

The first aim of the general equality duty is to have due regard to the need to eliminate discrimination, harassment, victimisation and any other conduct prohibited by the Act because of any of the protected characteristics.

However, the second and third aims of the duty (advancing equality of opportunity and fostering good relations) only apply in relation to persons who share a ‘relevant protected characteristic’.

The broad aim of the general equality duty is to integrate consideration of the advancement of equality into the day-to-day business of all bodies subject to the duty. It is intended to accelerate progress towards equality for all, by placing a responsibility on bodies subject to the duty to consider how they can work to tackle systemic discrimination and disadvantage affecting people with particular protected characteristics.

The second aim of the duty requires relevant bodies to have due regard to the need to minimise or remove disadvantages; to take steps to meet the different needs of people with different protected characteristics; and by encouraging participation in activities by those whose participation is disproportionately low.

Question 21

PSED: Specific Duties

Answer 21

Under the Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017 (SI 2017/353), there are three specific duties placed on public authorities: to publish equality information, to publish equality objectives and to publish gender pay gap information. These specific public sector equality duties are intended to enable public authorities better to perform, and demonstrate their compliance with, the general public sector equality duty. Under the duty to publish equality objectives, a public authority must prepare and publish one or more objectives that it thinks it should achieve to comply with any part of the general equality duty. Authorities must publish objectives at intervals of no greater than four years.

Question 22

The six ‘Brown principles’

Answer 22

• In order to have due regard, those in a body subject to the duty who have to take decisions that do or might affect people with different protected characteristics must be made aware of their duty to have ‘due regard’ to the aims of the duty.
• Due regard is fulfilled before and at the time a particular policy that will or might affect people with protected characteristics is under consideration as well as at the time a decision is taken. Due regard involves a conscious approach and state of mind. A body subject to the duty cannot satisfy the duty by justifying a decision after it has been taken. Attempts to justify a decision as being consistent with the exercise of the duty when it was not, in fact, considered before the decision are not enough to discharge the duty.
• The duty must be exercised in substance, with rigour and with an open mind in such a way that it influences the final decision. The duty has to be integrated within the discharge of the public functions of the body subject to the duty. It is not a question of ‘ticking boxes’. However, the fact that a body subject to the duty has not specifically mentioned s. 149 in carrying out the particular function where it is to have ‘due regard’ is not determinative of whether the duty has been performed. But it is good practice for the policy or decision-maker to make reference to s. 149 and any Code or other non-statutory guidance in all cases where s. 149 is in play. ‘In that way the decision maker is more likely to ensure that the relevant factors are taken into account and the scope for argument as to whether the duty has been performed will be reduced.’
• The duty is a non-delegable one. The duty will always remain the responsibility of the body subject to the duty. In practice another body may actually carry out the practical steps to fulfil a policy stated by a body subject to the duty. In those circumstances, the duty to have ‘due regard’ to the needs identified will only be fulfilled by the body subject to the duty if: (1) it appoints a third party that is capable of fulfilling the ‘due regard’ duty and is willing to do so; (2) the body subject to the duty maintains a proper supervision over the third party to ensure it carries out its ‘due regard’ duty.
• The duty is a continuing one.
• It is good practice for those exercising public functions to keep an accurate record showing that they had actually considered the general equality duty and pondered relevant questions. Proper record-keeping encourages transparency and will discipline those carrying out the relevant function to undertake the duty conscientiously. If records are not kept, it may make it more difficult, evidentially, for a public authority to persuade a court that it has fulfilled the duty imposed by s. 149.

Question 23

Bracking v Secretary of State for Work and Pensions [2013]

Answer 23

The Court of Appeal approved the ‘Brown principles’ as being applicable to s. 149, as well as setting out some additional principles that are relevant for a public body in fulfilling its duty to have ‘due regard’ to the aims set out in the general equality duty.