LRD Booklets October 2018

Equality Law at Work 2018 - a guide for trade unions and working people

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Introduction

Introduction
 [page 6] (379 words)

Achieving equality at work and across society is a core value shared across the union movement. Everyone has the right to be treated with dignity and ...
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Chapter 1

1. Equality laws — a summary
 [ch 1: pages 7-8] (448 words)

The main source of equality rights in the UK workplace is the Equality Act 2010 (EA 10) and this booklet focuses on those rights. However, the EA 10 ...
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European Union 
 [ch 1: pages 8-9] (558 words)

European Convention on Human Rights 
 [ch 1: pages 9-10] (299 words)

International Labour Organisation
 [ch 1: page 10] (105 words)

Enforcement 
 [ch 1: page 10] (304 words)

Protected characteristics 
 [ch 1: page 11] (88 words)

Who is protected 
 [ch 1: page 11] (103 words)

Who is not protected? 
 [ch 1: page 11] (63 words)

What conduct is prohibited by the EA 10?
 [ch 1: pages 11-12] (127 words)

Equal pay 
 [ch 1: page 12] (38 words)

Treating workers more favourably 
 [ch 1: page 12] (51 words)

Who is liable?
 [ch 1: page 12] (224 words)

Remedies
 [ch 1: page 13] (153 words)

Public sector equality duty 
 [ch 1: page 13] (126 words)

Chapter 2

2. The protected characteristics 
 [ch 2: page 14] (246 words)

Equality law is not about general unfairness or poor treatment by an employer. Instead, it is about targeting inequality across a set of specific ...
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Age 
 [ch 2: pages 14-15] (305 words)

Justifying direct age discrimination 
 [ch 2: pages 15-16] (499 words)

Disability
 [ch 2: page 16] (131 words)

Definition of disability
 [ch 2: pages 17-19] (1,043 words)

Past disability
 [ch 2: page 19] (77 words)

Deemed disability
 [ch 2: page 19] (149 words)

Recurring or fluctuating conditions
 [ch 2: page 19] (116 words)

Progressive conditions
 [ch 2: page 20] (292 words)

Correction of impairment by medication or treatment [ch 2: page 20] (89 words)

Gender reassignment 
 [ch 2: pages 20-21] (417 words)

Marriage and civil partnership 
 [ch 2: pages 21-22] (441 words)

Race (including caste)
 [ch 2: pages 22-23] (504 words)

Religion or belief 
 [ch 2: pages 23-25] (951 words)

Sex or gender 
 [ch 2: page 26] (138 words)

Pregnancy and maternity
 [ch 2: page 26] (308 words)

Sexual orientation
 [ch 2: page 27] (109 words)

Chapter 3

3. Who can claim? 
 [ch 3: pages 28-29] (418 words)

Nearly everyone in the workplace will qualify for protection from discrimination, harassment and victimisation under the Equality Act 2010 (EA 10). ...
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Who is a worker?
 [ch 3: pages 29-31] (1,131 words)

Agency workers
 [ch 3: page 31] (104 words)

Personal service companies
 [ch 3: page 32] (224 words)

The effect of illegality on equality rights
 [ch 3: pages 32-33] (637 words)

Chapter 4

4. Direct discrimination
 [ch 4: page 34] (59 words)

The EA 10 prohibits the following types of discrimination:
 ...
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Direct discrimination 
 [ch 4: page 34] (284 words)

Hidden or subconscious discrimination 
 [ch 4: page 35] (300 words)

Associative and perceptive direct discrimination 
 [ch 4: pages 35-36] (349 words)

What is less favourable treatment
 [ch 4: page 36] (214 words)

The need for a comparator
 [ch 4: page 37] (92 words)

Suffering a detriment
 [ch 4: page 37] (148 words)

Direct pregnancy and maternity discrimination 
 [ch 4: pages 37-40] (1,549 words)

Surrogacy 
 [ch 4: page 41] (152 words)

IVF
 [ch 4: page 41] (247 words)

No defence to direct discrimination 
 [ch 4: page 42] (146 words)

Specific rights to treat categories of worker more favourably 
 [ch 4: pages 42-43] (365 words)

Chapter 5

5. Harassment 
 [ch 5: pages 44-46] (1,164 words)

Like the term “discrimination”, “harassment” is often used loosely to refer to bullying behaviour. However, it has a specific legal meaning ...
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Sexual harassment 
 [ch 5: pages 46-47] (384 words)

Third party harassment 
 [ch 5: page 48] (140 words)

Chapter 6

6. Victimisation 
 [ch 6: pages 49-51] (1,052 words)

The term “victimisation” has a specific, narrow legal meaning when used in the Equality Act 2010 (EA 10). The purpose of laws outlawing ...
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Chapter 7

7. Indirect discrimination 
 [ch 7: pages 52-53] (528 words)

Indirect discrimination happens when a rule or practice at work (or a change to an existing rule or practice) appears to treat everyone equally but ...
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Provision, criterion or practice 
 [ch 7: page 53] (346 words)

Defence to indirect discrimination 
 [ch 7: pages 54-55] (677 words)

Chapter 8

8. Reasonable adjustments and discrimination arising from disability
 [ch 8: page 56] (86 words)

Under the EA 10, direct and indirect discrimination, harassment and victimisation because of disability are all unlawful (see Chapters 4 to 7). 
 ...
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Knowledge of disability 
 [ch 8: pages 56-58] (791 words)

The duty to make reasonable adjustments 
 [ch 8: pages 58-60] (860 words)

Auxiliary aids 
 [ch 8: page 60] (145 words)

Physical features 
 [ch 8: page 60] (91 words)

Is the adjustment ‘reasonable’?
 [ch 8: pages 60-62] (914 words)

Discrimination ‘arising from’ disability 
 [ch 8: pages 62-65] (1,338 words)

Chapter 9

9. Liability of employers and individual workers 
 [ch 9: pages 66-67] (730 words)

The design of the EA 10 incentivises employers to adopt a zero tolerance approach to all forms of discrimination, harassment and victimisation. ...
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Course of employment
 [ch 9: pages 67-68] (505 words)

Liability for discrimination by agents 
 [ch 9: pages 68-70] (724 words)

Liability of individual discriminators 
 [ch 9: page 70] (105 words)

Vicarious liability of unions 
 [ch 9: pages 70-71] (418 words)

Chapter 10

10. Proving discrimination 
 [ch 10: pages 72-74] (1,263 words)

Courts and tribunals recognise that employers rarely admit to discrimination, even to themselves, and that this can make proving it difficult. ...
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Asking questions about suspected discrimination
 [ch 10: page 75] (135 words)

Making a data subject access request 
 [ch 10: page 75] (133 words)

‘Without prejudice’ and legal privilege 

 [ch 10: pages 75-76] (466 words)

Chapter 11

11. Equality and diversity policies
 [ch 11: pages 77-79] (803 words)

Clear, strongly worded equality and diversity policies are a very important first step for employers to take towards a workplace free of ...
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Monitoring and review 
 [ch 11: pages 79-80] (326 words)

Equality monitoring and data protection 
 [ch 11: page 80] (266 words)

Chapter 12

12. Equality in recruitment 
 [ch 12: page 81] (153 words)

There is ample evidence of discrimination, in particular race discrimination, in recruitment in the UK. In 2009, the Department for Work and Pensions ...
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Advertising jobs
 [ch 12: pages 81-82] (364 words)

Positive action
 [ch 12: page 82] (118 words)

The job application process
 [ch 12: page 82] (157 words)

The selection process 
 [ch 12: pages 82-83] (428 words)

Positive discrimination in recruitment
 [ch 12: pages 83-84] (184 words)

Immigration checks 
 [ch 12: pages 84-85] (368 words)

Health assessments for job applicants 
 [ch 12: page 85] (350 words)

References 
 [ch 12: pages 85-86] (95 words)

Criminal records checks 
 [ch 12: pages 86-87] (515 words)

Chapter 13

13. Pay, promotion, appraisal and performance management 
 [ch 13: page 88] (422 words)

It is against the law (direct discrimination) for employers to pay people less or give them worse terms and conditions because of a protected ...
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Pay and age discrimination — statutory exceptions 
 [ch 13: page 81] (365 words)

Pensions and same-sex couples
 [ch 13: pages 89-90] (109 words)

Equality-based challenges to public sector pension cuts
 [ch 13: pages 90-91] (618 words)

Gender inequality in pay — the equal pay regime
 [ch 13: pages 91-93] (723 words)

Genuine material factor defence 
 [ch 13: pages 93-94] (508 words)

Length of service, time limits and TUPE
 [ch 13: page 94] (257 words)

Asking questions about unequal pay
 [ch 13: page 94] (120 words)

Equal pay audits 
 [ch 13: pages 94-95] (94 words)

Compulsory gender pay gap reporting 
 [ch 13: pages 95-96] (751 words)

Equality in promotion processes 
 [ch 13: pages 96-97] (552 words)

Positive action in promotion
 [ch 13: page 98] (111 words)

Indirect discrimination in promotion 
 [ch 13: page 98] (73 words)

Demonstrating discrimination in decisions about promotion 
 [ch 13: pages 98-99] (230 words)

Staff appraisal and performance management 
 [ch 13: page 99] (182 words)

Demonstrating discrimination in appraisal and performance management 
 [ch 13: pages 99-100] (194 words)

Chapter 14

14. Absence management and disciplinary procedures
 [ch 14: pages 101-102] (777 words)

Equality issues can be very important when challenging absence management procedures. 
 ...
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Disciplinary and grievance processes 
 [ch 14: pages 103-104] (700 words)

Overlapping discipline and grievance processes 
 [ch 14: pages 104-105] (617 words)

Chapter 15

15. Adjustments to working hours and work organisation 
 [ch 15: page 106] (120 words)

If an employer refuses someone’s request to go part-time, this can amount to sex discrimination. For example, in Shaw v CCL Limited [2008] IRLR ...
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Part-time, temporary and zero hours work
 [ch 15: page 106] (162 words)

Shift patterns 
 [ch 15: pages 106-107] (396 words)

Relocation
 [ch 15: pages 107-108] (243 words)

Job shares
 [ch 15: page 108] (154 words)

Homeworking 
 [ch 15: pages 108-109] (234 words)

Shared parental leave 
 [ch 15: page 109] (455 words)

Breastfeeding at work
 [ch 15: page 110] (410 words)

Menopause 
 [ch 15: page 111] (274 words)

Adjustments to working hours and disability 
 [ch 15: page 111] (102 words)

Adjustments and religious observance
 [ch 15: pages 111-112] (300 words)

Chapter 16

16. Language and dress codes 
 [ch 16: pages 113-114] (509 words)

Employers who set rules about language at work can commit direct and indirect race discrimination. However, the EHRC Code of Practice recognises that ...
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Dress and religious observance 
 [ch 16: pages 114] (391 words)

European Court of Justice rulings on religious dress at work
 [ch 16: pages 116] (273 words)

Dress and sex discrimination 
 [ch 16: pages 115] (376 words)

Chapter 17

17. Ending the employment relationship
 [ch 17: pages 117] (36 words)

This Chapter looks at discrimination law in the context of dismissal, focusing on redundancy, long-term sickness absence and retirement. Disciplinary ...
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Dismissal
 [ch 17: page 117] (148 words)

Redundancy
 [ch 17: page 117] (177 words)

Selection pool
 [ch 17: page 118] (89 words)

Selection criteria and methods 
 [ch 17: page 118] (153 words)

Voluntary redundancy 
 [ch 17: pages 118-119] (214 words)

Redundancy selection and disability 
 [ch 17: pages 119-120] (720 words)

Redundancy selection and age 
 [ch 17: pages 121-122] (566 words)

Redundancy selection and sex, pregnancy and maternity discrimination
 [ch 17: pages 122-124] (786 words)

Race discrimination in redundancy selection 
 [ch 17: page 124] (266 words)

Dismissals for long-term sickness absence 
 [ch 17: pages 124-125] (470 words)

Retirement 
 [ch 17: page 126] (237 words)

Chapter 18

18. Bringing a claim for discrimination 
 [ch 18: page 127] (344 words)

Claims for discrimination, harassment and victimisation at work are brought in the employment tribunal.
 ...
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Time limits 
 [ch 18: pages 127-128] (159 words)

No tribunal fees 
 [ch 18: page 128] (62 words)

Continuing discrimination 
 [ch 18: page 128] (94 words)

Extending time to bring a discrimination claim
 [ch 18: page 128] (81 words)

Length of service 
 [ch 18: page 128] (29 words)

Claims against individuals 
 [ch 18: page 128] (39 words)

Recommendations 
 [ch 18: pages 128-129] (143 words)

Compensation
 [ch 18: page 129] (376 words)

Injury to feelings 
 [ch 18: page 130] (279 words)

Aggravated damages
 [ch 18: page 130] (65 words)

Personal injury
 [ch 18: page 130] (45 words)

Exemplary (punitive) damages
 [ch 18: page 131] (31 words)

Launch of inquiry into enforcement of the Equality Act 2010
 [ch 18: page 131] (156 words)

Chapter 19

19. Using the public sector equality duty 
 [ch 19: page 132] (386 words)

The public sector equality duty (PSED) is an important legal tool available to unions when combatting inequality. This Chapter highlights the key ...
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Who is subject to the PSED?
 [ch 19: pages 132-133] (75 words)

The specific duties 
 [ch 19: page 133] (43 words)

Specific duties in England 
 [ch 19: page 133] (101 words)

Specific legal equality duties in Scotland 
 [ch 19: pages 133-134] (299 words)

Specific legal equality duties in Wales 
 [ch 19: page 134] (205 words)

The public sector equality duty in Northern Ireland 
 [ch 19: page 135] (96 words)

Assessing equality impact 
 [ch 19: page 135] (297 words)

EHRC reviews effectiveness of PSED 
 (153 words)

Remedies 
 [ch 19: page 136] (69 words)

Chapter 20

20. Other legal frameworks to support equality bargaining 
 [ch 20: page 137] (234 words)

Standard setting in public procurement is an important mechanism for mainstreaming equality. Unions such as public services union UNISON target the ...
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Using statutory information rights 
 [ch 20: pages 137-138] (327 words)

Freedom of information requests
 [ch 20: page 138] (53 words)

Further information

Further information 
 [ch 20: page 139-140] (530 words)

Labour Research Department: LRD publishes regular booklets on legal issues of interest to working people, approached from a trade union perspective. ...
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