Key legislation - Equality Act 2010
The Equality Act 2010 brings together, harmonises and in some respects extends the current equality law. It aims to make it more consistent, clearer and easier to follow in order to make society fairer.Government Equalities Office 2010
Equalities legislation has replaced anti-discrimination legislation. This area of law is constantly evolving as society recognises new areas of inequality, and over the last 30 years a number of laws have been passed in response to changing public perceptions and the development of human rights law.
Anti-discriminatory practice is fundamental to the ethical basis of care provision and critical to the protection of people's dignity. The Equality Act protects those receiving care and the workers that provide it from being treated unfairly because of any characteristics that are protected under the legislation. The ‘protected characteristics’ are:
- gender reassignment
- pregnancy and maternity
- race – this includes ethnic or national origins, colour or nationality
- religion or belief – this includes lack of belief
- sexual orientation.
(Government Equalities Office 2010)
Direct discrimination occurs when someone is treated less favourably than someone else in similar circumstances on the grounds of a protected characteristic. Indirect discrimination occurs when a condition or requirement is applied equally to everyone but some are unable to comply because of a protected characteristic. This would be unlawful unless the condition or requirement is objectively justifiable.
The Equality Act replaces previous anti-discrimination legislation and regulations including:
- The Equal Pay Act 1970
- The Sex Discrimination Act 1975
- The Race Relations Act 1976
- The Disability Discrimination Act 1995
- The Equality Act 2006.
Regulations that prohibit discrimination in employment:
- Employment Equality (Sexual Orientation) Regulations 2003
- Employment Equality (Religion or Belief) Regulations 2003
- Employment Equality (Age) Regulations 2006 – prohibit discrimination in employment on grounds of age for those of working age, it is irrelevant whether the discrimination is because you are young or old.
People in employment are already protected against age discrimination. A ban on age discrimination in the provision of services and public functions for adults is included in the Equalities Act and was implemented from October 2012.
There are no specific exceptions to the ban on age discrimination for health or social care services. This means that any age-based practices by the NHS and social care organisations would need to be objectively justified, if challenged.Home Office guidance
Carers provide care for a relative, friend or neighbour in need of support on an unpaid basis. The law protects carers from discrimination through association with the person they care for. Carers are protected from discrimination at work. They have the right to request flexible working so that they can manage their caring responsibilities. They have the right to time off in emergencies or to deal with unforeseen matters, however there is no right to be paid for this time. Carers are also protected when they receive goods, services and facilities. It is unlawful for those providing services, such as shops or transport, to treat someone less favourably because of their association with a person with a ‘protected characteristic’.
There are legal responsibilities to carers and some of these are contained in the following Acts:
- Carers (Recognition and Services) Act 1995
- Carers and Disabled Children Act 2000
- Carers (Equal Opportunities) Act 2004
- Mental Health Acts 1983 and 2007 and Mental Capacity Act 2005.
There may be circumstances in which responsibilities to carers appear to conflict with the human rights of the cared-for person. If a person lacks the capacity to make a decision or to consent to care and treatment, then the provider of health or social care services must act in the best interests of that person.
A professional making a best interests decision must consult relatives or friends interested in the person’s welfare, and take account of their views. If there is a conflict among the views of relatives or friends – or between them and involved professionals – about what would be in the best interests of the person, this must be resolved. The best practice is to seek independent advocacy and separate practitioners for both parties. Mediation or family group conferences may be helpful in resolving the conflict.
- ACAS leaflet on the right to apply for flexible working
- Home Office Information - Equality Act 2010: What do I need to know as a carer?
Public sector Equality Duty
The Equality Act places an Equality Duty on public bodies; it came into force on 5 April 2011. The Equality Duty intends to ensure that public bodies are proactive in eliminating unlawful discrimination, advancing equality of opportunity and fostering good relations. They must consider equality issues in everything they do with regard to the protected characteristics.
This is very relevant to dignity in care as it means the local authority has a duty to consider the diverse needs of the individuals they serve, minimising disadvantage and ensuring the inclusion of under-represented groups. It must ensure that those organisations carrying out duties on its behalf also comply with this duty. Service providers must comply with equalities law and the commissioning authority must ensure providers are able to meet the requirements of the law.
The legal mechanisms for enforcing equalities law
The Equality Act applies to all those providing goods, services and facilities in Great Britain. An individual claiming discrimination can go to the employment tribunal or county court. The judge would decide whether discrimination has occurred. The Equality and Human Rights Commission has some enforcement powers in certain situations under Equality Act. The Equality and Human Rights Commission (EHRC) is a non-departmental public body which oversees equality and human rights law and practice. It has the ability to investigate public bodies and go to judicial review if necessary.
Discrimination in employment can be taken to an employment tribunal. The time limit for starting the case is normally three months from the event or from when the person’s employment ended.
If the discrimination takes place outside the employment field, for instance in connection with the provision of care services, the case can be brought to the county court. Proceedings have to be started within six months of the last act complained of, or eight months in the case of discrimination in education. The court can order damages to be paid, including compensation for distress to feelings. It can also order an injunction requiring the discriminator to do something or stop doing certain acts.