Diversity - The Law

There are several pieces of legislation that combat discrimination and promote equal opportunities and diversity. These are: Equal Pay Act 1970

• Sex Discrimination Act 1975
• Race Relations Act 1976
• Disability Discrimination Act 1995
• Employment Rights Act 1996
• Race Relations (Amendment) Act 2000
• Employment Act 2002
• Race Relations Act 1976 (Amendment) Regulations 2003
• Religion or Belief Regulations 2003
• Sexual Orientation Regulations 2003
• (Age Discrimination Regulations to be introduced in 2006).

Guidance on the legislation can be obtained from the relevant Commission and further general guidance on good practice in the workplace from Acas.

Legal definitions

Disability

What is a disability?

For the purposes of the Disability Discrimination Act, disability is defined as a physical or mental impairment which has a substantial and long term adverse effect on a person's ability to carry their normal day-to-day activities.

When does discrimination occur?

Direct discrimination occurs when a person is treated less favourably than another in relation to recruitment, selection, training, promotion, selection for redundancy or dismissal on the grounds of their disability.

Indirect discrimination occurs where there is less favourable treatment for a reason related to a person's disability and the treatment is not justified.

Discrimination also occurs if an employer or service provider fails to comply with a duty to make a reasonable adjustments in relation to a disabled person. A failure to make reasonable adjustments cannot be justified.

What does the Disability Discrimination Act do?

The Disability Discrimination Act 1995 makes it unlawful for employers to discriminate against current or prospective workers who have a disability or who have had a disability in the past. The employer also has a duty under the Disability Discrimination Act to make reasonable adjustments to either the workplace or workstation to help the disabled person cope in their working environment.

Harassment

What is harassment?

It occurs when one person's or a group's behaviour towards another gives offence to a person's dignity or which creates a hostile or degrading working environment. For example, such behaviour may take the form of remarks designed to embarrass, inappropriate jokes or ridicule, unwelcome physical contact, suggestions or demands for sexual favours, racial shunning or segregation or racial or homophobic abuse.

What is the legal position?

Employers can be liable for the actions of their workers at work or in a work-related situation (e.g. a social event) unless they can prove that they have taken all reasonable steps to prevent harassment occurring. A worker could make a claim of harassment to an employment tribunal under the Sex Discrimination Act, Race Relations Act, Disability Discrimination Act, the Employment Equality (Sexual Orientation Regulations, and the Employment Equality (Religion or Belief) Regulations.

Race Discrimination

What is race discrimination?

Under the Race Relations Act 1976 it is unlawful in employment to discriminate, either directly or indirectly, on the grounds of race, colour, nationality or ethnic origins.

What is direct race discrimination?

Direct discrimination occurs when a person is treated less favourably than another in relation to recruitment, selection, training, promotion, selection for redundancy and dismissal etc, on the grounds of their race, colour, nationality or ethnic origin.

What is indirect discrimination?

This occurs where there is a requirement, condition or practice applied to all, which appears plausible and motivated by innocent considerations, but which turns out to have a disproportionately adverse impact on members of a particular ethnic group and is not justifiable. For example, requiring English as a "mother tongue" or "first language".

What is a 'genuine occupational qualification'?

When employers wish to recruit someone from a certain ethnic group because the essential nature of the job demands it, for example, for certain welfare work within specific communities, or for reasons of authenticity for acting jobs.

Sex Discrimination

What is direct discrimination?

When a person is treated less favourably on the grounds of their sex in relation to recruitment, selection, training, promotion, selection for redundancy and dismissal etc.

What is 'indirect discrimination'?

This occurs where there is a requirement, condition or practice applied to all, which appears plausible and motivated by innocent considerations, but nevertheless turns out to have a disproportionate adverse effect on a particular group i.e. normally women and is not justifiable. For example, a requirement to be above a certain height may be indirectly discriminatory because fewer women than men could fulfil such a requirement.

When can employers lawfully specify that they require a person of a certain sex?

A requirement for a person of a particular sex will only be permitted in limited circumstances where there is 'a genuine occupational reason'. For example, for reasons of privacy and decency in a single sex establishment, such as a boarding school, or for specific essential purposes such as for modelling or acting jobs.

Age Discrimination

Legislation is set to be implemented outlawing discrimination on the basis of age in October 2006.

Sexuality Discrimination

What is direct discrimination?

Under the Employment Equality (Sexual Orientation) Regulations 2003 discrimination in employment on the grounds of sexual orientation is unlawful. This covers people whether they are gay, lesbian, bisexual or heterosexual.

What is 'indirect discrimination'?

This occurs where there is a requirement, condition or practice applied to all, which appears plausible and motivated by innocent considerations, but nevertheless turns out to have a disproportionate adverse effect on a particular group and is not justifiable. For example a pub advertises for 2 people to manage a bar as suitable for a "husband and wife team", this indirectly discriminates against same sex partners.

Criminal Convictions

What's the legal position on ex-offenders?

It is common for potential employers to ask candidates to give details of any previous convictions. This may be in order to comply with certain regulatory requirements or to assess suitability for the job.

The Rehabilitation of Offenders Act 1974 allows an individual who has been convicted of certain offences to treat the conviction as though it had never happened. These are known as 'spent' convictions . In general a conviction cannot become spent if it incurred:

• a sentence of more than two and a half years;
• a life sentence;
• preventative detention,
• or its equivalent for young offenders.

The Act also does not apply to certain classes of occupations and offices, where spent convictions considered by employers. In other words spent convictions may be a ground for refusing someone employment or dismissing him or her if the job is within the excepted classes of employment and professions. These include employment involving supervision or contact with children, young persons and the vulnerable.

However in general, anyone who has been convicted of a criminal offence, and who has been sentenced to two and a half years imprisonment or less, may after a period of time known as the"rehabilitation period" treat that conviction as though it never took place, provided no further conviction for a serious offence has taken place in the meantime.

This means that an employer may only ask a candidate for employment if they have any 'unspent' convictions unless they are included in the Exceptions Order to the Rehabilitation of Offenders Act 1974. The employee is not obliged to disclose those that are treated as spent.

The Act also makes it unlawful for an employer to discriminate against an employee, or dismiss him because of a spent conviction.

Religion and Belief

What is direct discrimination?

Under the Employment Equality (Religion or Belief) Regulations 2003 discrimination in employment on the grounds of religion or philosophical belief is unlawful.

What is 'indirect discrimination'?

This occurs where there is a requirement, condition or practice applied to all, which appears plausible and motivated by innocent considerations, but nevertheless turns out to have a disproportionate adverse effect on a particular group and is not justifiable. For example, an employer who announces an absolute "no headgear" rule for all his staff may indirectly discriminate against Sikh staff who wish to wear turbans for religious reasons.