Anticipatory duty

For service providers, the duty to make reasonable adjustments is anticipatory; within reason, it is owed to all potential disabled customers and not just to those who are known to the service provider.

Direct discrimination

This is when you are treated worse than another person or other people because:

  • You have a protected characteristic.
  • Someone thinks you have that protected characteristic. This is known as discrimination by perception or
  • You are connected to someone with that protected characteristic. This is known as discrimination by association.

Your circumstances must be sufficiently similar to the circumstances of the person being treated better for a valid comparison to be made.

If you cannot point to another person who has been treated better, it is still direct discrimination if you can show that a person who did not have your protected characteristic would have been treated better, in similar circumstances.

To be unlawful, the treatment must have happened in one of the situations that are covered by the Equality Act.  e.g. in the workplace or when you are receiving goods or services.

It is possible to be discriminated against by someone who shares the same protected characteristic as you.

If you have been treated worse due to your age, this may be permitted if the organisation or employer can show that there was a good reason for the difference in treatment (see objective justification below). If you are treated worse due to any other protected characteristic, it is unlawful direct discrimination whether or not the organisation or employer has a reason for it.

Duty to make reasonable adjustments

Where a disabled person is at a substantial disadvantage in comparison with people who are not disabled, there is a duty to take reasonable steps to remove that disadvantage by (i) changing provisions, criteria or practices, (ii) altering or removing a physical feature or providing a reasonable alternative means of avoiding the feature and (iii) providing auxiliary aids.

An adjustment should, as far as possible, remove or reduce any disadvantage faced by a disabled worker or service user etc.

Whether an adjustment is reasonable depends on all the circumstances including:

  • how effective the change will be in avoiding the disadvantage you would otherwise experience because of your disability.
  • how practical it is for the organisation to make it.
  • the cost.
  • the organisation’s resources and size.
  • whether financial support is available to help the organisation make it.

The test of what is reasonable is ultimately an objective test and not simply a matter of what you may personally think is reasonable.

Harassment

Harassment is unwanted behaviour which you find offensive where the other person’s behaviour is because:

  • you have a protected characteristic.
  • where there is any connection with a protected characteristic (for example you are treated as though you have a particular characteristic, even if the other person knows this isn’t true).  

Unwanted behaviour could include spoken or written abuse, offensive emails, tweets or comments on social networking sites, images and graffiti, physical gestures, facial expressions and banter that is offensive to you.

Anything that is unwelcome to you is unwanted. You don’t need to have previously objected to it.

The unwanted behaviour must have the purpose or effect of violating your dignity or creating a degrading, humiliating, hostile, intimidating or offensive environment for you.

To be unlawful, the treatment must have happened in one of the situations that are covered by the Equality Act, for example in the workplace or when you are receiving goods or services.

Indirect discrimination

In summary, indirect discrimination occurs when there's a policy which applies in the same way for everybody but which has an effect which disadvantages a group of people who share a protected characteristic, and you are disadvantaged as part of this group. If this happens, the person or organisation applying the policy must justify it.

A ‘policy’ can include a practice, a rule or an arrangement.  

It makes no difference whether anyone intended the policy to disadvantage you or not.  

Looking separately at each component needed to establish indirect discrimination:

  • there must be a policy which an organisation is applying equally to everyone (or to everyone in a group that includes you) and
  • the policy must disadvantage people with your protected characteristic when compared with people without it, and
  • you must be able to show that it has disadvantaged you personally or that it will disadvantage you, and
  • the organisation can’t show that there is a good reason for applying the policy despite the level of disadvantage to people with your protected characteristic (known as objective justification). If the organisation can justify its policy, it is not indirect discrimination.

Objective justification

'Objective justification’ provides a defence for applying a policy that would otherwise be unlawful indirect discrimination. It also provides a defence for using an age-based rule or practice that would otherwise be direct age discrimination.

To rely on the 'objective justification' defence, the employer or service provider or other organisation must show that its policy (or age-based rule) was for a good reason – that is, 'a proportionate means of achieving a legitimate aim'.

Some key points are:

  • The aim must be a real, objective consideration, and not in itself discriminatory. For example, ensuring the health and safety of others would be a legitimate aim.
  • If the aim is simply to reduce costs because it is cheaper to discriminate, this will not be legitimate.
  • Working out whether the means is ‘proportionate’ is a balancing exercise. Does the importance of the aim outweigh any discriminatory effects of the unfavourable treatment?
  • There must be no alternative measures available that would meet the aim without too much difficulty and would avoid such a discriminatory effect. If proportionate alternative steps could have been taken, the policy (or age-based rule) is unlikely to be justified.

Occupational requirement

Where having a protected characteristic is an occupational requirement, certain jobs can  be reserved for people with that protected characteristic (for example women support workers in women's refuges; ministers of religion).

However the organisation must be able to show that applying the occupational requirement is a proportionate means of achieving a legitimate aim (see objective justification above).

Positive action

In the workplace these are steps that an employer can take to encourage people from groups sharing a protected characteristic who have different needs or a past track record of disadvantage or low participation – for example, to apply for jobs or to be developed for promotion. These steps might include providing work experience, mentoring or training.

When an organisation is providing services, these are steps it can take to enable or encourage people from groups who share a protected characteristic to participate, or overcome a particular disadvantage that they have. Positive action is lawful if there is evidence of a need – for example, the level of participation by people from that group is lower than could reasonably be expected.

In both cases the steps that are taken must be a proportionate means of achieving one of these legitimate aims (see objective justification above).

Workplace

The Equality Act protects against discrimination in the workplace when you are:

  • Applying for a job.
  • Offered a job on certain terms and conditions.
  • Seeking opportunities for training and promotion.
  • Trying to access work-related benefits.
  • Going through disciplinary / grievance procedures.
  • Dealing with your working environment.
  • Being dismissed or made redundant.
  • Seeking or being given job references.

Victimisation

This is treating someone badly because they have done a ‘protected act’ (or because an employer or service provider or other organisation believes that you have done or are going to do a protected act). The reason for the treatment does not need to be linked to a protected characteristic.

A ‘protected act’ is:

  • Making a claim or complaint of discrimination (under the Equality Act).
  • Helping someone else to make a claim by giving evidence or information.
  • Making an allegation that you or someone else has breached the Act.
  • Doing anything else in connection with the Act.

Last updated: 17 Nov 2016