Brian Butler: An overview of the Equality Act

Golf club managers could be excused for thinking that the main effect of the Equality Act was to legislate on the goods and services provided by clubs. However, there have been a number of important changes which have an impact on how employees and others are managed.

One advantage of the Equality Act is that all forms of discrimination are now brought together in one piece of legislation. It will not now be necessary to refer to different acts and regulations for age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership, and pregnancy and maternity. All these forms of discrimination are now called ‘protected characteristics’. These protected characteristics can be listed as follows:

• Age

• Disability

• Gender Reassignment

• Marriage and Civil Partnership

• Pregnancy and Maternity

• Race

• Religion or Belief

• Sex

• Sexual orientation.

We all know that there is no defence against direct discrimination – when someone is treated less favourably than another because of their sex, race and so on, in other words, because the person has a ‘protected characteristic’.

Indirect discrimination

It may be possible, however, to have a defence against indirect discrimination. Indirect discrimination can occur when there is a condition, rule, policy or even practice in a club that applies to everyone but particularly disadvantages people who share a protected characteristic. Indirect discrimination already applies to age, race, religion or belief sex, sexual orientation and marriage and civil partnerships. The Equality Act has extended indirect discrimination to cover disability and gender reassignment.

Associative discrimination

The Equality Act has extended other forms of discrimination. Associative discrimination is a form of direct discrimination against someone because they associate with another person who possesses a protected characteristic. Associative discrimination already applies to race, religion or belief and sexual orientation, the Equality Act has extended associative discrimination to cover age, disability, gender reassignment and sex.

Perceptive discrimination

Perceptive discrimination is a form of direct discrimination against an individual because others think they possess a protected characteristic. It applies even if the person does not actually possess that characteristic. Associative discrimination already applies to age, race, religion or belief and sexual orientation, the Equality Act has extended associative discrimination to cover disability, gender reassignment and sex.

Harassment

Harassment is ‘unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual’.

Harassment applies to all protected characteristics except for pregnancy and maternity and marriage and civil partnership. Employees will now be able to complain of behaviour that they find offensive even if it is not directed at them, and the complainant need not possess the relevant characteristic themselves.

Employees are also protected from harassment because of perception and association.

Third party harassment

This already applies to sex. Now extended to cover age, disability, gender reassignment, race, religion or belief and sexual orientation.

The Equality Act makes the club potentially liable for harassment of employees by people (third parties) who are not employees, such as members and visitors. The Club will only be liable when harassment has occurred on at least two previous occasions, and the Club was aware that it had taken place, and did not take reasonable steps to prevent it from happening again.

Victimisation

Victimisation occurs when an employee is treated badly because they have made or supported a complaint or raised a grievance under the Equality Act; or because they are suspected of doing so. An employee is not protected from victimisation if they have maliciously made or supported an untrue complaint.

Changes to discrimination law: Age (no change)

The Act protects people of all ages. However, different treatment because of age is not unlawful direct or indirect discrimination if you can justify it, that is if you can demonstrate that it is a proportionate means of meeting a legitimate aim.

Age is the only protected characteristic that allows employers to justify direct discrimination.

Disability (new definition and changes)

The act has made it easier for a person to show that they are disabled and protected from disability discrimination. Under the act, a person is disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities, which would include things like using a telephone, reading a book or using public transport.

As before, the act puts a duty on you as an employer to make reasonable adjustments for your staff to help them overcome disadvantage resulting from an impairment (for example, by providing assistive technologies to help visually impaired staff use computers effectively).

A significant change: The act includes a new protection from discrimination arising from disability.

This states that it is discrimination to treat a disabled person unfavourably because of something connected with their disability (for example, a tendency to make spelling mistakes arising from dyslexia). This type of discrimination is unlawful where the employer or other person acting for the employer knows, or could reasonably be expected to know, that the person has a disability. This type of discrimination is only justifiable if an employer can show that it is a proportionate means of achieving a legitimate aim.

Additionally, indirect discrimination now covers disabled people. This means that a job applicant or employee could claim that a particular rule or requirement you have in place disadvantages people with the same disability.

Unless you could justify this, it would be unlawful.

The act also includes a new provision which makes it unlawful, except in certain circumstances, for employers to ask about a candidate’s health before offering them work.

Gender reassignment (new definition)

The act provides protection for transsexual people. A transsexual person is someone who proposes to, starts or has completed a process to change his or her gender. The act no longer requires a person to be under medical supervision to be protected – so a woman who decides to live permanently as a man but does not undergo any medical procedures would be covered.

Transgender people such as cross dressers, who are not transsexual because they do not intend to live permanently in the gender opposite to their birth sex, are not protected by the Aat.

It is discrimination to treat transsexual people less favourably for being absent from work because they propose to undergo, are undergoing or have undergone gender reassignment than they would be treated if they were absent because they were ill or injured. Medical procedures for gender reassignment such as hormone treatment, should not be treated as a ‘lifestyle’ choice.

Elsewhere, there are no changes to: Marriage and civil partnership; Pregnancy and maternity; Race; Religion or belief; Sex; and Sexual orientation.

Positive action

As with previous equality legislation, the Equality Act allows you to take positive action if you think that employees or job applicants who share a particular protected characteristic suffer a disadvantage connected to that characteristic, or if their participation in an activity is disproportionately low.

Pre-employment health-related checks

The Equality Act limits the circumstances when you can ask health-related questions before you have offered the individual a job. Up to this point, you can only ask health-related questions to help you to:

• decide whether you need to make any reasonable adjustments for the person to the selection process

• monitor diversity among people making applications for jobs

• take positive action to assist disabled people

• assure yourself that a candidate has the disability where the job genuinely requires the job-holder to have a disability.

Once a person has passed the interview and you have offered them a job (whether this is an unconditional or conditional job offer) you are permitted to ask appropriate health-related questions.

Extension of employment tribunal powers

Under previous legislation, an employment tribunal could make a recommendation that an employer must eliminate or reduce the effect on the claimant of any discrimination. The act extends this power so that it will now be possible for a tribunal to make recommendations that an organisation takes steps to eliminate or reduce the effect of discrimination on other employees, not only on the claimant. For example, the tribunal might specify that an employer needs to train all staff about the organisation’s bullying and harassment policy. This power does not apply to equal pay cases.

Equal pay – direct discrimination

The Equality Act retains the framework that was previously in place. This means that in most circumstances a challenge to pay inequality and other contractual terms and conditions still has to be made by comparison with a real person of the opposite sex in the same employment.

However, a change in the Equality Act allows a claim of direct pay discrimination to be made, even if no real person comparator can be found.

This means that a claimant who can show evidence that they would have received better remuneration from their employer if they were of a different sex may have a claim, even if there is no-one of the opposite sex doing equal work in the organisation. This would be a claim under sex discrimination.

As can be seen, although the Equality Act has been helpful in so far as it brings together in one Act all discrimination law, there are many trip wires in the legislation. Golf club managers should, therefore, seek professional advice when dealing with cases that potentially involve a claim for discrimination. It should be remembered that discrimination claims can be made to an employment tribunal without the year’s service for unfair dismissal claims and that the compensation is not capped.

Brian Butler is the Golf Club Managers’ Association’s employment law advisor

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