Equalities update - November 2011

 

From information provided at a Bates Wells and Braithwaite Breakfast Seminar.

 

The following information is worth noting particularly if you are considering new appointments or making changes to current staffing arrangements. It is also worth noting the section at the end about the provision of services.

 

Direct:

1.      where a person is treated less favourably than another because of one of the protected characteristics;

2.      where a person is treated less favourably than another because of an association with someone who has a protected characteristic;

3.      where a person is treated less favourably because of a mistaken belief they have one of the protected characteristics.

Indirect:

1.      Where a policy or practice applying to everyone disadvantages a group sharing a protected characteristic or an individual in the group, or where the policy is not a proportionate means of achieving the aim (in other words the aim can be achieved through a fairer policy).

 

Religion - is any kind of religion including lack of religion

 

Belief - is any kind of belief including a lack of belief

 

age, disability, gender reassignment, marriage and civil partnerships, pregnancy and maternity, race, religion, sex and sexual orientation.

 

It is possible to claim an ethos based exemption, but this is difficult.

There are a number test questions that will be helpful in determining if the requirement is ethos based and therefore acceptable:

ü      Is the ethos based on religion or belief?

ü      Does the requirement specifically relate to the work activity?

ü      Does the requirement specifically relate to the context of the work (physical and cultural)?

ü      Is the requirement a proportionate means of achieving a legitimate aim (ie fulfilling your objects or project aims)?

 

The word ‘genuine’ has now been removed from ‘genuine occupational requirement’. It is possible to apply an occupational requirement and require a person to be of a particular religion or belief providing you can prove that:

An occupational requirement will be stronger if you can support it with the objects laid down in the governing document.

 

If you use an occupational requirement in recruitment or promotion you must rely on it and apply it in the work context. For example it will be very obvious in the job specification and therefore the person specification.

 

You can apply an ethos based exemption or occupational requirement in the following cases:

1.      In arrangements for employment – job specifications

2.      In the decision not to employ

3.      Offering transfer or opportunities for training

4.      In the context of dismissal

 

The ethos based exemption applies to all staff and to contract workers but only in relation to the work they do for you

 

It does not currently apply to volunteers because volunteers do not currently come under the Equal Opportunities act although this could change depending on the result of a case currently being heard at the Supreme Court.

 

The ethos exemption does not include the terms of employment – so you can’t make a post more attractive for someone of a particular faith.

Care needs to be taken if you do not employ people who do not share your faith values, to ensure you are not creating victimisation for that group or individual, even unwittingly.

 

There are exemptions to the Equality Act in the case of organised religion where there is a requirement not to appoint someone with or related to a person with a protected characteristic. This only applies if it is rooted in the doctrine of the religion or because of the nature and context of the work, to avoid conflict with a significant number of people with strongly held religious belief.

 

There is also a general occupational requirement which operates in exactly the same way as the ethos based one but covers all the protected characteristics.

 

Blanket policies about employing people of only one belief – not all occupational roles may require this. It is better to put an occupational requirement into the job description and to note in your employment policy that all post will be subject to scrutiny for an occupational requirement which will only be used when the post satisfies the criteria above.

 

It is unlawful to discriminate against any person by refusing services or providing services at less favourable rate to any other person. This includes access to premises

The exception is when you are clearly providing a service for a particular group within a community, or providing services to a group of people who share a protected characteristic. Ministers of religion offering services particular to a faith/belief tradition are also exempt.

 

Charities can put restrictions in place providing these are demonstrated in the charitable objects and purposes. However, funding bodies cannot discriminate unless the document governing the use of funds specifically states who funds are for. This could have implications for the use of wills and bequests. Under to Act funders are providing a service.

 

Membership organisations (25 members or over) cannot directly or indirectly discriminate individuals or groups. A statement of faith can only be applied if it has been part of the organisational ethos since before 2002.

 

However religious organisations can be exempt if the purpose of the organisation is:

ü      the practice of belief/faith

ü      the advancement of belief/faith

ü      to allow a member to receive a benefit pertaining to belief/faith

ü      to foster good relations between people of different belief/faith

 

So a religious organisation may restrict;

·        membership

·        participation in activities

·        provision of services

·        use of premises

on the grounds of belief, religion or sexual orientation.

 

Discrimination can be deemed to be positive action where it supports or enhances the opportunities offered to those under the protected characteristics, or where it is a proportionate means of improving those opportunities and enabling such groups of people to participate more fully in community life.