Key Principles of Equalities Law

This section explains some of the principal concepts underpinning UK equalities law.

Protected Characteristics

Protected characteristics are the grounds upon which discrimination is unlawful. The protected characteristics under Section 4 of the Equality Act 2010 are:

  • Age
  • Disability
  • Gender reassignment
  • Marriage and civil partnership
  • Pregnancy and maternity
  • Race
  • Religion or belief (including lack of belief)
  • Sex
  • Sexual orientation

Direct Discrimination

Direct discrimination is the legal term that applies if you treat someone less favourably than someone else has been treated (or would be treated) because the person belongs to one of the protected groups.

Unless there is a statutory exception, direct discrimination cannot be excused or defended.

An example of an exception is the ability to treat a disabled person more favourably than a non-disabled person, for example when making reasonable adjustments to support the disabled person in either working or studying.

Exceptions are rare and if you are not sure, it is always better to check with an HR Business Manager/Advisor, the University's Equality and Diversity section or Disability Resource Centre.

Indirect discrimination

Indirect discrimination is the legal term that describes situations which occur when an organisation, like the University, or a member of staff at the University, makes a decision, or puts in place a particular policy, practice or procedure, which appears to treat everyone equally, but which in practice leads to people from a particular protected group being treated less favourably than others.

An example of indirect discrimination, may be a minimum height requirement for a job where height is not relevant to carry out the role. Such a requirement would likely discriminate disproportionately against women (and some minority ethnic groups) as they are generally shorter than men.

As indirect discrimination is often not obvious, the University has developed an Equality Assurance Assessments process, which reviews policies and their implementation, in order to avoid indirect discrimination. Additional information, advice and guidance is available from the Equality and Diversity section.

Harassment

Harassment is defined in three ways by the Equality Act 2010:

  1. Unwanted conduct that has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant, or violating the complainant's dignity (this applies to all the protected characteristics apart from pregnancy and maternity, and marriage and civil partnership).
  2. Unwanted conduct of a sexual nature (sexual harassment).
  3. Treating a person less favourably than another person because they have either submitted to, or did not submit to, sexual harassment or harassment related to sex or gender reassignment.

There is no definitive list of behaviour which could be defined as harassment, but examples could include physical violence or intimidation, public humiliation, personal insults, persecution, racist/homophobic insults, stalking and shouting. More subtle forms of harassment could be excluding someone, excessive monitoring of work or failure to safeguard confidentiality.

In deciding what harassment is, it is the perceptions of the recipient of the behaviour that are important. Harassment can have been deemed to have occurred even if the intention was not present, but the recipient believed they were being harassed.

Additional protection from recurrent harassment which is not covered by the Equality Act 2010 is provided for in the Protection from Harassment Act 1997. This Act, like harassment based on a protected characteristic, creates vicarious liability for employers.

In order to protect and support members of the University from harassment, the University has developed a Dignity@Work scheme. This scheme provides guidance on behaviour which may constitute harassment, information and advice for victims of harassment and informal dispute resolution through a trained network of advisors.

Additional support and guidance is available from the HR Business Managers/Advisors, the Equality and Diversity section, the University's Staff Diversity Networks and the CUSU/Graduate Union.

Racial harassment

Racial harassment is an incident or a series of incidents intended or likely to intimidate, offend or harm an individual or group because of their ethnic origin, colour, race, religion or nationality, and a racist incident is any incident that is perceived to be racist by the victim or any other person (MacPherson Report 1999).

Such behaviour may include:

  • Derogatory name calling.
  • Verbal threats, insults and racist jokes.
  • Display of racially offensive material.
  • Exclusion from normal workplace conversation or activities.
  • Physical attack.
  • Encouraging others to commit any such acts.

Homophobic bullying

Homophobic bullying motivated by hostility or prejudice based on a person's actual or perceived sexual orientation can be considered to constitute hate incidents (Equality and Human Rights Commission 2009).

This can take many forms, including:

  • Unwanted physical contact.
  • Threatened or actual physical abuse or attack.
  • Verbal abuse such as suggestive remarks, jokes or name calling.
  • Display or distribution of offensive material or graffiti.
  • Non-verbal abuse such as mimicry, offensive gestures or body language.

Victimisation

Victimisation (defined in Section 27 of the Equality Act 2010) takes place where one person treats another less favourably because he or she has asserted their legal rights in line with the Act or helped someone else to do so.

Victimisation may occur if, for example:

  • A student alleges that they have encountered racism from a tutor, and as a result they are ignored by other staff members.
  • A senior member of staff starts to behave in a hostile manner to another member of staff, who previously supported a colleague, in submitting a formal complaint against the senior manager for sexist behaviour.
  • An employer brands an employee as a ‘troublemaker’ because they raised a lack of job-share opportunities as being potentially discriminatory.

Vicarious Liability

UK law makes the University vicariously liable for negligent acts or omissions by staff in the course of employment, whether or not such an act or omission was specifically authorised by the employer. In other words, the University is strictly liable for the wrongdoing of its members, including staff and students unless it can be demonstrated that all reasonable steps were taken to prevent the discrimination or harassment occurring or that the university member was acting on his or her own volition.

If you would like to find out more about equalities legislation and how to apply it in practice, the University offers a range of events that focus on specific equalities issues and also provides free online training [(link] which puts the law into practice.

Perceptive Discrimination

Perceptive Discrimination refers to discrimination based on a perception that an individual is a member of a relevant protected group. The relevant protected groups are Age, Disability, Gender Reassignment, Race, Religion or Belief, Sex and Sexual Orientation.

Perceptive discrimination could occur if:

  • A member of staff refuses to supervise a student because they believe that he or she is transsexual.
  • An employer decides not promote a member of staff because they believe they have a disability.

Associative Discrimination

Associative Discrimination refers to discrimination based on an individual's association with another person belonging to a relevant protected group. The relevant protected groups are Age, Disability, Gender Reassignment, Race, Religion or Belief, Sex and Sexual Orientation.

Associative discrimination could occur if:

  • A student, whose child has Attention Deficit Hyperactivity Disorder (ADHD), is refused access to a graduation ceremony because of fears about the child's behaviour.
  • An employee is overlooked for promotion because they care for an elderly relative.

Third-Party Harassment

The law protecting staff from harassment has been extended to cover situations where a member of staff is harassed by someone who is not an employee of the University because of his/her membership of a relevant protected group. The relevant protected groups are Age, Disability, Gender Reassignment, Race, Religion or Belief, Sex and Sexual Orientation.

Examples of third parties include a contractor, a member of College staff who is not a University employee and possibly a student.

For a claim to be made, the harassment must have occurred on at least two previous occasions, the University must be aware that it has taken place and have not taken reasonable steps to prevent it from happening again.

If you need advice about harassment you can speak to a:

Positive Action

Positive action is a range of measures allowed under the Equality Act 2010 which can be lawfully taken to encourage and train people from under-represented groups to help them overcome disadvantages in competing with other applicants.

For example, the University often has a low rate of applications from women for academic and academic-related offices in certain subjects, such as science, engineering and technology. In order to improve this, initiatives, such as WiSETI or targeted actions may be undertaken.

Positive action must not be confused with positive discrimination which is unlawful, e.g. the setting of quotas (as opposed to targets, which are lawful) or any form of preferential treatment. Where positive action has been taken to encourage applicants from disadvantaged groups to apply, every applicant must be considered on individual merit and selection for interview and appointment must be based strictly on the agreed selection criteria.

The Equality Act 2010 does permit reasonable adjustments which may give preferential treatment to an individual with a disability.

The Government Equality Office has produced guidance on positive action.