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Our guide to Discrimination and the Equality Act 2010 provides your School or Multi-Academy Trust with an overview of the provisions of the Act and highlights your key responsibilities and duties as an employer.
The Act covers all aspects of the working relationship; from an individual commencing their role through to post-employment. This also includes recruitment, terms and conditions, career progression, dismissal, references, etc.
As an employer, you are legally responsible for acts of discrimination, harassment or victimisation committed by your employees in the course of their employment; this is also applicable for casual staff and volunteers. It is essential to understand your duties as an employer to prevent claims of discrimination, harassment or victimisation under the Act.
Our guide outlines:
1. What is protected under the Equality Act 2010
The Act protects those individuals with one or more protected characteristics or, in certain circumstances, those ‘perceived to have’ a protected characteristic or ‘associated with someone’ who has a protected characteristic, against certain acts.
- Direct discrimination: treating a person less favourably for a reason that relates to a protected characteristic
- Indirect discrimination: where a ‘policy, criteria or practice’, applies to everyone, but is shown to put individuals with a relevant protected characteristic at a disadvantage
- Harassment: unwanted conduct that relates to a protected characteristic that has the ‘purpose or effect’ of violating a person’s dignity or creating an offensive, intimidating or hostile environment
- Victimisation: treating a person less favourably because they have complained (or intend to complain) about discrimination or have given evidence in relation to another’s complaint
2. Detailed guidance on what defines someone as disabled
A person has a disability if they have a physical or mental impairment that has a substantial and long-term adverse effect on an individual’s ability to carry out normal day-to-day activities.
The definition considers both medical and social elements, looking at the individual’s medical impairment and social impact. The key definitions are:
- “Substantial” is defined in the Equality Act as meaning more than minor or trivial
- “Long-term” is defined in the Equality Act as an impairment that has lasted, or is likely to last at least 12 months, or is likely to last for the rest of the life of the person affected
- “Adverse effect” is intended to focus on what an individual can do rather than what they can’t do
- “Normal day-to-day activities” means anything that is not abnormal or unusual, and which most people do on a frequent or fairly regular basis. It should take account of work-related activities
The Act contains a non-exhaustive list of ‘deemed disabilities’ whereby an individual with a listed condition will automatically gain protection under the Act from the day of diagnoses, such as HIV, cancer or multiple sclerosis.
The Act also includes a list of specifically excluded conditions, such as alcoholism and pyromania. Where an excluded condition is the underlying cause of impairment, this may still be protected. For instance, alcohol or drug dependency is not regarded as a disability. However, a disability can include any issues that are caused as a result of dependency, e.g. depression, liver disease, etc.
3. When and how you can justify discrimination
‘Objective justification’ is complicated and only applies in cases of indirect discrimination, direct age discrimination and discrimination arising out of a disability. An employer can justify discrimination if they can show that it was a proportionate means of achieving a legitimate aim.
For example, there may be circumstances where age discrimination is necessary, such as compulsory retirement or recruitment of a recent graduate. This is a clear example of treating someone less favourably when compared to a different age group. Therefore, the employer must be clear that applying such a policy is discriminatory and explain that it is a proportionate means of achieving a legitimate aim.
4. The reporting requirements for schools
The legislation requires employers with 250 or more employees to publish a Gender Pay Gap report annually. The report must include statutory calculations showing how large the pay gap is between their male and female employees.
Employers with less than 250 employers are not required to comply with the regulations, but they should give serious consideration to the benefits of publishing this information.
5. Guidance on equality and pay
The Equality Act 2010 provides the right to equal pay between women and men for equal work. This incorporates individuals in the same employment and includes equality in pay and all other contractual terms, such as:
- Basic pay
- Non-discretionary bonuses
- Fringe allowances
- Performance-related benefits
- Sick pay
- Overtime rates
- Hours of work.
The School Teachers’ Pay and Conditions Document (STPCD) provides a framework for teachers' pay based on the responsibilities of the role in addition to experience and qualifications.
To ensure equal pay for support staff, job evaluation schemes provide a basis for the grading and pay structure of a job by assessing the factors of the job objectively, i.e. skill, effort and responsibility. This enables the employer to demonstrate that they are providing equal pay for equal work.
It is not only important to ensure employees are appointed on the appropriate pay scale for their role, but it is also necessary to ensure that progression through that pay scale is fair and equitable. Many schools will have implemented a performance-related approach to pay progression, although some may still use automatic increments. Where progression is related to performance, both the pay policy and appraisal policy must be reviewed to ensure they are non-discriminatory. Furthermore, recommendations for pay progression should be moderated for consistency and fairness, to certify that decisions are non-discriminatory and can be objectively justified when subject to scrutiny, whether internally or by trade unions.
