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Equality, diversity and inclusion

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As an employer, you must not discriminate against employees or job applicants, in respect of the nine ‘protected characteristics’ under the Equality Act 2010:

  • Age
  • Disability
  • Gender reassignment
  • Marital or civil partnership status
  • Pregnancy and maternity
  • Race
  • Religion or belief
  • Sex
  • Sexual orientation

You should not take any of the above protected characteristics into account when making recruitment or employment decisions, with limited exceptions for disability (see below). This means that you cannot, for example:

  • decide that you prefer a woman (or a man) for your post
  • decide not to appoint an applicant because she is pregnant
  • treat a person less favourably in any way due to their sexual orientation
  • fail to appoint the best person for the job, due to their age (young or old).

There is additional legislation that prohibits discrimination against other groups:

  • Part-time status (Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000)
  • Fixed-term status (Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002)
  • Equal Pay between men and women (Equal Pay Act 1970).

Understanding the law and discrimination

Our guidance can help you get started with improving your approach to equity, diversity and inclusion:

Bullying and harassment

You should consider either having a separate bullying and harassment policy, or including a section on bullying and harassment in your equality and diversity policy.

Situations where equality law is different

There are a small number of circumstances where equality law applies differently. Notably, if you can show that a protected characteristic is central to a job, you can stipulate that only someone who has that protected characteristic will be considered. This is known as an ‘occupational requirement.’ One such circumstance may be when you wish to stipulate that only women can apply to work in a women’s refuge.

The Equality and Human Rights Commission has further information on when equality law may be different.

If an occupational requirement is to be applied to a job, this must be stated in the recruitment advertisement.

If you are in doubt about when and whether it is appropriate to apply an occupational requirement, you are advised to seek advice.

Positive action

It is possible to take positive action to encourage people from certain groups to apply to work for you, where there is historical under-representation in a job.

For example, you might state in a recruitment advertisement that you encourage disabled people or people from a certain gender, ethnic origin, sexual orientation or religion/belief to apply.

All positive action must stop as soon as a vacancy is advertised. It is then up to each individual to apply for that job and to be appointed on their own merit.

Positive discrimination

‘Positive discrimination’ (eg recruiting someone because they have a protected characteristic) is unlawful in most circumstances in the UK, apart from one circumstance defined in the Equality Act 2010.

If, during the recruitment process, you have two equally qualified candidates who have scored the same in the selection process, you can, if you wish, select the successful candidate on the grounds that they are from an under-represented or disadvantaged group. It should be stressed that this is a voluntary, rather than mandatory process. Anecdotal evidence indicates that it is used infrequently, as it is relatively rare that two candidates are absolutely equal.

Gender pay reporting

Employers with 250 or more employees must report their gender pay gap (please note however that this requirement has been suspended during 2020 due to the Coronavirus outbreak). If this applies to your organisation, you can find further information on the ACAS website.

If you have less than 250 employees but wish to work on gender pay equality in your workplace, see the ‘think-act-report’ resources on GOV.UK.

Unconscious bias

Everyone has unconscious bias and it can influence our decisions in an unhelpful and potentially discriminatory way. If you want to develop your own awareness and appreciation of unconscious bias, you may wish to review the Acas resources.  

Investors in Diversity

The Investors in Diversity Award supports organisations to take a structured and planned approach to embedding equality, diversity and inclusion at the heart of what they do. It also provides recognition of what has been achieved.

Disabled applicants and employees

Definition of disability

Under the Equality Act 2010, a person has a disability (and is therefore protected by the Act) if:

  • they have a physical or mental impairment
  • and the impairment has a substantial and long-term adverse effect on their ability to perform normal day-to-day activities.

For the purposes of the Act, these words have the following meanings:

  • 'Substantial' means more than minor or trivial.
  • 'Long-term' means that the effect of the impairment has lasted or is likely to last for at least twelve months.
  • 'Normal day-to-day activities' include everyday things like eating, washing, walking and going shopping.

Individuals who have cancer, MS or HIV /AIDS are automatically protected under the Act.

Applicants for employment

Reasonable adjustments should be made as needed, to enable disabled applicants for employment to access the selection process.

You should not ask direct questions about disability at interview stage, but you should ask all candidates questions which relate to the essential requirements of the job. For example, ‘are you able to climb stairs?’ is acceptable if this is required for the job.

Your selection decision should be based on the individual’s ability to do the job, with reasonable adjustments as needed. For example, if a candidate cannot climb stairs but is otherwise the best person for the job, you will need to consider whether you can reasonably adjust the job so that there is no requirement to climb stairs.

Employees with disabilities

As an employer, you have certain legal obligations under the Equality Act 2010 towards an employee who has a disability or who acquires a disability during your employment.

If your employee is disabled under the Equality Act, you have a duty to make ‘reasonable adjustments’, for example to the workplace or working arrangements, to avoid the employee being substantially disadvantaged compared to non-disabled people.

Reasonable adjustments may include things like:

  • providing practical aids and technical equipment
  • allocating to another employee some tasks that cannot be done easily by the disabled employee
  • a phased return to work after absence due to disability – perhaps working flexible hours or part-time.

The law recognises that what may be ‘reasonable’ as an adjustment for a large employer may not be possible for a smaller employer. Nevertheless, you should implement any adjustments that are reasonable, in consultation with the employee. You should take specialist occupational health advice if needed. See www.fitforwork.org, where you can access free advice on health and work matters.

Even if your employee does not fall under the legal definition of ‘disabled’, but would benefit from some adjustments that are reasonable to make, then it is good practice and the right thing to do, to make such adjustments.

Access to work

The government has a scheme called ‘Access to Work’, which provides funds for practical aids and adaptations that may be needed in the workplace for employees.

Disability confident scheme

The Disability Confident scheme aims to help employers make the most of the opportunities provided by employing disabled people. It is voluntary and has been developed by employers and disabled people’s representatives.

It is free to sign up and use the available guidance.

Further resources

Page last edited Jun 30, 2020

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