This is a basic introduction to the Equality Act. Please see the Further Information section to find links to the UK Government site with full details and the legal requirements of the act.
It is important to remember that the law is the base line for how we should treat others and should be seen as the minimum requirement that you are aiming to meet at your organisation.
Types of discrimination
The Equality Act recognises four main ways in which people can experience discrimination and protects against them:
- Direct discrimination. This means treating someone with a protected characteristic less favourably than others
- Indirect discrimination. This means putting rules or arrangements in place that apply to everyone, but that put someone with a protected characteristic at an unfair disadvantage
- This is unwanted behaviour linked to a protected characteristic that violates someone’s dignity or creates an offensive environment for them
- This is treating someone unfairly because they’ve complained about discrimination or harassment.
The act also recognises and protects against:
- ‘Discrimination by perception’: Someone experiencing discrimination because they are perceived as having protected characteristics, regardless of whether they do or not.
- For example, a man receiving homophobic abuse due to stereotypes based on the way he dresses, regardless of his actual sexuality, is protected as he has experienced discrimination based on being perceived as LGBTQ+.
- ‘Discrimination by association’: Someone experiencing discrimination due to being associated with someone who holds protected characteristics, regardless of whether they personally have any of the protected characteristics.
- For example, if a white woman receives discriminatory comments at work due to being in a relationship with a black person, the woman is protected by the Equality Act against these comments as they are a result of being associated with someone who is black.
The Equality Act protects you from discrimination:
- at work
- in education
- as a consumer
- when using public services
- when buying or renting property
- as a member or guest of a private club or association
What does the Equality Act protect?
The Protected Characteristics
There are nine protected characteristics set out in the Equality Act.
- Age: This can be a person belonging to a particular age (for example 35 years old) or to a range of ages (for example 20-40). This means it covers both younger people and older people. Our access to rights can differ at various life stages. For example, children and young people are less likely to be aware of their rights or to be able to advocate for themselves while older people may be more vulnerable to exploitation or discrimination.
- Disability: Under the Equality Act, a person has a disability if they have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on their ability to do normal daily activities. It can also cover progressive conditions like HIV, cancer or multiple sclerosis. As well as the types of discrimination mentioned in the previous section the act also covers discrimination arising from disability and failure to make reasonable adjustments.
- Gender Reassignment: This applies to people who have undergone (or are undergoing) or are proposing to undergo a process of reassigning their sex, or those who are discriminated against because of a perception that they are transgender. They do not need to have undergone any medical treatment or surgery or need to have a Gender Recognition Certificate to be protected by the equality act. In 2020, in the case of Taylor v Jaguar Land Rover Ltd, the courts ruled that non-binary and genderfluid identities are covered by the protected characteristic of Gender Reassignment (Employment tribunal on non-binary and genderfluid identity).
- Marriage and Civil Partnership: This part of the Equality Act protects people from discrimination at work because they are married or in a civil partnership.
- Pregnancy and Maternity: This applies to those who are pregnant, breastfeeding or have recently given birth. It does not currently extend to parents who didn’t give birth (i.e. those who have adopted children) or carers (Working Families on discrimination against parents and carers)
- Race: This protects people against discrimination related to their racial identity. This includes discrimination motivated by colour, nationality (including citizenship), ethnic origin or national origin, which may not be the same as someone’s current nationality. It also covers racial and ethnic groups. These can be made up of more than one distinct racial or ethnic group, such as Black British, British Sikhs, Irish Travellers, or Romany Gypsies.
- Religion or Belief: The Equality Act makes it unlawful to discriminate against someone because of religion or belief, or because of a lack of a religion or belief. It does not provide a specific definition of what a religion is, but the courts have interpreted the Act as “including any religion of sufficient seriousness which has a clear structure and belief system.”
- Belief is also not clearly defined under the act, but is interpreted as a being protected if it is genuinely held, affects your life choices or the way you live, is a belief rather than an opinion or viewpoint, is about a substantial aspect of human life, possesses a certain level of cogency, seriousness, cohesion and importance and is not incompatible with the rights and/or human dignity of others. This includes vegetarianism and pacifism, for example. It excludes harmful beliefs such as Holocaust denial. It also says that “religion includes… a lack of religion.” This means that people without a religion, such as atheists, humanists and secularists, are protected.
- Sex: The Equality Act defines sex as being either male or a female and can mean a group of people like men or boys, or women or girls. This is based on internal and external sexual characteristics and is assigned at birth but can be legally changed via a Gender Recognition Certificate. It does not cover gender identities and the Equality Act does not specifically mention protections for people who are inter-sex.
- Sexual Orientation: This protects people against discrimination based on their sexuality, whether a person’s sexual attraction is towards their own sex, the opposite sex or to both sexes. The act considers this in terms of people being heterosexual, gay, lesbian or bisexual). It does not currently protect asexuality.
What might the Equality Act not cover?
For each protected characteristic there may be some exceptions and some circumstances when being treated differently is lawful. There are two particular exceptions made in the Equality Act that are relevant to third sector organisations.
Volunteers
Because volunteers are not employees, they are not protected from discrimination under the employment provisions of the Equality Act, and it is considered unlikely that the Act would cover them as someone receiving a service (the provision of a volunteering opportunity). However, it is best practice to still take into consideration and treat volunteers as if they were covered by the Act, for example looking to provide reasonable adjustments and working to ensure they do not face discrimination.
Because a volunteer is likely to be delivering a service for an organisation, or acting on the organisation’s behalf, that organisation may be responsible for their actions under the Equality Act and could be held legally responsible for what they do, even if you are not aware of the conduct and did not approve it.
Organisations should make sure that volunteers know about equality issues, understand the responsibilities they have, and do not discriminate towards service users or harass employees.
The Charities’ Exception
The charities’ exception allows charities to restrict benefits (such as the services it provides or the work it does) to people with a particular protected characteristic (but not a group defined by skin colour), even though this may exclude (and therefore discriminates against) people with other protected characteristics.
A charity can do this if the restriction appears in its governing document and only allows people who share that protected characteristic to benefit. For example, a charity set up to work only for the benefit of LGBTQ+ people or women.
It also needs to meet one of two tests:
- Tackling disadvantage. Test A is met if a charity’s aim is to tackle a particular disadvantage faced by people who share a protected characteristic.
- Achievement of a legitimate aim. Test B applies where a charity is not tackling a particular disadvantage but is seeking to achieve some other legitimate aim in a fair, balanced and reasonable (‘proportionate’) way.
What about Positive Action?
The Equality Act allows service providers to take action that may involve treating one group more favourably where this is a proportionate way to help members of that group to overcome a disadvantage or participate more fully, or in order to meet needs they have that are different from the population as a whole. This is called ‘positive action’.
To take positive action three conditions need to be met:
- You must reasonably think that a group of people who share a protected characteristic and who are, or who could be, using your services:
- suffer a disadvantage linked to that characteristic
- have a disproportionately low level of participation in this type of service or activity, or
- need different things from this service from other groups.
‘Reasonably think’ means that you can see the disadvantage, low level of participation or different needs, but you do not have to show any detailed statistical or other evidence.
- The action you take is intended to:
- meet the group’s different needs
- enable or encourage the group to overcome or minimise that disadvantage, or
- enable or encourage the group to participate in that activity.
- The action you take is a proportionate way to increase participation, meet different needs or overcome disadvantage. This means that the action is appropriate to that aim and that other actions would be less effective in achieving this aim or likely to cause greater disadvantage to other groups.
How does the Equality Act link into human rights?
The concept of protected characteristics supports the human rights we all have by providing additional protections for the people most likely to experience barriers to realising and accessing their human rights.
The reason that these characteristics are the ones chosen to be protected by law in the UK under the Equalities Act, as opposed to other characteristics is because they are attached to patterns of inequality, hate or injustice and the people with these protected characteristics are considered to be more likely to experience discrimination because of them.
The Equality Act is not a piece of human rights legislation, but there is significant crossover between the protected characteristics and the ideas and identities given additional protections within international human rights legislation.
Examples of this sort of human rights legislation are:
- the International Covenant on Economic, Social and Cultural Rights (ICESCR)
- the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
- the Convention on the Elimination of All Forms of Racial Discrimination (CERD)
- the Convention on the Rights of Persons with Disabilities (CRPD)
- the United Nations Convention on the Rights of the Child (UNCRC)
All five of the above pieces of legislation are planned to be incorporated (brought) into Scottish law. This will be through the UNCRC Incorporation Bill and the Scottish Human Rights Bill. Once these pieces of legislation are incorporated, people living in Scotland will be able to access justice relating to their rights through the Scottish courts, rather than needing to access them through the European courts.
For more information on the UNCRC Incorporation Bill and the Scottish Human Rights Bill, visit THRE’s legislation explainer blog series.
Further support
For more information and support on the Equality Act, please follow the links below or search for the organisations online.
