Under the Equality Act 2010 it is unlawful to discriminate against, harass or victimise anyone because of their race, which includes colour, caste, nationality and ethnic or national origin. All racial groups are protected from discrimination, harassment and victimisation and this protection applies to the fields of employment, higher education, the provision of goods, facilities and services, and the provision of recreational or training facilities.
What does the Act cover in relation to employment?
The Act provides protection against discrimination, victimisation and harassment on the grounds of race throughout the whole employment relationship, including:
- recruitment and selection
- terms of employment
- benefits provided during employment and on termination
- promotion opportunities
- access to training
- dismissal (including redundancy)
- post termination discrimination and harassment
What does the Act cover in relation to Higher Education?
The Act makes it unlawful for the governing body of a HEI to discriminate against or victimise a person/student because of race in any of the following ways:
the arrangements it makes for deciding who is offered admission as a student
the terms on which it offers to admit the person as a student
by not admitting the person as a student
the way it provides education for the student
the way it affords the student access to a benefit, facility or service
by not providing education for the student
by not affording the student access to a benefit, facility or service
by excluding the student
by subjecting the student to any other detriment
What does the Act cover in relation to the provision of services, goods and facilities?
HEIs provide a range of services to both staff and students, such as childcare services, libraries and careers and employment services, and as such are considered to be service providers.
The Act makes it unlawful to discriminate against, harass or victimise a person who is seeking access to or is accessing a service because of their race:
in the terms of providing the service
by terminating the provision of the service
by subjecting the service user to any other detriment
What does the Act cover in relation to the provision of recreational or training facilities?
The Act provides protection against discrimination, harassment and victimisation on the grounds of race in the provision of recreational or training facilities, such as sports services or clubs. Higher Education Institutions (HEIs) should not discriminate against or victimise a person in:
the arrangements it makes for deciding who is provided with the facilities
the terms on which it offers to provide the facilities to the person
not accepting the person’s application for provision of the facilities
In addition HEIs should not harass a person who is seeking to access or is accessing recreational or training facilities because of their race.
What types of discrimination does the Act refer to?
Direct Discrimination - Treating people less favourably than others because of their race, including their colour, caste, nationality and ethnic or national origin
Associative Discrimination - Treating people less favourably than others because they are associated with someone of a particular race
Perceptive Discrimination - Treating people less favourably than others because they are perceived to be of a particular race.
Indirect Discrimination - Applying a provision, criterion or practice which disadvantages people from a particular racial group and which cannot be shown as a proportionate means (i.e. necessary and there is no alternative means available) of achieving a legitimate aim (e.g. a real business need)
Victimisation - Treating a person less favourably than others because the person has:
brought proceedings under the Act;
given evidence or information in connection with proceedings under the Act
done any other thing for the purposes of or in connection with this Act
made an allegation (whether or not express) that there has been a breach of the Act
Protection is not afforded where the person gives false evidence or information or makes an allegation or has given evidence or information in bad faith.
Harassment - Unwanted conduct related to a relevant protected characteristic, i.e. race, that has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.
The Act also protects against third party harassment on the grounds of religion or belief (including lack of belief). The University will therefore be liable for harassment of its employees by third parties, such as external contractors, unless they have taken reasonable steps to prevent it from happening. However, this liability will only apply if the University knows that the employee has been harassed on at least two previous occasions.
Racist Incidents, Attacks and Violence
Racist attacks and violence are serious criminal offences covered by the criminal law, not the Equality Act. For example, the Crime and Disorder Act 1998 created 'racially aggravated offences', concerning offences such as harassment, assault, grievous bodily harm, and criminal damages. These carry significantly higher penalties.
The Racial and Religious Hatred Act 2006 came into force on October 1st 2007. The Act, which amended the Public Order Act 1986 introduces a new criminal offence of stirring up racial hatred against a person on racial or religious grounds. If found guilty of the offence, the punishment can include a fine or a prison sentence of up to seven years.
The Public Sector Equality Duty
The Race Relations Amendment Act 2000 introduced a statutory General Duty on all public authorities and Higher Education Institutions to promote race equality.
This meant that the University, in carrying out all functions, had to have due regard to the need to:
- eliminate unlawful racial discrimination
- promote equality of opportunity
- promote good relations between people of different racial groups
The Race Relations Amendment Act 2000 also imposed a number of specific statutory duties on the University, which intended to assist the University in meeting the General Duty. These requirements included:
preparing and publishing a Race Equality Policy, which explains how the institution is planning to meet its general duty
monitoring of staff and students by ethnicity in terms of recruitment admissions, progression, outcomes, discipline and grievance and complaints
consulting staff and students about key areas of work
conducting impact assessments on functions and policies which are relevant to race equality
The Equality Act 2010 will introduce a revised public sector Equality Duty, which will replace the Duty set out in the Race Relations Amendment Act 2000, in order to bring it in line with the new legislation. The revised duty is still subject to consultation, however the current proposals consist of a general duty, set out in the Act itself, and specific duties imposed through regulations.
The revised duty is expected to be as follows:
The General Duty
The new public sector Equality Duty is expected to cover all of the protected characteristics apart from marriage and civil partnership and will require public sector bodies to have due regard to the need to:
eliminate unlawful discrimination, harassment and victimisation
advance equality of opportunity between different groups:and
foster good relations between different groups
The Specific Duties
Current proposals for the specific equality duties for public sector bodies in England are:
public bodies will need to develop and publish equality objectives based on relevant evidence, and publicly set out how they intend to achieve them (to be renewed at least every 4 years)
public bodies will be required to publish a range of equality data relating to their workforces and the services they provide on an annual basis
public bodies with 150 or more employees will need to publish their gender pay gap figures and their employment rates for black and minority ethnic staff and disabled staff on an annual basis
public bodies will be required to be open about how they have engaged with people as part of their work towards fulfilling the aims of the Equality Duty
public bodies will need to demonstrate how the impact on equality has been assessed in the design of key policy and service delivery initiatives
public bodies will need to proactively consider the equality requirements of every contract they tender
The revised public sector Equality Duty is currently being consulted on by the Government Equalities Office and will not come into force until April 2011, therefore the current public sector duties set out in the Race Relations Amendment Act 2000 will still be referred to until the revised duty comes into force.
Policies and Guidance
The following may provide useful information and guidance:
- Race Equality Policy (to be updated shortly)
Annual Equality Report 2012 update on progress with Race Equality
The Equality and Human Rights Commission (EHRC) has statutory powers under the Race Relations Act to advise individuals about complaints and conduct formal investigations of companies and public bodies where there is evidence of discrimination. It issues guidance and codes of practice on good practice in a range of employment and service settings.
The Equality Challenge Unit exists to advise Higher Education Institutions on equality matters. They issue a range of guidance, often in partnership with other key organisations within the sector.
Birmingham Race Action Partnership (b: RAP) organisation trying to make a sustainable difference by working with others to increase their understanding of how to improve their practice in ways that reduce inequality.
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Last Updated July 2012