The Equality Act 2010 applies to the following sectors:

• Services and public functions (Part 3)
• Premises (Part 4)
• Work (Part 5)
• Education (Part 6)
• Associations / clubs (Part 7)

Claims of discrimination relating to self-directed support would be considered under part 3 (services & public functions).

The Act describes types of behaviour which are capable of amounting to Discrimination.  These types of behaviour are called 'prohibited conduct'.

Prohibited conduct

The types of prohibited conduct fall into these categories:

• Discrimination
  
• Direct discrimination (s 13)
  
• Indirect discrimination (s 19)
  
• Discrimination arising from disability (s 15)
  
• Duty to make reasonable adjustments (ss 20 & 21)
  
• Harassment (s 26)
  
• Victimisation (s 27)
  
• Gender reassignment absence from work (s16)
  
• Pregnancy and maternity unfavourable treatment (s18)
  
• Equal pay (ss 64-71)

Direct discrimination (s.13)

Direct discrimination occurs when a person treats another less favourably than they treat or would treat others because of a protected characteristic

Direct discrimination cannot be justified except in the case of age discrimination

We are also protected from direct discrimination and harassment because of our association with others or because of the perception of the person discriminating

Examples : direct discrimination 

A group of women complain to a health spa manager that they feel uncomfortable around another member of the spa who is a transsexual woman. In response, the manager apologises to the transsexual woman but tells her that she will not be able to use the spa again. This is less favourable treatment of her, as it puts her at a clear disadvantage compared to the spa’s other clients and will not be lawful if the spa’s conduct is because of gender reassignment.

Age – direct discrimination may be justified as ‘a proportionate means of achieving a legitimate aim’.

But the circumstances amounting to justification will be narrower than in a case of indirect discrimination. 

Only justifiable on the basis of social policy objectives which are distinguishable from purely individual reasons particular to the employer’s situation such as cost reduction or improving competitiveness. 

Discrimination by association 

Example:

A boy wishes to join his local football club, but he is rejected because his parents are a lesbian couple. This is direct discrimination by association because of sexual orientation because of the boy’s association with his parents.

Discrimination by perception:

Example:

A woman with a medical condition that makes her appear ‘masculine’ is wrongly perceived to be undergoing gender reassignment and refused entry to a women-only sauna session at her local leisure centre. This is likely to be less favourable treatment because of gender reassignment. 

Indirect discrimination (s.19)

• The complainer has to be affected
• The policy is not justifiable -This can be if it is “a proportionate means of achieving a legitimate aim”

Examples

A chain of shops is worried about security and instructs its staff to require people coming into the shop to remove any headgear. A security guard explains to a Rastafarian that it is the policy of the shop that he must remove his hat. 

Unless the shop can justify this policy it will be indirect discrimination because followers of certain religions will be placed at a particular disadvantage.

Example:

A GP practice decides that it will not see asylum seekers as patients.

This would be direct discrimination against a group of non-UK citizens.

Example:

By contrast, a bank requires evidence of a permanent residence before it allows an account to be opened. An asylum seeker attempts to open an account. The bank notes that the asylum seeker has no permanent residence and refuses the application. The requirement for a permanent residence is a neutral one and so this would be indirect discrimination unless it can be justified.

Example

A nursing home refuses to look after anyone with sickle cell anaemia. This excludes a larger number of persons from certain European ethnic groups and certain African ethnic groups, but does not exclude all African ethnic groups. If the comparison is made between Africans and non-Africans, the court may mistakenly think that no particular disadvantage to the group is revealed. However, if the comparison is between those from the commonly affected ethnic groups and those who are not so affected, the racial consequences of the rule will become apparent and the nursing home will have to justify the rule.

Discrimination  arising from  disability (s.15)

Example:

A mother seeks admission to a privately run nursery for her son who has Hirschsprung’s disease, which means that he does not have full bowel control. The nursery says that they cannot admit her son because he is not toilet trained and all the children at the nursery are. The refusal to admit the boy is not because of his disability itself; but he is being treated unfavourably because of something arising in consequence of his disability.

Example:

A member of staff at Jobcentre Plus refuses to interview a member of the public, who wishes to complete an application for Jobseeker’s Allowance, because he is swearing. However, his swearing is a result of his having Tourette syndrome. The refusal to interview is unfavourable treatment which is because of something that arises in consequence of the disabled person’s disability.

Reasonable adjustments (s.20)

Example:

A person with a visual impairment regularly receives printed letters regarding his social security benefits, despite the fact that on previous occasions he has indicated his need for Braille and this has been provided.

He finds this repeated need to telephone to ask for Braille frustrating and inconvenient, but is told that the software, which generates communications, does not enable a record to be kept of customers’ needs for alternative formats. This may constitute a failure to make reasonable adjustments if it is judged to have left the disabled person at a substantial disadvantage and there was a reasonable adjustment that could have been made.

The concept of what is reasonable is of course to some extent subjective.  There are however certain factors that should be taken into account when making that assessment:

These include:

It is important to be aware of the effect of Schedule 2(2) of the Act, which says;

(7)  If A is a service-provider, nothing in this paragraph requires A to take a step which would fundamentally alter—

(8) If A exercises a public function, nothing in this paragraph requires A to take a step which A has no power to take.

So, in essence, there are limits on what is expected of them in terms of adjustments.  

Example:

A small retailer has two shops within close proximity to each other. It has conducted an audit to identify what adjustments for disabled people will be needed. At one of its shops, customers with mobility impairments cannot use all the services provided. The other shop can be easily reached by such customers and offers the same services, all of which are accessible to disabled people. Although the retailer originally hoped to make its services in both shops equally accessible, it is constrained by its limited resources.

Therefore, for the present, it decides not to make all the services at the first shop accessible to customers with mobility impairments. In these circumstances, it is unlikely to be in breach of the Act.

Harassment occurs when a person engages in:

Example:

The mother of a two-year-old disabled child complains to the staff at a children’s centre that her daughter’s physical and social needs are not being properly met. As the centre is provided by the local authority children’s services department, the mother also complains to her councillor and to the Director of Children’s Services. The centre’s staff invite her to a meeting, after which the care of her daughter improves. The following summer she applies to go on a trip to the seaside for parents with their disabled children organised by the department but is turned down. She believes that she has been victimised because of her complaint about the care of her daughter.

Although she did not refer explicitly to the Act when she complained, she asserted that her daughter had been treated less favourably because of a protected characteristic. That is sufficient for her complaint to be a protected act.

Example:

In the above case, if the mother’s complaint had not referred to her daughter’s disability (for example, if she complained that the rooms were dirty or that the food for the children contained too much sugar), that would not be a protected act because the less favourable treatment complained of was not because of a protected characteristic.