Equality Act 2010
THE EQUALITY ACT 2010 A NOTE FOR PROFESSIONAL REGULATION
1. Pre-existing legislation governing racial and disability discrimination has now been consolidated in the Equality Act of 2010. Further obligations have been placed upon professional regulators many of whom are defined under the Act as “qualifications bodies” to address certain characteristics of their jurisdiction which may give rise to discrimination or inequality as between them and those individuals affected by it.
2. The Act seeks to consolidate and introduce a degree of uniformity across all elements of discrimination and in certain circumstances extends to the concepts of discrimination in which regulators may be held liable under the Act.
3. Most professional regulators are considered to be “qualifications bodies” of the Act pursuant to section 54(2) as they “are an authority or body which can confer a relevant qualification”. A “relevant qualification” being an authorisation, recognition, registration, enrolment, approval or certification which is needed for, or facilitates engagement in, a particular trade or profession - section 54(5).
4. Express duties under section 53 of the Act upon “qualifications bodies” are set out as follows:
A qualifications body must not discriminate against or victimise a person (x):
(i) in the arrangement it makes for deciding upon whom to confer a relevant qualification;
(ii) as to the terms on which it is prepared to confer a relevant qualification on x;
(iii) by not conferring a relevant qualification on x.
If the regulator has already conferred a “relevant qualification” on x then the body must not discriminate against him or victimise him by either:
(i) withdrawing the qualification;
(ii) varying the terms on which the qualification is held;
(iii) subjecting x to any other detriment.
There is also an express prohibition on harassment of a person who either holds the qualification or applies for one.
A disabled person has the right to expect a qualifications body to comply with the duty to make “reasonable adjustments” in respect of his/her disablement in order to comply with the obligations under the Act. The phrase “any other detriment” is any disadvantage but does not include an unjustified sense of grievance (see Shamoon v. Chief Constable of the Royal Ulster Constabulary (2003) UKHL 1 2003 ICR 337).
5. Protected characteristics are a defined set of characteristics under the Act which gives individuals express protection. The Act then defines prohibited conduct in relation to those prohibited protected characteristics. These “protected characteristics” under section 4 of the Act are; age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race including colour nationality and ethnic or national origins, religion or belief, sex, and sexual orientation. Each of these protected characteristics is subject to an extended definition (see sections 5–10 of the Act) and existing supporting case law in the field of Employment Law in relation to those projected characteristics.
6. Chapter 2 of Part 2 of the Act lists and defines prohibited conduct which includes:
(i) direct discrimination (section 13); and
(ii) indirect discrimination (section 19);
(iii) disability related discrimination (section 15).
Direct discrimination for disability is where a person treats another less favourably because of their disability. Indirect discrimination occurs where certain provisions, criteria or practises imposed by an employer or education provider have an adverse effect disproportionately on one group or another and discrimination arising from disability is where a disabled person has been treated unfavourably because of something arising as a consequence of their disability.
7. There is a plain duty on regulators to make adjustments to polices, practises, facilities and procedures to meet the individual requirements of disabled people. Technology to assist disabled people (known as assistive technology) is developing rapidly and regulators should have due regard to this as placing upon them a continuing additional obligation to keep these aspects of their regulatory environment under review. These requirements are:
(a) to take reasonable steps to avoid the substantial disadvantage where a provision, criterion or practice puts people with disabilities at a substantial disadvantage in relation to the provision of the service or exercise of a function;
(b) to take reasonable steps to avoid the substantial disadvantage, or to adopt a reasonable alternative method of providing the service or exercising the function, where a physical feature puts disabled people at a substantial disadvantage in relation to the provision of a service or exercise of a function.
(c) to take reasonable steps to provide auxiliary aid where people with a disability would, but for the provision of such an auxiliary aid, be put at a substantial disadvantage in relation to the provision of the service or exercise of a function.
8. The public sector (see list of bodies in Schedule 19 of the Act – April 2011) equality duty upon the regulators and public sector is a duty to promote equality and eliminate discrimination. The Equality Act 2010 introduces a single public sector duty covering the 6 existing equality strands including disability (direct discrimination, indirect discrimination, discrimination arising from disability, failure to make reasonable adjustments, including the anticipatory duty, victimisation and harassment). The European Union’s progress towards the elimination of discrimination is one of the principal foundations of the Equality Act 2010 and is based upon the Council Directive 2000/78/EC of 27th November 2000 which establishes a general framework for equal treatment in employment and occupation. Once a disabled person is registered with a professional body or regulator in one Member State they have the right to seek employment in another member state, so regulators will have to be mindful of standards set within their European counterparts.
9. The Equality Act 2010 defines a disabled person as; a person (P) has a disability of P has a physical or mental impairment which has (a) long term; and (b) substantial adverse effect on P’s ability to carry out normal day-to-day activities”. “Long term impairment” is defined as impairment which has (a) lasted for at least 12 months; (b) is likely to last for at least 12 months; or (c) it is likely to last for the rest of the life of the person affected. “Substantial adverse effect” is defined in the Act as one that is “more than minor or trivial”.
The “Competence Standard”
10. The Act defines a competence standard as an “academic, medical or other standard applied for the purpose of determining whether or not a person has a particular level of competence or ability” (Section 54(6)). The disability discrimination does not apply to a competence standard unless to do so amounts to indirect discrimination (Section 54(7)). This provision will inevitably excite a degree of litigation in relation to circumstances where indirect discrimination can be used as the lever to invoke disability discrimination in relation to any competence standard. Regulators medical, financial or other professional will have to have due regard to their processes, procedures and policies on a regular basis in order to be able to demonstrate that the competence standards meet with the compliance provisions of the Act and do not amount to indirect discrimination in relation to disability discrimination. See In the Matter of Horan  EQLR 473, a case where the barrister’s fitness to practise was held not to be impaired by a speech impediment resulting from a stroke; however, the Panel observed that it had been then a reasonable adjustment that had it been then a reasonable adjustment would have been that the judge exercised patience when listening to his submissions. Burke v. The College of Law 2011 UKEAT/0301/10 is a case where the fact that extra time had in fact been given in relation to the conduct of an examination at home was held not to be a relevant factor by the EAT in determining whether this was a competence standard. Zaman v. General Medical Council UKEAT/0292/06 where a race discrimination claim was recast as harassment to keep it in the Employment Tribunal. These distinctions are now historic and a breach of the duties owed under the Act by a qualifications body enforceable in the Employment Tribunal, subject to the exception “where the act complained of may, by virtue of an enactment, be subject to an appeal or proceedings in the nature of an appeal the employment tribunal will not have jurisdiction (Section 120(7). It will be important to ensure that regulators who are subject to the Act have proper processes and procedures by which these types of claim can be litigated under their respective statutory appeal procedures and to have precise terms of reference and processes and procedures imported into their regulatory and statutory provisions. This may of course give rise to claimants trying to bring claims in the Employment Tribunal because there is no risk of adverse costs awards against them.
11. The architecture of the Equality Act 2010 is desirable and logical. It produces the public benefit of a consolidation of a complex area of statutory provisions in an attempt to bring uniformity across all strands of discrimination. It remains however a trap for the unwary regulator who has not put in place within their own regulatory structures sufficient arrangements to address the complex provisions of this Act. The Act’s concepts look disarmingly simple, but when they come to be integrated into a complex regulatory environment, they place a substantial burden upon regulators to ensure that their policies, procedures and rules properly reflect the Act’s provisions and are reviewed regularly in order to meet the standards currently expected in the environment of equality and discrimination.
12. In short, equality legislation remains a moving target and regulators must respond accordingly.