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Information and Guidance on Discrimination Legislation

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This page contains information and guidance about the incoming Discrimination Legislation.

  • What is discrimination?

    • The discrimination legislation will prohibit several different kinds of discrimination.
    • Direct discrimination
    • Direct discrimination is treating someone less favourably than another person (or people) in a similar situation or circumstances. The reason for the different treatment must be clearly linked to one or more of the grounds of protection listed above for it to be unlawful. For example, if an employer refuses to shortlist a well-qualified candidate because they are a carer.
    • Discrimination by association
    • Discrimination by association is when someone is treated less favourably than another person (or people) in a similar situation or circumstances because of their association with another person who has a protected ground. For example, if a child is discriminated against because of the nationality of their parents (even if the child does not have that nationality).
    • Indirect discrimination
    • Indirect discrimination is putting rules or arrangements in place that equally apply to everyone, but that put a person or group of people at a disadvantage compared with other persons because of any of the protected grounds. It can be lawful to have specific rules or arrangements in place which lead to a disadvantage, as long as they can be objectively justified. For example, a job advert says that people need to be over a certain height to get the job. Some disabled people will experience restricted growth, meaning that they are shorter than average heights. If challenged then the employer would need to show that the height requirement was objectively justified. This means the employer would be asked what the aim of the height requirement was, and if there was another way of doing things that would meet this aim that would not put people with restricted growth at a disadvantage. If the height requirement really was the best way to do things, the employer could keep applying it.
    • Discrimination arising from disability
    • Discrimination arising from disability is when a person is treated unfavourably because of something arising from their disability. This might be, for example, that they are treated less favourably because of a behaviour arising from a disability, or the side effects of medication taken associated with a disability; or it might be that they are treated less favourably because they have an assistance animal. An employer or service provider can treat a person less favourably in relation to something arising from their disability if this can be objectively justified (as explained above for indirect discrimination). They also will not be considered to have discriminated if they couldn't reasonably be expected to know that the person was disabled.
    • Duties
    • There will also be additional duties under the new legislation and these will include the duty to make reasonable adjustments for disabled people.
    • This guidance is also available as a PDF: pdf icon What is discrimination? [100kb]
    • Further guidance and training will be available from Q4 of 2021.
  • What changes would employers and service providers need to make to comply with the legislation and when?

    • Guidance
    • Guidance to support employers to understand what they need to do before the legislation comes in is being prepared. A code of practice will also be prepared to give clear guidance on what the legislation means.
    • Many of the duties that employers and service providers will have will be things that they are advised to do already, like having a harassment policy and a diversity or equality policy in place suitable to the size of the business (the Tribunal understands that small organisations may operate in a less formal way).
    • Preparation
    • Here are some of the actions that are advisable in preparation for the legislation to check that the organisation isn't discriminating: 
      • checking whether there are differences in pay between people doing the same or substantially similar jobs related to the protected grounds, or differences in terms and conditions related to the protected grounds between people doing jobs that are not materially different.
      • reviewing when questions are asked about the protected grounds in applications forms or interviews, and checking that advertisements do not refer to protected grounds in a prohibited way,
      • reviewing policies, procedures, terms and conditions, working practises, contracts, etc to see whether they use any of the protected grounds (race, disability or carer status) directly or whether they could indirectly discriminate against someone on the basis of the protected grounds.
    • This list is not exhaustive but intended to give employers an idea of things that they should consider. Further guidance and training will be available from Q4 of 2021.
    • Training staff
    • Consider whether staff will need training before the legislation comes into force so that they understand their duties under the legislation.
    • Reasonable adjustments
    • Preparing to offer reasonable adjustments - this could include encouraging staff to get in the habit of asking whether reasonable adjustments are required for meetings, appointments, interviews and so on and ensuring booking systems include a facility to check whether reasonable adjustments are required. It might also be advisable to think through how the organisation would go about making reasonable adjustments for disabled people if the need arose.
    • Access audit
    • Considering undertaking an access audit - though there would be a five-year delay before complaints related to physical features could be made, it may be helpful to prepare in advance and to consider other aspects of accessibility, such as web design or interactions with staff. There is already some guidance available here and further information on accessibility and reasonable adjustments is available on this page.
    • Positive action
    • Consider whether the organisation is currently using, or wishes to use positive action and, if it does, set out the rationale, objectives and a review period for this.
    • This guidance is also available as a PDF: pdf icon What changes would employers and service providers need to make? [114kb]
    • Further guidance and training will be available from Q4 of 2021.
    • Within the Government Work Plan there is a proposal to delay Equal pay for work of equal value into a phase 2b with a later implementation date. This will be debated by the States at the States Meeting on 21 July 2021.
  • Reasonable adjustments and accessibility

    • Reasonable adjustments
    • The legislation will place a duty on employers and service providers to make reasonable adjustments to enable disabled people to have the same opportunities as others and be fully included in society.
    • What reasonable adjustments are provided must be discussed with the person needing the adjustment. In some circumstances, the reasonable adjustment provided will benefit other people. In other cases, the reasonable adjustment provided will only benefit the person who requested it.
    • Disproportionate burden
    • Under the proposals, denying someone a reasonable adjustment would be unlawful discrimination unless it would be a disproportionate burden for the employer or service provider to provide the adjustment. This might depend on the financial cost, other costs such as staff time, impact of productivity, disruption involved or the size and financial resources of the employer.
    • Reasonable adjustments might include making existing facilities and information accessible, providing training, providing a service in a different way, adjusting someone's work tasks or working hours, providing equipment, adjusting curricula, learning materials and teaching strategies or just doing things slightly differently.
    • However, adjustments would not have to be made unless the disabled person would suffer a substantial (meaning more than minor or trivial) disadvantage without the adjustment. Everyone would be expected to make small adjustments that cost little or nothing.
    • What is classified as a physical feature
    • A physical feature includes:
      • a feature arising from the design or construction of a building;
      • a feature of an approach to, exit from or access to a building;
      • a fixture or fitting.
    • It does not include:
      • the replacement of a sign or notice;
      • the replacement of a tap or door handle;
      • the replacement, provision or adaptation of a door bell or door entry system;
      • changes to the colour of a wall, door or any other surface.
    • Physical changes to buildings
    • Whether someone has to make significant changes (like physical changes to buildings) would depend on the wider impact those changes would have, the size and financial resources of the business, the cost of the adjustment, and other things.
    • If, following consideration, the adjustment would be a disproportionate burden to provide then the person, business or organisation would not have to provide it.
    • Education and providers of goods and services
    • For education providers and providers of goods and services only, the reasonable adjustment duty is anticipatory.
    • This means that providers of goods and services and education providers should think in advance about how to meet relatively common access needs - whether this is through more substantive changes to make facilities accessible (noting that some changes will not have to be provided if they would be a disproportionate burden), or through having a portable ramp or hearing loop to hand when people ask, for example.
    • Guidance and advice
    • Guidance to help people think through what access issues might be relevant to them will be available from the Employment and Equal Opportunities Service (this will be available during 2022).
    • The Committee is also proposing commissioning some specialist access consultancy advice for small service providers.
    • Timeline for physical changes
    • No one would have to make substantial changes to physical features (like buildings) in the first five years of the legislation.
    • Even when the duty is in force and applies to physical features, no organisation would need to make changes that were a disproportionate burden to provide. The five-year delay is intended to help organisations to prepare.
    • Public sector responsibility
    • Public sector organisations would also have a duty to develop accessibility action plans, which would outline what steps the organisation would prioritise to improve access for disabled people.
    • Public sector organisations would have five years following the introduction of the legislation to get a plan in place.
    • To view the full Policy Letter, resolutions, summary of proposals and FAQ about accessibility please follow this link.
    • This guidance is also available as a PDF: pdf icon Reasonable adjustments and accessibility [116kb]
    • Further guidance and training will be available from Q4 of 2021.

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