Equality and Human Rights Commission

Equality legislation covers the terms and conditions of employment that you offer your staff. In general, you should treat people doing the same job in the same way. This section introduces some of the things you should consider.

Any person doing the same work as someone else has the right to be rewarded in the same way as they are.

This doesn't just include basic wages, but the full range of benefits, such as:

• bonus payments
• company cars
• company health insurance
• meal vouchers
• season ticket loans
• pensions.

This also applies to other benefits such as access to training and career development, pensions and maternity pay.

Employees should know how their pay is made up. For example, if you pay bonuses, your employees should know what they have to do to earn a bonus, and how the bonus is calculated.

Employers must not discriminate against particular groups of people, for example, by giving smaller bonuses to women or people of a particular age. Ideally employers should have some guidelines on the normal range of bonuses available.

Employees also have a right to be treated fairly and equally in the workplace, in accordance with the employment equality regulations. For example, employers must deal with complaints of harassment without delay. They should also have policies that state clearly how annual and special leave arrangements will be organised. This will reduce occasions when discrimination might otherwise occur, for example on grounds of sex, or religion and belief.

The Equal Pay Act 1970

If an employer pays someone less than their peers, or refuses them benefits that other equivalent employees have access to, because of their age, disability, race, sexual orientation, religion or beliefs, it could constitute unlawful discrimination.

However, there is specific legislation dealing with equal pay between men and women, the Equal Pay Act 1970. This deals with two concepts: equal pay for like work; and equal pay for work of equal value. Find out more about equal pay.

Part-time workers

Employers must not treat part-time employees less favourably than full-time workers.

For example, if a part-time employee works half a normal working week, you must give them half the amount of holiday that a full-time employee doing the same job would get.

Length of service

Employers can provide some benefits which increase with length of service, but only up to five years. In certain circumstances a company may offer benefits which continue to accrue beyond five years, but the company must show that such a policy can be objectively justified.

Other benefits

Benefits that have a monetary value, such as company cars or private health insurance, must be provided fairly and without discrimination.

For example, you must allow a disabled employee to join the company's private health insurance scheme on the same terms as non-disabled colleagues, unless you can produce objective evidence to justify discriminatory treatment.

Pensions

Occupational pension schemes must be provided fairly and without discriminating unlawfully.

For example: a pension scheme that offers benefits to married partners must also offer the same benefits to civil partners. If the scheme offers benefits to unmarried heterosexual couples who live together, it must offer the same benefits to unmarried same-sex couples who live together.

Under the Disability Discrimination Act, every occupational pension scheme has a 'non-discrimination' rule that places trustees and pension fund managers under similar duties as employers not to treat people less favourably if they have a disability or serious health condition.

Employers may make rules based on age in the pension schemes they offer without being guilty of unlawful discrimination.

Other workplace equality considerations

It is unlawful for an employer to treat employees less favourably in employment because of age, gender, race, disability, religion, belief or sexual orientation.

This applies to all aspects of an employer's working practices such as hours and days of work, dress codes, the physical conditions of the workplace, the culture and environment, holidays, and flexible working. It also requires employers to have due respect for people's beliefs and their private lives.

Development and promotion

Once you have recruited a member of staff, you should make sure they continue to be treated fairly and be given an equal opportunity to progress and develop within your business or organisation.

It would be unlawful, for instance, to judge two individuals by different standards in an appraisal process on the basis of one of the protected grounds for discrimination.

Similarly, you could not select candidates for promotion or for training courses according to one of the protected grounds, preferring candidates from a particular ethnic group for instance.

There are certain restricted circumstances in which you can take positive action to encourage staff from particular groups to come forward for training or development. But at the point of selection, decisions cannot be made on a discriminatory basis. Find out more about positive action.

Treating someone less favourably

Employers must make sure that employees are not treated less favourably, either by colleagues or through the application of discriminatory rules.

For instance, it would be unlawful to:

• subject a gay man who works with children to closer supervision than his colleagues because of his gender or his sexual orientation
• subject an older employee to humiliating name-calling and practical jokes relating to their age or an impairment
• force an employee to sit or work separately from their colleagues because they hold different religious beliefs
• allow an environment in which racist or sexist language or behaviour is tolerated.

Working on religious holidays and Sundays

People who work in a shop or in the betting trade can opt out of Sunday working, provided they give their employer three months' notice.

People who work in other types of organisation can also ask to not work on religious holidays because of their religion or belief. The employer must consider whether the business legitimately needs them to work on these days. Refusing to make changes to an employee's work pattern can constitute indirect discrimination if the employer cannot justify it on objective grounds.

Transgender discrimination

The Sex Discrimination Act covers discrimination on the ground of gender reassignment in employment and vocational training. It is unlawful to discriminate against a person for the purpose of employment or vocational training on the ground that that person intends to undergo gender reassignment, or is undergoing gender reassignment, or has at some time in the past undergone gender reassignment.

Once a person is living and presenting in the opposite gender role to the one in which they were registered at birth, it could be unlawful discrimination for an employer to refuse to recruit that person to a job where a genuine occupational requirement or qualification applies. The employer would have to show that he or she acted reasonably in the circumstances.

Exceptions relating to transgender

There are very limited exceptions where it may be lawful to discriminate on grounds of gender reassignment, where:

• a person's gender is a genuine occupational requirement for that job
• the job involves the holder conducting intimate searches pursuant to statutory powers, for example the Police and Criminal Evidence Act 1984
• the job involves the holder working in a private home and reasonable objection can be shown by the employer because of the intimate contact in those circumstances.

There are also temporary exceptions which apply only during the process of gender reassignment where:

• individuals have to share accommodation, and it is not reasonable on privacy or decency grounds for an individual to do so with either sex while in the process of undergoing gender reassignment, and it is not reasonable for the employer to provide alternative accommodation for the individual undergoing gender reassignment
• the holder of the post provides vulnerable individuals with personal services promoting their welfare, or similar personal circumstances, and in the reasonable view of the employer, those services cannot be adequately provided by a person while undergoing gender reassignment.

Human rights and employers

The Human Rights Act 1998 enshrines in domestic law the European Convention on Human Rights (ECHR), which sets out a series of basic human rights to which we all have an entitlement.

Unless you are a public authority, employees or former employees are not permitted to bring a claim against you alleging that you have breached their human rights.

However, if a claim is brought in an employment tribunal, the tribunal, as a public authority, will consider the Human Rights Act 1998 in making a decision.

Employment-related human rights issues

The following Articles of the European Convention on Human Rights have given rise to litigation in the employment context.

Private and family life (European Convention on Human Rights Article 8)

Where an employee is subject to dismissal or disciplinary action in respect of misconduct which occurs in their private life and is unrelated to work, an employment tribunal will weigh in the balance the protection offered by the Human Rights Act 1998 against intrusion into private life.

Article 8 rights will also be considered where an employer has dismissed an employee following covert surveillance. Covert surveillance will not always make a dismissal unfair but factors to be considered include whether there is any other way for the employer to identify the misconduct and whether the employee has received warning that the conduct is unacceptable and/or about the possibility of surveillance.

Freedom of thought, conscience and religion, including freedom to manifest one's religion (European Convention on Human Rights Article 9)

Cases involving Article 9 have made the headlines, for example that of the teaching assistant suspended in 2006 when she refused to remove a full veil when providing learning support to young children.

The principle which emerges from this and other cases involving Article 9 is that the right to manifest one's religion must be balanced against the genuine requirements of a job which the individual has voluntarily undertaken. The message for employers is that if you are considering a rule which may impact on an employee's ability to manifest their religious belief, you should consider very carefully whether this is a necessary step or whether your objective could be achieved in some other way.

Freedom of expression (European Convention on Human Rights Article 10)

Again this is of potential relevance in an employment context, where the freedom of your employees to say what they want about the business may potentially conflict with the duties of loyalty inherent in their employment status.