Situations where equality law is different

Sometimes there are situations where equality law applies differently. This guide refers to these as exceptions.

There are two exceptions which relate to managing workers and which apply to all employers:

  • The possibility that direct age discrimination can be objectively justified.
  • Health and safety considerations in relation to pregnancy and maternity.

We only list the exceptions that apply to the situations covered in this guide. There are more exceptions which apply in other situations, for example, when you are recruiting someone to do a job. These are explained in the relevant guide in the series.

In addition to these exceptions, equality law allows you to:

  • Use voluntary positive action in the way workers are managed. While positive action is most often seen as applying in recruitment, promotion and training, it can also be helpful in addressing workers’ different needs when you are managing them.
  • Treat disabled people better than non-disabled people.

Age

Age is different from other protected characteristics. If you can show that it is objectively justified, you can make a decision based on someone’s age, even if this would otherwise be direct discrimination.

However, it is very unusual to be able to objectively justify direct age discrimination of this kind. Be careful not to use stereotypes about a person’s age to make a judgement about their fitness or ability to do a job.

For example:

An employer disciplines older workers more harshly than younger workers because they expect higher standards of behaviour from older people. This is almost certainly not objectively justifiable and therefore is direct age discrimination against the older worker. 
 

Health and safety and pregnancy and maternity

Different treatment is allowed if it is absolutely necessary to do what health and safety laws say, if these laws are designed to protect women who are pregnant or who have recently given birth or to guard against risks specific to women.

For example:

A night-shift worker who is pregnant is certified by her GP as unable to work nights. Her employer must not dismiss her (this would be direct discrimination because of pregnancy). Instead they need to manage her by either finding her daytime work or, if they cannot do this, putting her on leave with full pay.

The general principle that women should, so far as is possible, not be disadvantaged by their pregnancy or maternity continues to apply. 

It is not sex discrimination against a man to make special provision for a woman in connection with her pregnancy or maternity.
 

Positive action

‘Positive action’ means the steps that you can take as an employer to address the different needs or past track record of disadvantage or low participation of a people who share a particular protected characteristic.

Although most often thought of in the context of recruitment, promotion or training, positive action is available to you in all employment situations, including how you manage people.

For example:

A large employer pays for specific counselling services for gay and lesbian members of staff who are found to experience greater incidents of homophobic bullying or harassment in the workplace. This is an example of positive action to meet a different need.

Positive action is not the same as ‘positive discrimination’ or ‘affirmative action’ which equality law does not allow.

Do I have to take positive action?

Taking positive action is voluntary. You do not have to take positive action. However:

  • Meeting the different needs of your workforce can help make your staff more productive.
  • If you are a public authority, positive action may help you meet the public sector equality duty.

When can I use positive action?

Equality law says that you have to go through a number of tests to show that positive action is needed.

The tests say that the steps you are allowed to take as part of positive action must:

  • be related to the level of disadvantage that exists
  • not be simply for the purposes of favouring one group of people over another where there is no different need or disadvantage or under-representation in the workforce.  

You must not have a blanket policy or practice of automatically treating people who share a protected characteristic more favourably than those who do not have it in the way that you manage them. You must look at whether it is needed for a particular group in a particular situation. 

Explaining why you are using positive action

Positive action may make people who do not have the particular protected characteristic feel they have not been treated as well as the people who are the target of the positive action. It is a good idea for you to explain why you have decided to use positive action. That involves showing a different need or specific disadvantage or under-representation and that you are not doing more than is needed and proportionate to tackle those problems.

The sort of positive action steps you can take when you are managing people

The sort of steps to consider include:

  • Specific facilities or services for people with a particular protected characteristic.

For example:

Offering additional support from a mentor to a transsexual person who is undergoing gender reassignment.

Providing childcare facilities or vouchers.

If your organisation is large enough, setting up networks for staff who share a particular protected characteristic.

Remember you will need to consider if such measures are needed and are proportionate. You should regularly review what you are doing to make sure positive action is still appropriate.

More detailed information on positive action

What you have to show to be able to use positive action

You can use positive action where you reasonably think (in other words, on the basis of some evidence) that:

  • people who share a protected characteristic suffer a disadvantage connected to that characteristic
  • people who share a protected characteristic have needs that are different from the needs of people who do not share it, or
  • participation in an activity by people who share a protected characteristic is disproportionately low.

Sometimes the reasons for taking action will overlap. For example, people sharing a protected characteristic may be at a disadvantage and that disadvantage may also give rise to a different need or may be reflected in their low level of participation in particular activities.

To deal with the three situations, you can take proportionate action to:

  • enable or encourage people to overcome or minimise disadvantage 
  • meet different needs, or
  • enable or encourage participation.

The sort of evidence you can use

You can only decide to use positive action if you reasonably think that a group of people who share a particular protected characteristic is under-represented or disadvantaged or has different needs.

You will need to have some evidence to show that your belief is reasonable, but it does not need to be sophisticated statistical data or research. For example, you could look at the profile of your workforce and compare it to several comparable employers in your area or sector.

Other information can be used as well – it does not have to be information you have gathered for yourself.

For example:

National research shows that, in a particular sector, women are more likely to leave their job after a relatively short period of time compared with men. An employer in the sector decides to address this different need by funding a network for their female workers with the aim of providing better support and finding solutions to barriers they face.

You can target more than one group with a particular protected characteristic provided that for each group you have reason to believe there is disadvantage, different need or low participation.

What ‘disadvantage’ means

The law does not define ‘disadvantage’ but it is generally understood to relate to barriers or obstacles which make it difficult for a person to enter into, or make progress in, a trade, sector or workplace.

For example:

A requirement to work full-time may act as a barrier for women to apply for a job because they need to combine paid work with family responsibilities. Adopting flexible working policies for jobs where this has not usually been offered is a form of positive action to address this disadvantage.

What ‘different needs’ means

Certain groups with protected characteristics may have needs which differ from those persons who do not have the protected characteristic. A need is something required because it is essential or important, rather than merely desirable to those with a particular characteristic. A need does not have to be unique to those with that particular characteristic, but it must be something that the employer reasonably believes relates to the characteristic.

What ‘disproportionately low’ means

Low participation may or may not be disproportionate. For you to use positive action to overcome it, participation must be low compared with the level of participation that could reasonably be expected. This might be evidenced by means of statistics, or, where these are not available, by qualitative evidence based on monitoring or consultation. 

Treating disabled people better than non-disabled people

Separately from positive action, equality law allows you to treat a disabled worker better – or more favourably – than a non-disabled worker. This can be done even if the disabled worker is not at a specific disadvantage because of their disability in the particular situation.  The reason the law was designed this way is to recognise that in general disabled people face a lot of barriers to participating in work and other activities.
 

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