Equality and diversity law

The Equality Act 2010 replaced the previous equalities legislation that evolved over the preceding 45 years. It replaced nine statutes (including The Equal Pay Act 1970, the Sex Discrimination Act 1975, the Race Relations Acts 1976 and 2000, the Disability Discrimination Acts 1995 and 2005) and over 100 other pieces of legislation. It broadened the public equality duties to cover all protected groups (except marriage and civil partnership).

Duties for public bodies

  • Section 149 requires public bodies like the College to:
    • eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act 
    • advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it 
    • foster good relations between persons who share a relevant protected characteristic and persons who do not share it. 
  • The Act was supplemented by the Equality Act 2010 (Specific Duties) Regulations 2011, which requires the College to publish:
    • equality objectives, at least every four years 
    • information to demonstrate compliance with the equality duty, at least annually. This should include information relating to people who share a protected characteristic who are its employees and others affected by College policies and practices, including our students.

How Birkbeck complies with these duties

Key principles of equalities law

This section explains some of the principal concepts underpinning UK equalities law. These principles have been codified in the Equality Act 2010 and developed by case law.

Direct discrimination

  • Direct discrimination is the legal term that applies if you treat someone less favourably than someone else has been treated (or would be treated) because the person belongs to one of the protected groups.
  • Unless there is a statutory exception, direct discrimination cannot be excused or defended.
  • An example of an exception is the ability to treat a disabled person more favourably than a non-disabled person, for example when making reasonable adjustments to support the disabled person in either working or studying.
  • Another example may be in relation to meeting the fitness to study requirements that exist for certain profession-related courses, for example, teaching.
  • Exceptions are rare and if you are not sure, it is always better to check with a colleague in Human Resources or the Registry. 

Indirect discrimination

  • Indirect discrimination is the legal term that describes situations which occur when an organisation, like the College, or a member of College staff, makes a decision, or puts in place a particular policy, practice or procedure, which appears to treat everyone equally, but which in practice leads to people from a particular protected group being treated less favourably than others.
  • An example of indirect discrimination may be a minimum height requirement for a job, where height is not relevant to carry out the role. Such a requirement would likely discriminate disproportionately against women, as they are generally shorter than men, disabled candidates and some minority ethnic groups.
  • As indirect discrimination is often not obvious, it helps to consider whether a measure may impact disproportionately on protected group, through carrying out an equality impact assessment. Additional information, advice and guidance are available from Human Resources.

Harassment

  • Harassment is defined in three ways by the Equality Act 2010:
    • unwanted conduct that has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant, or violating the complainant's dignity (this applies to all the protected characteristics apart from pregnancy and maternity, and marriage and civil partnership)
    • unwanted conduct of a sexual nature (sexual harassment)
    • treating a person less favourably than another person because they have either submitted to, or did not submit to, sexual harassment or harassment related to sex or gender reassignment.
  • There is no definitive list of behaviour which could be defined as harassment, but examples could include: physical or sexual violence, intimidation, public humiliation, personal insults, persecution, racist/homophobic insults, stalking and shouting. More subtle forms of harassment could be excluding someone, excessive monitoring of work, or failure to safeguard confidentiality.
  • In deciding what harassment is, it is the perceptions of the recipient of the behaviour that are important. Harassment can have been deemed to have occurred, even if the intention to harass was not present, but the recipient believed they were being harassed. 
  • Additional protection from recurrent harassment that is not covered by the Equality Act 2010 is provided for in the Protection from Harassment Act 1997. This Act, like harassment based on a protected characteristic, creates vicarious liability for employers.
  • In order to protect and support members of the College from harassment, the institution has developed Principles of Dignity at Work and Study. This scheme provides guidance on behaviour which may constitute harassment, information and advice for victims of harassment and informal dispute resolution through a trained network of advisors.
  • Additional support and guidance are available from the HR Business Partners or HR Officers.

Racial harassment

  • Racial harassment is an incident or a series of incidents intended or likely to intimidate, offend or harm an individual or group because of their ethnic origin, colour, race, religion or nationality, and a racist incident is any incident that is perceived to be racist by the victim or any other person (MacPherson Report 1999).
  • Such behaviour may include:
    • derogatory name calling
    • verbal threats, insults and racist jokes
    • display of racially offensive material
    • exclusion from normal workplace conversation or activities
    • physical attack
    • encouraging others to commit any such acts
    • direct discrimination
    • indirect discrimination
    • harassment
    • racial harassment
    • homophobic bullying
    • victimisation
    • vicarious liability
    • positive action
    • reasonable adjustments and disability.

Homophobic bullying

  • Homophobic bullying motivated by hostility or prejudice based on a person's actual or perceived sexual orientation can be considered to constitute hate incidents (Equality and Human Rights Commission 2009).
  • This can take many forms, including:
    • unwanted physical contact
    • threatened or actual physical abuse or attack
    • verbal abuse such as suggestive remarks, jokes or name calling
    • display or distribution of offensive material or graffiti
    • non-verbal abuse such as mimicry, offensive gestures or body language.

Victimisation

  • Victimisation (defined in Section 27 Equality Act 2010) occurs when someone is treated less favourably because they have made or supported allegations of discrimination or harassment, or because an individual thinks that they may do so. For example:
    • denying someone the opportunity to participate in a work-related activity/opportunity because they are perceived to be a ‘trouble maker’
    • lowering a student’s assessment results because they have made or supported a complaint.

Vicarious liability

  • UK law makes the College vicariously liable for negligent acts or omissions by staff in the course of employment, whether or not such an act or omission was specifically authorised by the employer.
  • In other words, the College is strictly liable for the wrongdoing of its members, including staff and students, unless it can be demonstrated that all reasonable steps were taken to prevent the discrimination or harassment occurring (such as providing training) or demonstrate that the College member was acting on his or her own volition.

Positive action

  • Positive action is a range of measures allowed under the Equality Act 2010 that can be lawfully taken to encourage and train people from under-represented groups to help them overcome disadvantages in competing with other applicants. It is designed to support individuals in a proactive way so that historical exclusion or under-representation can be redressed. 
  • For example, the College often has a low rate of applications from women for academic and academic-related offices in certain subjects, such as science, engineering and technology. In order to improve this, initiatives, such as Athena SWAN or targeted actions may be undertaken. Similarly, the College has operated the Two Ticks Scheme to improve access to employment opportunities for disabled applicants.
  • Positive action must not be confused with positive discrimination or affirmative action, which is unlawful in Great Britain (eg the setting of quotas (as opposed to targets, which are lawful) or any form of preferential treatment). Where a positive action has been taken to encourage applicants from disadvantaged groups to apply, every applicant must be considered on individual merit and selection for interview and appointment must be based strictly on the agreed selection criteria.
  • The Equality Act 2010 does permit reasonable adjustments that may give preferential treatment to a disabled person.

Reasonable adjustments and disability

  • The duty to make reasonable adjustments is a unique feature of anti-discrimination law in relation to disability. A failure to comply with the duty to make reasonable adjustments constitutes discrimination under the Equality Act 2010 (section 21) unless the College lacks relevant knowledge of the disability.
  • The Equality Challenge Unit has produced Managing Reasonable Adjustments in Higher Education, which provides guidance on how to provide reasonable adjustments for staff and students.

Reasonable adjustments and staff

  • The College has a duty to make reasonable adjustments to any of its provisions, criteria or practices and to the physical features of its premises in order to accommodate the needs of disabled employees and job applicants. This duty arises whenever any aspect of the College's working practices or premises puts a disabled employee at a substantial disadvantage in comparison with employees who are not disabled.
  • This could mean, for example:
    • permitting an employee whose condition causes him or her to tire easily to work part time - an adjustment to the employer's working practices
    • allowing an employee with a mobility impairment to have a designated parking space close to the building entrance when the employer's policy states that such spaces are for managers only - an adjustment to the employer's parking policy.
  • Where reasonable to do so, the College should also provide an auxiliary aid to a disabled person where he or she would be at a substantial disadvantage without the aid compared to persons who are not disabled. Examples of auxiliary aids include replacing taps, handles and doorbells, changing a door entry system, changing the colour of a door or wall, and providing a sign language interpreter for a deaf employee at an interview. 
  • The duty to make reasonable adjustments arises only where an employer knows, or reasonably ought to know, that an individual is disabled.
  • To support staff, the College has developed the Birkbeck Code of Practice on Disability in Employment, which outlines how disabled staff and applicants are supported. It includes information on the College’s participation in the Disability Confident (formerly Two Ticks) and Mindful Employer schemes

Access to work

  • JobCentrePlus operates the national Access to Work programme, which provides funds for practical support if you have a disability, health or mental health condition. The grant can help disabled applicants to:
    • start working
    • stay in work
    • move into self-employment or start a business (though it does not cover start-up costs).
  • How much funding you receive would depend on your circumstances. If you have support needs because of a disability, in addition to speaking with HR or your line manager, it is advised that you contact Access to Work

Reasonable adjustments and students

  • The College has a duty to make reasonable adjustments for disabled staff who may encounter substantial disadvantage in their studies. Examples of this could include:
    • providing additional time for students taking examinations
    • making documents available in a particular format - for example, larger fonts
    • making available a specialist telephone to support a blind staff member in carrying out her duties
    • providing a ramp to make a building accessible
    • loaning books for longer periods to students with a disability
    • rearranging an office, so it is more accessible to a person with a disability.
  • There is a wide range of possible adjustments depending on the specific needs of the disabled individual. The adjustment(s) should help the disabled person overcome the disadvantage potentially or actually encountered and enable him to benefit from the work offered or the service or good provided.
    • An important point to note is that a disabled person is not expected to pay for the costs of an adjustment.
  • What is ‘reasonable’ is a matter of context and depends on a range of factors, which makes it difficult to create rules about when adjustments need to be made. However, in making a decision about what is appropriate, factors courts have considered include the cost of the adjustment, the resources available to the organisation that would need to make the adjustment, the number of likely beneficiaries, the protection of listed buildings and the availability of alternative providers (in the case of services).
  • The College's Wellbeing Service is made up of the Counselling Service, the Disability and Dyslexia Service and the Mental Health Advisory Service, which provides specialist support to students.