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This section gives a brief overview of the main elements of the Equality Act appying to the work of an access group. Click on one of the headings below to find out more.
Personal characteristics
The Equality Act is structured around nine 'protected characteristics'. These are:
• age
• disability
• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• race
• religion or belief
• sex
• sexual orientation
Who is ‘disabled’?
Like the DDA, the Equality Act defines a disabled person as:
‘someone who has a physical or mental impairment which has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities'
However, the Equality Act goes further than the DDA by defining 'substantial' as 'more than minor or trivial'. Also, unlike the DDA, it is no longer a requirement to show that the impairment affects a particular capacity, such as mobility, manual dexterity, or continence. This should make it easier for someone to show they meet the definition.
What is discrimination?
The Act outlines various types of 'prohibited conduct'. These apply across the piece, although they are applied differently under different circumstances.
Nowhere in the Equality Act does it actually state that accessible environments should be provided for disabled people, either in their workplace or for access to goods, facilities, or services. However, duties under the Act include the requirement to consider barriers created by physical features of buildings, and to make adjustments in certain circumstances.
There are three main types of disability discrimination under the Equality Act:
Direct discrimination
This occurs when, because of their disability, a disabled person receives worse treatment than somebody who does not have that disability. Under the DDA, direct discrimination only related to employment, although in practice the DDA did protect disabled service users from prejudicial discrimination. It now applies in the same way to goods and services.
Discrimination by association: direct discrimination can also occur when a person receives worse treatment because of their association with someone who has a protected characteristic, such as disability.
Discrimination by perception: direct discrimination also includes discrimination because a person is thought to have a protected characteristic such as a disability when in fact they do not.
Combined discrimination: a person may be able to claim for combined discrimination if they receive worse treatment because of a combination of two protected characteristics, such as disability and sex, although not two different impairments. Please note that the Government is debating when, if at all, to enforce this provision.
Indirect discrimination
This occurs when there is a provision, criterion or practice, that is, a policy, rule or practice, which is applied to everyone, but which places people with a particular disability at a disadvantage compared with people who do not have that disability. It is not unlawful if it can be justified, that is, it can be shown to be a proportionate way of achieving a legitimate aim. This is new and brings services into line with employment, but to a large extent it was already covered by the duty to make reasonable adjustments in the DDA.
Discrimination arising from disability
This occurs when a disabled person is treated unfavourably not because of the disability itself but because of something connected with their disability. It is not unlawful if the treatment can be justified (see above) or if the service provider can show it did not know, or could not reasonably be expected to know, that the person was disabled. It replaces the previous disability-related provisions which were effectively discredited in the Malcolm v Lewisham case.
It is different to indirect discrimination in that:
• there is no need to show that the person has been treated less favourably because of a provision, criterion or practice which is applied to other people
• there is no need for a comparator; that is, there is no need to compare the person who has been treated less favourably with somebody who is not disabled or someone with a different disability
Reasonable adjustments
Discrimination may also occur when there is a duty to make a reasonable adjustment which has not been fulfilled.
The duty to make reasonable adjustments occurs where disabled people experience a 'substantial disadvantage' in fulfilling their roles at work, or in accessing goods and services for example. This is in contrast to the DDA, where service providers were only required to make adjustments if it was 'impossible or unreasonably difficult' for disabled people to access their services.
The requirements of the duty reflect the DDA duties but in a more consistent way. The Equality Act makes it clear that providing information in accessible formats is almost always a reasonable adjustment, and that this relates to policies as well as auxiliary aids. It also makes it clearer that the costs of reasonable adjustments cannot be passed onto the disabled person.
While service providers could previously legally justify failing to provide a reasonable adjustment in certain circumstances, under the new legislation the only question is whether the adjustment is a reasonable one to make.
Important note: Just as under the DDA, it is a myth that a building or product can be 'Equality Act compliant'. Buildings and products cannot ‘comply’ with the Equality Act. The Equality Act places duties on employers and service providers to consider barriers (both physical and intangible) that disabled people might face when trying to access a service or employment. Using a particular product or designing a building in a certain way might help someone meet their duties, but having an ‘accessible’ building in itself does not guarantee compliance.
Harassment
Disability harassment occurs when somebody is subjected to unwanted behaviour relating to disability which has the intention or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. It includes harassment because of a person’s association with someone who has a protected characteristic, or because they are wrongly perceived to have a protected characteristic.
The DDA provided for harassment at work but the Equality Act also protects disabled people accessing goods and services.
Victimisation
Victimisation occurs when somebody is treated badly for making a complaint under the Act, or helping somebody else to do so, or because they are thought to have done or be doing these things. Unlike previously, the victim does not have to show that they have been treated less favourably than someone who has not made or supported a complaint, just that they have been treated badly.
Role of access groups
The part of the legislation most relevant to access groups is Part 3, which deals with rights of access to goods, facilities, services and premises. Gaining an understanding of the duties placed on service providers will help access groups advise service providers about potential improvements.
As an access group, you can help service providers to meet their duties under the Equality Act by:
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raising awareness of their duties under the Equality Act
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advising on new buildings, spaces and developments
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advising on changes to existing buildings and spaces
Guidance
The Equality Act is accompanied by Explanatory Notes which help explain the Act. These can be found by visiting the Legislation website
Each part of the Equality Act will be supported by one or more Codes of Practice, which offer guidance on how to meet duties under the Act, as well as practical examples. While Codes of Practice neither impose legal obligations nor are authoritative statements of the law, they may be referred to in any legal proceedings pursued under the Act. They can help you to interpret the legislation.
The Codes of Practice for services, employment and equal pay are due to be laid before Parliament on 12 October 2010. If no objections are raised, they will be published 40 days from this date.
The Equality and Human Rights Commission (EHRC) has also produced some non-statutory guidance to help people understand how the Act will work. To view this, visit the EHRC website
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