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CERES: Centre for Education for Racial Equality in Scotland

OTHER EQUALITY LEGISLATION

[Equality and Human Rights Institutions] [The Human Rights Act 1988] [The Scotland Act 1998] [Age] [Disability] [Gender including Equal Pay and Transgender] [Religion and belief] [Sexual Orientation] [Scotland specific legislation relating to education] [Convention on the Rights of the Child]

When considering race equality, it is important to remember that everyone has multiple identities, so not only do we have our racial origins but we also have our gender, age, sexual orientation, religion or belief and ability or disability. It is possible that we can suffer discrimination related to more than one element of our personal identity, and it can be difficult to identify which element(s) are relevant to the discrimination. From a service providers point of view e.g. education providers, it is useful to try to mainstream all elements of equality, not just particular strands.

The UK at present does not have a Single Equality Act containing all provisions in relation to equalities, however the current Government is consulting through the Discrimination Law Review on creating such an act. A Single Equality Act would bring together all equality laws in one place and could also be used to harmonise those laws. At present different groups enjoy different levels of specific protection from discrimination which can be summarised in the following table.

At present different groups enjoy different levels of specific protection from discrimination which can be summarised in the following table.

	Key legislation	Education & training	Goods, Facilities and Services	Employment	Duty to promote equality
Age	Age Regulations			x
Disability	Disability Discrimination Act	x	x	x	x
Gender including Transgender	Sex Discrimination Act	x	x	x	x
Race	Race Relations Act	x	x	x	x
Religion and belief	Employment Equality (Religion & Belief) Regulations		x	x
Sexual Orientation	Employment Equality (Sexual Orientation) Regulations		x	x
Social origin / poverty	Scotland Act and Human Rights Act

In addition to the specific protections which the above groups enjoy, the Human Rights Act 1998 provides a general protection against discrimination, and the Scotland Act 1998 also includes an obligation on the Scottish Parliament, Government and Public Bodies to encourage equal opportunities across a wider range of grounds, including social origin.

The equality and human rights laws are overseen by a number of public institutions including the equality and human rights institutions, as well as the courts, and inspectorate and regulatory bodies.

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Equality and Human Rights Institutions

There are a number of equality and human rights institutions in the UK. In Northern Ireland there is the Equality Commission and the Northern Ireland Human Rights Commission. In Scotland there is the Scottish Commission for Human Rights (SCHR) and across GB there is the Equality and Human Rights Commission (EHRC, previously known at the Commission for Equality and Human Rights).

The Equality and Human Rights Commission

The EHRC takes over the work of the Equal Opportunities Commission, Disability Rights Commission and the Commission for Racial Equality; it also takes on new responsibilities for promoting equality and preventing discrimination in relation to sexual orientation, religion and belief, and age.

The EHRC also takes on new responsibilities to promote good relations between members of different groups and between groups. A group is defined by reference to shared characteristics on any of the equality “grounds” i.e. gender or transgender status, race, disability, sexual orientation, age, or religion or belief. The EHRC also takes on responsibility for promoting human rights, however it shares this responsibility in Scotland with the Scottish Commission for Human Rights.

The Scottish Commission for Human Rights

The SCHR is responsible for promoting human rights in Scotland; it shares this responsibility with the Equality and Human Rights Commission. Whilst equality is included in the remit of the SCHR, the promotion and enforcement of the specific equality laws remains the responsibility of the Equality and Human Rights Commission.

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The Human Rights Act 1998

The Human Rights Act 1998 (HRA) incorporates the rights and freedoms set out in the European Convention on Human Rights into UK law. The rights protected include right to a fair hearing (article 6), right to privacy (article 8), freedom of speech (article 10), and prohibition of discrimination (article 14).

One of the key points to note from an equality perspective is that Article 14 (freedom from discrimination) does not provide a general right to freedom from discrimination, this right is linked to the enjoyment of the other rights i.e. they must be provided without discrimination. Article 14 suggests grounds which are protected from discrimination as follows “sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status” however this is not an exhaustive list so issues like disability, sexual orientation or others would be covered by “or other status”. This also leaves scope for the article to be re-interpreted as society changes.

Some of the rights in the HRA are absolute, however most are qualified or limited rights. One of the keys changes which the HRA made to UK law was to extend the definition of reasonableness when considering actions which a public body should / should not take. When considering any action or inaction a public body must now be able to show that it will be proportionate.

Section 6 of the HRA makes it unlawful for a public authority to act in a way which is incompatible with a Convention right, this includes prohibiting discrimination. A public authority includes a court and any person who exercises functions of a public nature, for example, the police, hospitals, schools, local authorities etc.

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The Scotland Act 1998

The Scotland Act 1998 is the law which enacted devolution by creating the Scottish Parliament and the Scottish Executive (now Scottish Government). In doing this specific obligations were placed on them to observe and uphold human rights. They are also permitted to encourage equal opportunities. The Scotland Act defines equal opportunities as:

"the prevention, elimination or regulation of discrimination between persons on grounds of sex or marital status, on racial grounds, or on grounds of disability, age, sexual orientation, language or social origin, or of other personal attributes, including beliefs or opinions, such as religious beliefs or political opinions."

Section 29 of the Scotland Act specifies:

An Act of the Scottish Parliament is not law in so far as any provision of the Act is outside the legislative competence of the Parliament.

A provision is outside that competence so far as any of the following paragraphs apply – it is incompatible with any of the Convention rights or with Community Law

This means that any law passed by the Scottish Parliament must comply with human rights (as defined in the Human Rights Act) or the law can be challenged in court as being ultra vires.

Section 57 further states:

(2) A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights or with Community law.'

This means that the Scottish Executive (now called the Scottish Government) must ensure that all rules, regulations and other subordinate legislation also comply with human rights, including the prohibition on discrimination.

Section L2 of Schedule 5 provides that the power to legislate on equal opportunities is reserved to the UK Parliament at Westminster so the Scottish Government cannot introduce, and the Scottish Parliament cannot pass, equal opportunities legislation. Equal opportunities means the prevention, elimination or regulation of discrimination between persons on grounds of, amongst other things, religious beliefs. There are exceptions to this reservation which mean that the Scottish Parliament and Scottish Ministers have competence over the encouragement of equal opportunities and the observance of the equal opportunity requirements. Equal opportunity requirements are the legal requirements. Parliament and Ministers can exhort public authorities and others to adopt equal opportunity policies. The exceptions also mean that they can develop schemes to secure the better provision of services to groups who may be the subject of discrimination or legislate to require certain public authorities and office holders to have due regard to equality law.

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Age

Age discrimination is prohibited in relation to employment only.The Employment Equality (Age) Regulations 2006 (the Age Regulations) outlawed age discrimination in employment from October 2006. They provide that an employer may not discriminate on age grounds when they recruit, select, promote, train, make redundancy decisions.

The laws on age discrimination protect people apply to every, not just younger or older people.

The Age Regulations specify that older employees have the right to request to stay on in employment after the national default retirement age (currently 65 years old) and employers have a duty to consider such requests.

The introduction of a national default retirement age (NDRA), means that:

older workers can be asked to retire at 65 (or at a lower age if justified by the employer)

an employer may discriminate in recruitment, selection, promotion and training due to an employees age relative to the NDRA/ 65.

The NDRA is subject to a Judicial Review by HeyDay/ Age Concern England. Permission has been granted for the European Court of Justice (ECJ) to review the legality of the UK government’s NDRA, however the recent ECJ case of Félix Palacios de la Villa v Cortefiel Servicios SA stated that a mandatory retirement age in that case was not illegal.

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Disability

Discrimination on grounds of disability is prohibited in relation to education and training, employment and provision of goods, facilities and services. The Disability Discrimination Act 1995 (DDA)(amended 2005) makes it unlawful to discriminate against disabled people in the areas of:

Employment

Provision of Goods and Services, including by private clubs

Education

Transport, including the duty to make reasonable adjustments

The DDA 1995 defines disabled people as those who have a long term health problem or disability which has a substantial and long-term adverse effect on their ability to carry out normal day to day activities. This definition includes people with people with HIV infection, cancer or multiple sclerosis from the point of diagnosis (previously they were only covered when the disease began to have a substantial and long-term adverse effect on their life).

Recent case law (Coleman v Attridge Law C]303/06)has suggested that the DDA should be read to provide protection people “associated with people with disabilities” e.g. parents caring for children with disabilities. This case went to the European Court of Justice and was upheld in February 2008. Read the Equality and Human Rights Commission analysis of events.

The DDA 1995 specifically states that in relation to employment;

“where (a) any arrangements made by or on behalf of an employer, or

(b) any physical feature of premises occupied by the employer,

place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect.”

The DDA is the only piece of equality legislation to make provision for reasonable adjustments.

The DDA 1995 defines discrimination as being where, for a reason which relates to the disabled person’s disability, s/he treats him / her less favourably than s/he treats or would treat others to whom that reason does not or would not; and the treatment was not justifiable, then this constitutes discrimination.

The DDA 1995 was amended in 2005 to include the Disability Equality Duty, known as the general duty, into the Act. The duty is aimed at tackling systemic discrimination, and ensuring that public authorities build disability equality into everything that they do.

Public Authorities, when carrying out their functions, must now have due regard to the need to:

Promote equality of opportunity between disabled people and other people

Eliminate discrimination that is unlawful under the DDA

Eliminate harassment of disabled people that is related to their disability

Promote positive attitudes towards disabled people

Encourage participation by disabled people in public life

Take steps to meet disabled peoples’ needs, even if this requires most favourable treatment

The DDA 1995 also gives the Secretary of State, or in Scotland the Scottish Ministers, the power to introduce regulations on public authorities known as the specific duty. Key to the specific duty is the requirement to produce a Disability Equality Scheme. A number of bodies in Scotland are designated as being required to produce a specific scheme, a full list of them can be provided by the Equality and Human Rights Commission.

The general and specific duties apply in England, Scotland and Wales. The specific duties in are the same in all key respects across GB, except in relation to education in Scotland, where the duties are different due to differences in legislation.

To find out more about legislation related to disability and education in Scotland, visit the former Disability Rights Commission pages which are archived within the Equality and Human Rights Commission site.

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Gender, Equal Pay and Transgender
Discrimination on grounds of gender is prohibited in relation to education and training, employment and provision of goods, facilities and services and on grounds of transgender identity in relation to employment and training, and in the provision of goods, facilities and services. The Sex Discrimination Act 1975 (SDA) makes it unlawful to discriminate on the grounds of sex; because someone is married; on the grounds of gender reassignment; or on grounds of pregnancy or maternity.

The Sex Discrimination Act 1975 was amended in 1999 and 2006 to extend some of it’s protections on grounds of transgender identity. This makes it unlawful to discriminate on grounds of gender reassignment, but only in the areas of employment and vocational training and provision of goods, facilities and services.

In employment and vocational training, the Sex Discrimination Act protects people who are discriminated against because they:

intend to undergo gender reassignment

are currently undergoing gender reassignment

have already undergone gender reassignment

Anyone who is treated less favourably by an employer or vocational training body on any of these grounds compared with someone for whom no gender reassignment grounds exist will have a claim under the Sex Discrimination Act.

The Sex Discrimination Act 1975 was further amended in 2006 to include a statutory duty to promote gender equality. The Gender Equality Duty requires all public authorities to

“(a) to eliminate unlawful discrimination and harassment, and

to promote equality of opportunity between men and women”

The duty is aimed at tackling systemic discrimination, and ensuring that public authorities build gender equality into everything that they do.

The SDA 1975 (as amended) also gives the Secretary of State (in relation to cross-border public bodies only) or in Scotland the Scottish Ministers, the power to introduce regulations on public authorities known as the specific duty. Key to the specific duty is the requirement to produce a Gender Equality Scheme. A number of bodies in Scotland are designated as being required to produce a specific scheme, a full list of them can be provided by the Equality and Human Rights Commission.

In Scotland, a Gender Equality Toolkit for schools was launched in September 2007.

The Equal Pay Act 1970 makes it unlawful to discriminate on the grounds of sex in relation to pay and other contractual matters. In addition much of the law concerning parental rights is found in the Employment Rights Act 1996.

There are also many pieces of secondary legislation in this area covering issues such as:

Maternity, paternity and adoption leave and pay

Flexible working

Health and safety (particularly with regards to pregnant women, those who have recently given birth, and those who are breastfeeding).

The Gender Recognition Act 2004 allows a transsexual person who has lived in their self-identified gender for at least two years, and who has a diagnosis of gender dysphoria (transsexualism), to obtain legal recognition of their gender for all purposes. The Gender Equality Duty of the Equality Act 2006 provides that transsexual people are explicitly covered.The first element of the duty, requiring public authorities to have due regard to the need to eliminate unlawful sex discrimination will cover transsexual people, as unlawful sex discrimination includes the prohibition in the SDA on discrimination against transsexual people in employment and vocational training.

The second element of the duty, dealing with the promotion of equal opportunities between women and men does not include a specific obligation to promote equality of opportunity between transsexual people and people generally. However, transsexual people, as men or women, will benefit from the general obligation to promote equality of opportunity between the sexes. Legal protection for transsexual people was extended when the Government implemented its commitment to bring in legislation to prevent discrimination against transsexual people in the provision of goods and services in 21 December 2007. The Discrimination Law Review will be looking more broadly at the protection from discrimination for transsexual people.

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Religion and Belief
Discrimination on grounds of religion and belief is prohibited in relation to education and training, employment and provision of goods, facilities and services, there are also specific provisions relating to promoting religious hatred and crimes which are aggravated by religious hatred.The Employment Equality (Religion or Belief) Regulations 2003(Religion and Belief Regulations) make it unlawful to discriminate on grounds of religion or belief in employment and vocational training. They prohibit direct discrimination, indirect discrimination, victimisation and harassment.

Religion or belief is defined in the Religion and Belief Regulations as meaning any religion, religious belief or similar philosophical belief.

Not all differences of treatment on grounds of religion or belief are unlawful. There are exceptions for differences of treatment related to national security and positive action, and for the protection of Sikhs in connection with requirements as to the wearing of safety helmets.

The Religion and Belief Regulations provide an exception where being of a particular religion or belief is a genuine and determining occupational requirement for a post if it is proportionate to apply the requirement in the particular case. The Religion and Belief Regulations also provide an exception for employers with an ethos based on religion or belief where being of a particular religion or belief is a genuine occupational requirement for a post and it is proportionate to apply the requirement in the particular case.

The Equality Act 2006also introduced new provisions prohibiting discrimination on grounds of religion or belief in the provision of goods, facilities and services.

The Criminal Justice (Scotland) Act 2003 makes provisions regarding religious hatred or prejudice. The Act does not make religious hatred an offence in itself, but specifies that an offence is aggravated by religious hatred if;

at the time of committing the offence or immediately before or after doing so, the offender evinces towards the victim (if any) of the offence, malice or ill-will based on the victim's membership (or presumed membership) of a religious group, or of a social or cultural group with a perceived religious affiliation; or

the offence is motivated (wholly or partly) by malice and ill-will towards members of a religious group, or of a social or cultural group with a perceived religious affiliation, based on their membership of that group.

Section 74 (6) provides that membership of a group includes association with members of that group, and 'presumed' membership is the presumption of the offender that the person(s) is a member of a particular group.

"Religious group" is defined at Section 74 (7) as being 'a group of persons defined by reference to their;

religious belief or lack of religious belief;

membership of or adherence to a church or religious organization;

support for the culture and traditions of a church or religious organization; or

Section 74 provides that where a criminal offence is aggravated by religious prejudice the court must take into account that aggravation when determining the appropriate sentence for the criminal offence. An aggravated offence can attract a higher penalty than the offence committed without aggravation. This is because the court must take into account the proved aggravation when selecting a sentence. It should be noted that the initial offence must be proven to have occurred before the aggravation can be taken into consideration. There is no stand alone offence of religious prejudice. However, it is not necessary for the aggravation to be corroborated (that is, two sources of evidence). A single source of evidence is sufficient proof of the aggravation although corroboration is still required for the offence itself.

A similar provision exists for the rest of the UK under the Anti-Terrorism Crime and Security Act 2002.

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Sexual Orientation
Discrimination on grounds of sexual orientation is prohibited in relation to education and training, employment and provision of goods, facilities and services. The Employment Equality (Sexual Orientation) Regulations 2003 make it unlawful to discriminate on grounds of religion or belief in employment and vocational training. They prohibit direct discrimination, indirect discrimination, victimisation and harassment.The definition of sexual orientation includes actual or perceived sexual orientation and discrimination due to the association with a person(s) of these groups.

The Sexual Orientation Regulations apply to all employment and vocational training and include recruitment, terms and conditions, promotions, transfers, dismissals and training and in certain circumstances, after the working relationship has ended.

The Equality Act (Sexual Orientation) Regulations 2007 introduced new provisions prohibiting discrimination on grounds of sexual orientation in the provision of goods, facilities and services. These came into force on 30 April 2007.

The Civil Partnership Act 2004 enables same sex partners to register a civil partnership with similar effect to marriage.

Civil partners will have equal treatment in a wide range of legal matters with married couples, including:

Tax, including inheritance tax;

Employment benefits;

Most state and occupational pension benefits;

Income related benefits, tax credits and child support;

Duty to provide reasonable maintenance for your civil partner and any children of the family;

Ability to apply for parental responsibility for your civil partner’s child;

Inheritance of a tenancy agreement;

Recognition under intestacy rules;

Access to fatal accidents compensation;

Protection from domestic violence; and

Recognition for immigration and nationality purposes ”

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Scotland specific legislation relating to education

These are pieces of legislation that assist the vision for equal opportunities, social justice and addressing discrimination in schools education. The following are a selection of such pieces of legislation.

The Additional Support for Learning Act 2004Under the Act, education authorities will have a duty to establish procedures for identifying and meeting the additional support needs of every child for whose education they are responsible. They must keep those needs under review. Other agencies will have a duty to help education authorities meet their duties. Such agencies may include a local authority’s social work services, any health board, any other local authority or other agency specified by Scottish Ministers, such as Careers Scotland or further education colleges. For educators, go to the Learning and Teaching Scotland site for more practical information about this Act.

The Standard in Scotland’s Schools etc. Act 2000.This Act states that : every education authority must prepare an annual statement of improvement objectives which shall include an account of:

"the ways in which they will, in providing school education, encourage equal opportunities and in particular the observance of the equal opportunity requirements"

The Children in (Scotland) Act 1995places a duty on local authorities to "have regard so far as practicable to the child's religious persuasion, racial origin and cultural and linguistic background". With the exception of the reference to religious persuasion, this is the first time that the diversity of children and families in Scotland has been recognised and accorded importance in Scottish childcare law. Though social workers, children's panel members or sheriffs have primarily used this Act, educators should also have due regard to a child's religious persuasion, racial origin and cultural and linguistic background.

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Convention on the Rights of the Child

The Convention is a universally agreed set of standards and obligations designed to protect children’s rights, to help meet their basic needes and to expand their opportunities to reach their full potential. Scotland supports this Convention. This is the first legally binding international instrument to incorporate the full range of human rights- civil, cultural, economic, political and social rights. These basic standards—also called human rights—set minimum entitlements and freedoms that are expected to be respected by governments across the world. They are founded on respect for the dignity and worth of each individual, regardless of race, colour, gender, language, religion, opinions, origins, wealth, birth status or ability and therefore apply to every human being everywhere. Scotland has a Commissioner for Children and Young People.

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[Equality and Human Rights Institutions] [The Human Rights Act 1988] [The Scotland Act 1998] [Age] [Disability] [Gender including Equal Pay and Transgender] [Religion and belief] [Sexual Orientation] [Scotland specific legislation relating to education] [Convention on the Rights of the Child]