Appendix A: Legal Context and Definitions
A1. The Equality Act 2010
The Equality Act came into force in October 2010. Sections of the Act apply to the provision of goods, facilities and services, premises, employment and education.
A1.1 Protected Characteristics
The Equality Act outlines nine grounds upon which discrimination is unlawful. These are known as ‘protected characteristics’ and they are:
- Gender reassignment
- Marriage and Civil Partnership
- Pregnancy and Maternity
- Religion and Belief
- Sexual Orientation
A1.2 Direct Discrimination
Direct discrimination is defined as treating one person less favourably than another, because of a protected characteristic.
A1.2.1 Discrimination by association is a type of direct discrimination against someone because they associate with another person who possesses a protected characteristic.
A1.2.2 Discrimination by perception is a type of direct discrimination against someone who is perceived to have a protected characteristic.
A1.3 Indirect Discrimination
Indirect discrimination is when a provision, criterion or practice is applied, which particularly disadvantages people with a protected characteristic. Indirect discrimination can be justified, if it can be shown to be a proportionate means of meeting a legitimate aim.
A1.4 Discrimination arising from a disability
Discrimination arising from a disability is when someone is treated unfavourably because of something arising as a consequence of their disability. This type of discrimination can be justified, if it can be shown to be a proportionate means of meeting a legitimate aim.
Harassment is defined as unwanted conduct that has the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for a person, or violating a person’s dignity. There is more information about harassment in the University’s Dignity at Work and Study policy(18).
Victimisation is defined as treating a person less favourably because they have complained about discrimination or harassment, or helped someone else to do so.
A1.7 Positive Action
The Equality Act 2010 allows “positive action” as a proportionate means of enabling or encouraging people with a protected characteristic to overcome or minimise disadvantage, or participate in activity where they are underrepresented. This includes allowing employers to recruit or promote employees because of their protected characteristic if they are as qualified(19) as other candidates, provided this is done on a case-by-case basis rather than as a matter of policy.
A2. Public Sector Equality Duty
A2.1 The University is a public body and as such is subject to, and compliant with, the Public Sector Equality Duty. This is defined as the general duty(20) which is supported by specific duties(21).
A2.2 The general duty requires the University to have due regard to the need to:
Eliminate unlawful discrimination, harassment, victimisation and other prohibited conduct. Advance equality of opportunity between people who share a relevant protected characteristic and those who do not. Foster good relations between people who share a relevant protected characteristic and those who do not.
A2.3 The specific duties require the University to:
- Report progress on mainstreaming the equality duty every 2 years.
- Publish equality outcomes, and report progress every 2 years.
- Assess and review policies and practices against the needs of the general duty.
- Gather and use employee information to better perform the equality duty.
- Publish gender pay gap information and report progress every 2 years.
- Publish statements on equal pay and occupational segregation and every 4 years.
- Consider award criteria and conditions in relation to procurement.
- Publish information in a manner which is accessible to the public(22).
A3. The Human Rights Act 1998
A3.1 The Human Rights Act came into force in 2000, and incorporates the rights and freedoms of the European Convention on Human Rights into UK law. Particularly relevant to the Higher Education context are the rights to:
Freedom of expression, including the freedom to hold opinions and to receive and impart information and ideas. Freedom of thought, conscience and religion, including the freedom to manifest religion or belief. Freedom of peaceful assembly and freedom of association. The prohibition of discrimination in pursuing the rights and freedoms of the Act.
A3.2 The freedoms set out above are not absolute rights, but are qualified, in that they may be interfered with if there is a threat to public order or safety, health or morals, or the rights and freedoms of others. Any interference must be lawful and proportionate.
A4 The Further and Higher Education (Scotland) Act 2005
A4.1 Section 26 of this Act provides that institutions must have regard to the desirability of ensuring academic freedom for those who are teaching, providing learning, or engaged in research. The exercise of such freedom must not adversely affect the person’s appointment or any entitlements or privileges.
A4.2 In this context, academic freedom includes freedom, within the law, to hold and express ideas, to question and test established ideas and received wisdom, and to present controversial or unpopular points of view.
(19) The word ‘qualified’ is used here in a broad sense, and is intended to encompass all aspects of the person specification (including skills, knowledge and experience as well as formal qualifications).
(20) s149 Equality Act 2010
(21) Equality Act (Specific Duties) (Scotland) Regulations 2012