Avoiding discrimination in personal assistant employment Factsheet number: 2.5 Last Updated: 10 June 2021 Introduction Discrimination means treating some people differently from others. It isn't always unlawful. For example, people are paid different wages depending on their particular skills and experience- this type of discrimination is legal. However, there are certain reasons that you cannot discriminate against people that you employ. It is unlawful to discriminate against people on the basis of their age, sex, disability, sexual orientation, race, religion or belief, marital status or because of gender reassignment, pregnancy or maternity. Equal opportunities laws such as the Equality Act 2010 aim to create a 'level playing field' and protect people in the workplace. This aims to ensure that people are employed, paid, trained and promoted only on the basis of their skills, abilities and how they do their job. Contents 1. The Equality Act 2010 1.1 What are the protected characteristics? 1.2 What does ‘employment’ include? 2. Discrimination 2.1 Direct discrimination 2.2 Discrimination by association 2.3 Perception discrimination 2.4 Indirect discrimination 2.5 Harassment 2.6 Third part harassment 2.7 Victimisation 3. Genuine occupational requirements (GOR) 3.1 Justifying a GOR 4. Key facts for employers 4.1 Updates to the Equality Act 2010 1. The Equality Act 2010 As an employer of Personal Assistants you have a legal obligation to protect against discrimination in your workplace under the Equality Act 2010 (‘the act’). The act aims to protect individuals from unfair treatment in all aspects of their life and to promote a fair and more equal society. A key aspect of this is the protection of employees in the workplace. The act outlines nine protected characteristics (see section 1.1 below). It is illegal to treat your employee less favourably because they possess any of these characteristics unless it is a genuine occupational requirement. There are seven key types of illegal discrimination, falling into four main categories: direct, indirect, victimisation and harassment. All employees, whether part-time, full-time or temporary, should be treated fairly and with respect. Decisions on employment, promotion, training or any other benefit should be made purely on the basis of aptitude and ability. 1.1. What are the protected characteristics? It is illegal to discriminate* against any of your employees on the basis of: *unless it is a genuine occupational requirement 1.2. What does ‘employment’ include? For these purposes employment includes: Recruitment (wording of adverts, interview and selection processes) Terms of employment/ employment contract (inc. pay and holiday) Training and development Managing and supervising Promotion Termination of employment (inc. provision of references) Self-employed people are considered to be your employees under the act. 2. Discrimination Discrimination means treating some people differently from others. Sometimes it is fair to discriminate e.g. on the basis of ability or skills. However it is illegal to discriminate against people because they possess one of the protected characteristics listed above. There are seven different types of discrimination that you need to be aware of as an employer. 2.1. Direct discrimination Occurs when an employee is treated less favourably directly because of a protected characteristic that they possess. There are two further types of direct discrimination- discrimination by association and perception discrimination. Example: Peter, the boss of a building company, recruits a man rather than a woman for an administrative job in the site office because he assumes that women do not have the strength to do the job. This is direct sex discrimination. 2.2. Discrimination by association Occurs when an employee is treated less favourably because they associate with someone who possesses a protected characteristic. Example: June is in line for a promotion. However, after she tells her boss that her mother, who lives with her, has had a stroke which has left her unable to walk the promotion is withdrawn. This is discrimination by association on the basis of disability. 2.3. Perception discrimination Occurs when an employee is treated less favourably because others think they possess a protected characteristic. It applies even if they do not actually possess that characteristic. Example: Jim is 45 but looks much younger. Many people assume that he is in his mid-twenties. He is not allowed to represent his company at an international meeting because the managing director thinks that he is too young and therefore too inexperienced. This is an example of perception discrimination on the basis of age. 2.4. Indirect discrimination Can occur when you have a condition, rule, policy or practice that applies to all employees equally but particularly disadvantages employees who possess a protected characteristic. Example: Amy is forced to leave her job because her employer operates a shift pattern which she is unable to comply with because she needs to look after her children at particular times of day. Research has shown that women are more likely to be responsible for childcare. Her employer will have indirectly discriminated against Amy unless the practice can be justified. If not, this amounts to indirect sex discrimination. 2.5. Harassment This is defined as ‘unwanted conduct related to a protected characteristic which violates an individual's dignity or creates a negative or offensive environment for that individual’. Employees can complain of such behaviour even if it is not directed at them. Example: Tom, who has a same sex partner, is continually referred to by female nicknames at work which he finds humiliating and distressing. This is harassment on the basis of sexual orientation. 2.6. Third party harassment You are potentially liable for harassment of your employees by third parties. You are liable if harassment has occurred on two previous occasions, you are aware of it and you have not taken reasonable steps to prevent it. Example: Leon, who has a strong Nigerian accent, tells his manager, David, that he feels upset and humiliated by a customer who continues to make derogatory remarks about Africans in his presence. If David does nothing to try to stop this, he would be liable for racial harassment. This is an example of third party harassment. 2.7. Victimisation Occurs when an employee is treated badly because they have made or supported a complaint or raised a grievance under the Equality Act or they are suspected of doing so. An employee is not protected from victimisation where he or she maliciously makes or supports an untrue complaint. Example: Ann makes a complaint about sex discrimination. She is supported in her complaint by her colleague Brian. Both Ann and Brian are due for promotion but are subsequently denied promotion after the complaint is made. This is because some managers in their office have labelled them ‘troublemakers’ and denied them the training and development opportunities they would need to be eligible for promotion. This is an example of victimisation. 3. Genuine occupational requirements In certain limited circumstances it is acceptable to discriminate in your employment of PAs on the basis of any of the protected characteristics listed above if you can show that this is a genuine occupational requirement (GOR). The exception applies where possessing or not possessing one of the protected characteristics is a genuine requirement for the work you are offering. 3.1. Justifying a GOR You must be able to justify a GOR. The Equality Act 2010 states that ‘an employer does not illegally discriminate by applying a requirement to have a particular protected characteristic, if the employer can show that (having regard to the nature or context of the work): it is an occupational requirement; the application of the requirement is a proportionate means of achieving a legitimate aim, and; the applicant/employee does not meet it (or the employer has reasonable grounds for not being satisfied that the applicant/employee meets it). The requirement must be crucial to the post, and not merely one of several important factors. It also must not be a sham or pretext. In addition, applying the requirement must be proportionate so as to achieve a legitimate aim. A good example of a GOR is discrimination on the basis of sex. If you need to employ a PA to assist you with personal care e.g. washing, dressing etc it would usually be lawful to discriminate on the basis of sex by requiring that the PA be of the same sex as you. The legitimate aim of this it to maintain and protect your privacy and decency and personal care is crucial to the post. 4. Key facts for employers https://www.gov.uk/employer-preventing-discrimination If you would like to discuss this aspect of PA employment in more detail your adviser will be happy to provide you with more information on this topic. Alternatively, please call our Information and Advice Service or your employers liability insurance company who will be happy to discuss this with you. 4.1. Updates to the Equality Act 2010 Age: On 01 October 2011 the default retirement age was scrapped allowing individuals to continue working. Certain jobs however may restrict the age a person chooses to retire at. i.e. if the job is physically demanding. Disability: the act makes it easier than before to demonstrate for an individual to demonstrate that they are disabled. An individual no longer has to show that their impairment affects a particular capacity. Under the act someone is disabled if they have ‘a physical or mental impairment which has a substantial and long term adverse effect on their ability to carry out normal day to day activities’. ‘Substantial’: more than minor or trivial. ‘Long-term’: the effect of the impairment has lasted or is likely to last for at least twelve months (there are special rules covering recurring or fluctuating conditions). ‘Normal day-to-day activities’: e.g. eating, washing, walking and shopping. Protection from discrimination arising from disability: It is discriminatory to treat someone unfavourably because of something connected to their disability i.e. a dyslexic PA’s tendency to make spelling mistakes or where a user of an assistance or guide dog is discriminated against because of their dog, not because of their disability. This type of discrimination is illegal where the employer knows or should reasonably have known about the disability. Pre-employment enquiries about disability and health: except in the situations specified below an employer must not make such checks prior to the individual being offered the job. How you can do this where you are: asking so that reasonable adjustments can be made to enable someone to attend interview; finding out whether a job applicant would be able to undertake a function that is intrinsic (essential) to the job; supporting positive action in employment for disabled people. Gender reassignment: an individual no longer has to be under medical supervision for them to be protected. It is illegal to treat transsexual people less favourably because they are absent from work because they are undergoing gender reassignment than if they were absent due to illness or injury. Race: The definition currently includes colour, nationality, ethnic origins and national origins. Equal pay: The act makes it illegal to prevent or restrict employees from having a discussion with each other to establish if differences in pay exist. However an employer can require their employees not to discuss pay rates outside the workplace.