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Employees and beyond

"EqA" or "Equality Act" means the Equality Act 2010 (link to legislation.gov.uk)

The "Employment Code"
means the 2011 Equality Act Code of Practice on employment (pdf, link to EHRC website), which came into force on 6th April, 2011. (More on EqA Codes of Practice)
The work-related provisions of the Equality Act cover not only employees but also many other categories. This page outlines the rules. However, as regards disability the armed forces are excluded from these provisions.

Note: this page covers the Equality Act 2010 position from 1st October 2010. See also pre-Equality Act position and Which Act applies: Equality Act or DDA?

Employees
Extension beyond employees
Former employees
Exclusion of the Armed Forces
Ships, hovercraft, seafarers
Other

Employees

The Equality Act employment provisions apply to employees (except the armed forces).

It will often be very clear that a person is an employee. Sometimes the distinction between employment and self-employment is more difficult (there is broad guidance on employment at direct.gov.uk: Working out your employment status: employees). However, the distinction between employment and self-employment will often not matter for the Equality Act since the Act also applies to self-employed people who contract personally to do work - see next heading.

In Whittick v British School of Motoring a person who stammers was turned down as a driving instructor, but failed in his disability discrimination case as he was looking to obtain a franchise - he was not an applicant for 'employment'.

A paid worker is not always within the legislation, as in Breakell v Shropshire Army Cadet Force (link to bailii.org) (2011) where there was no legal obligation to do or to provide work and payment was due only if the person worked (article on outlaw.com).

Where one is an employee, protection against discrimination and harassment will often extend to events outside work.

Self-employed?

Employment within the Equality Act includes "employment under ... a contact personally to do work" (s.83(2) EqA). One might think this includes any self-employed person who has this obligation to perform personally. However, in Jivraj v Hashwani (link to bailii.org), July 2011, the Supreme Court held that an arbitrator did not fall within this provision.

The Supreme Court in Jivraj pointed out it must be 'employment' under a contract to personally do work. They applied the test in a European Court decision, Allonby: "The essential questions in each case are therefore those identified in paras 67 and 68 of Allonby... namely whether, on the one hand, the person concerned performs services for and under the direction of another person in return for which he or she receives remuneration or, on the other hand, he or she is an independent provider of services who is not in a relationship of subordination with the person who receives the services" (para 34). Independent providers would not be 'employed under a contract personally to do work' under what is now the Equality Act.

Extension beyond employees

As well as employees, and others who are employed under a contract personally to do work, the Equality Act employment provisions on disability discrimination (sometimes with adaptations) extend also to various other people, most importantly:

There are also provisions on occupational pension schemes and provision of insurance - e.g. BUPA - to employees (chapter 14 of Employment Code)

Former employees

Former employees are protected by the Equality Act after the end of their employment, if the discrimination or harassment "arises out of and is closely connected to" the employment, and would contravene the Act had it occurred during the employment. An obvious example is a negative job reference, if this is discriminatory. (S.108 EqA, Employment Code para 10.57-10.62)

The same provision also applies to other workers, partners etc within the Equality Act after the end of the relevant relationship. It not clear from the wording of the Act that victimisation post-employment, is covered, though the Government's view is that it is within the Act.

Reasonable adjustment duty

S.108(4) EqA states that post-employment obligations include a duty to make reasonable adjustments "in so far as [the employee] continues to be placed at a substantial disadvantage as mentioned in section 20". The Equality Act Explanatory Notes (link to legislation.gov.uk), at para.354, give the example of reasonable adjustments to enable continued use of an in-house gym, where a disabled former employee?s benefits include life-time use of the gym.

The word "continues" would be somewhat odd if it means the disadvantage must already exist at the end of the employment. For example, would it then cover an adjustment to an internal appeal hearing related to the dismissal? - which surely should be covered. However, "continues" seems unlikely to be interpreted in this way, especially since the wording in the previous Disability Discrimination Act 1995 had no such limitation. It might also be argued that the general wording of S.108(1) EqA in any event covers the reasonable adjustment duty where the matter arises out of and is closely connected to the employment.

Exclusion of the armed forces

Service in the armed forces is excluded from the Equality Act employment provisions on disability (EqA Sch 9 para 4(3)). Employment as a Ministry of Defence civilian, without a rank, should still fall within the Equality Act. See below on 'employment services' related to the armed forces.

The Government has said the exclusion is

"because Armed Forces personnel need to be combat effective in order to meet a world-wide liability to deploy, and to ensure that military health and fitness remain matters for Ministry of Defence (MoD) Ministers based on military advice, not for the courts."

An amendment challenging the exclusion was resisted by the Government in the House of Commons Committee on the Equality Bill (col 346-349, Hansard, Public Bill Cttee, 18th June 2009 (link to UK Parliament website)) and also in the House of Lords Committee (from col 1278 HL Hansard 25th Jan 2010 (link to UK Parliament website)).

In 2009 the UK government maintained its position by entering a reservation on service in the armed forces in its ratification of the UN Disability Convention - see Annex A of www.officefordisability.gov.uk/docs/wor/uncon/un-memo.pdf from where the quote above is taken.

There is a group of links on the BSA website employment page (www.stammering.org/employment.html) to articles on experiences of people who stammer in the armed forces.

'Employment services' related to the armed forces

Work experience in the armed forces is also excluded from protection (EqA Sch 9 para 4(3)).

'Employment services' include such things as careers guidance, vocational training, and employment agencies (EqA s.55, 56, Employment Code para 11.59). Some protection for 'employment services' relating to the armed forces is excluded by EqA Sch 9 para 5, and some is not. For example, it seems that 'employment services' relating to the armed forces are still within the Equality Act as regards the reasonable adjustment duty on employment service providers and harassment by them.

Various exclusions abolished in October 2004

Various jobs which used to be excluded were brought within the DDA, now the Equality Act, from October 2004. Examples are prison officers, fire-fighters, police officers, and offers of partnership.

Other points

Volunteers

See separate page on volunteers.

Charities etc

There are also certain exceptions relating to disabled charities and to supported employment (s.193 EqA).

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Last updated 16th April, 2011 (part update 2nd August 2011)