The Equality Act 2010: how will it affect the NHS?

1 October 2010

The Equality Act 2010 provides a new legislative framework to protect the rights of individuals and promote equality for all: it is intended to update, simplify and strengthen previous equality legislation and to deliver a consolidated, modern and accessible framework of discrimination law. The Act is to be implemented in stages over the course of the next two years; the majority comes into force today.

The Act applies to all organisations that provide a service to the public or a section of the public (service-providers). It also applies to anyone who sells goods or provides facilities. It applies to all NHS services, whether or not a charge is made for them. The scope of the 2010 Act ranges from employment measures to the provision of goods and services.

The “protected characteristics” which are protected from unlawful discrimination are: age, pregnancy and maternity, disability, gender re-assignment, marriage and civil partnership, race, religion or belief, sex and sexual orientation. The key concepts of current discrimination legislation are retained and the definitions unified across all the strands i.e. direct discrimination, indirect discrimination, harassment and victimisation.

This article focuses on the substantive changes that affect NHS bodies and employers.

Pre-employment health assessments
Capability and sickness absence is a significant concern to the NHS. Pre-employment health assessments are often used to assess potential recruits to detect ill health issues or disabilities which might affect the ability to properly carry out the proposed job. The Act will limit the circumstances where an employer can ask an applicant health-related questions, before offering the post. Only questions that are necessary to establish whether the applicant will be able to carry out a function that is intrinsic to the work concerned will be allowed. Currently this part of the Act is due to come into force on 1 October 2010. If so, from that date, the only questions that are permitted are those necessary (prescribed) for the purpose of establishing whether:

  • there is a duty to make reasonable adjustments to the assessment process;
  • an applicant will be able to carry out a function that is intrinsic to the work concerned;
  • a candidate would fall within the provisions of the Equality Act relating to positive action;
  • a candidate has a disability where a role applied for requires the applicant to have a particular disability;
  • and monitoring diversity.

Questions such as "have you ever suffered from..." will probably be unlawful if they are not focused on the applicant's current capabilities. Questions on whether the applicant has a disability that requires the employer to make a reasonable adjustment to the recruitment process will be lawful. However, section 60(3) states that "A does not contravene a relevant disability provision merely by asking about B's health; but A's conduct in reliance on information given in response may be a contravention of a relevant disability provision". The interpretation of what this allows for is likely to be sensitive.

Public sector equality duty (“PSED”)
This is an important part of the Act. PSED is designed to ensure that fairness is at the core of public bodies’ work and that public services meet the needs of different groups. The Act gives Ministers the power to impose specific legal duties designed to help public bodies meet their obligations under the PSED. PSED will cover all NHS trusts and public bodies specified by the Government in regulations that are due to be published shortly. It is expected that most NHS bodies will be specified.

PSED replaces the three current duties that require NHS bodies to take into account gender, race and disability equality both as employers and when making policy decisions and delivering services. PSED standardises this requirement and also extends it to fully cover age, religion or belief, sexual orientation, pregnancy and maternity and gender reassignment more fully.

An example of how the NHS can promote fairness has been provided in recent guidance from the Government Equalities Office: “…providers of health services, in partnership with other organisations, can take action to tackle the marked differences in health outcomes experienced by some ethnic minority groups when compared with the general population.” The Government intends using specific powers under the Act to ensure that public bodies:

  • with 150 or more employees publish data on equality in their workforces; and that they,
  • try and eliminate discrimination, advance equality of opportunity and foster good relations between different groups across all their functions, using their procurement power to effect this. (For instance, this could be done by a Trust agreeing to only procure contracts from private sector companies that have shown they have an equal opportunities policy.)

Consultation about PSED is underway. The Equality and Human Rights Commission is to produce practical guidance before any Regulations come into force. The guidance will explain the requirements of the general and specific duties in more detail and set out what different types and sizes of NHS and other public bodies will need to do to comply. Following the end of the consultation period in November, public bodies are likely to have publish information on workforce equality by 4 April 2011.

Positive action
When selecting candidates for promotion or recruitment, in certain circumstances an employer will be allowed, under the Act, to take a person’s disability, race, sex or other “protected characteristic” into consideration. The Act imposes limits on when this may take place. Such positive action will only be permitted where:

  • the individual in question is as qualified as other candidates;
  • the employer does not have a policy of such positive action; and
  • the more favourable treatment is objectively justified, and is a proportionate means of addressing the disadvantage or under-representation of person(s) with the protected characteristic.

The Act does not force employers to take positive action. The Government has announced that it does not intend to bring the positive action sections of the Act concerning recruitment and promotion, into force in October 2010. Indeed the new Government has questioned whether it will bring these parts into force at all.

Socio-economic duty (“SED”)
The SED requires NHS and other public bodies, when making strategic decisions such as deciding priorities and setting objectives, to consider how their decisions might help to reduce the inequalities associated with socio-economic disadvantage. Such inequalities could include inequalities in education, health, housing, crime rates, or other matters associated with socio-economic disadvantage. It is for public bodies subject to the duty to determine which socio-economic inequalities they are in a position to influence.

The Act states that the SED applies to other public bodies which work in partnership with a local authority, such as many NHS Trusts, to draw up the sustainable community strategy for an area, when they are drawing up that strategy. We understand that the SED will not be brought into force in October 2010 as it is being reviewed by the Government.

Provision of healthcare
The Act also sets out the following particular provisions:

  • Refusal of a blood donation - this can occur in discriminatory circumstances so long as the refusal is reasonable in light of an assessment of the potential risk to the donor / public based on reliable clinical, epidemiological or other data.
  • Refusal of treatment of pregnant women – this can occur where there is a reasonable belief that it creates a risk to her health or safety and refusal would also occur where the same treatment presents a similar risk in relation to a different physical condition.
  • Transsexual persons - unless there is objective justification, health services must be provided to transsexual persons according to the gender in which they present. The legal protection for transsexuals applies once the person has proposed to undergo gender reassignment.
  • Disabled persons and fertility treatment – whilst this is subject to the same equality principles that apply to other areas of health and social care providers, it may be withheld from disabled persons either where there is substantial evidence indicating such treatment will not be successful, or where clinical judgment determines such treatment or resulting pregnancy could worsen a pre-existing medical condition.
  • Fertility services – these can take into account the ability of the service-user to provide a supportive parenting environment for a child occasioned by fertility treatment.
  • Separate services for men and women – these are permitted where a combined service would not be as effective, it is not reasonably practicable to provide the service except in the proposed way and such action is objectively justified. In addition, the provision of services in different ways to different levels is similarly permitted. Sexual health will be one area turning to these provisions.
  • Single sex services – these are permitted so long as they are objectively justified and meet one other criterion from a set list, which includes circumstances where only men or women require the service; or the presence of a member of the opposite sex may cause objection; or where physical contact between a service user and a member of the opposite sex may cause reasonable objection. Other criteria also apply.

Comment
Most NHS bodies already have detailed equality policies. These policies will have to be reviewed in the light of this new legislation and amended to incorporate the changes made by the Act. In particular, NHS employers should consider reviewing their policies and ensure they clearly cover “associative” and “perceptive” discrimination.

We know that a number of diversity managers in the NHS are already preparing for the implementation of the whole Act. However, the decision of the Government to hold back from implementing the Act in accordance with the timetable published in April 2010, means that there could be a degree of confusion over the policy Trusts will wish to adopt. For instance, it would be unlawful for a Trust to implement a programme of positive action on recruitment, because current legislation renders this unlawful, until the new Act, in this respect, comes into force.

If you need any advice, training or support on issues raised in this e-shot please contact:

Andrew Craggs
Partner
andrew.craggs@hilldickinson.com
+44 (0)151 600 8334

Philip Farrar
Partner
philip.farrar@hilldickinson.com
+44 (0) 151 600 8615

Hill Dickinson out of hours helpline: +44 (0)7715 376624

This e-shot is provided for general information only. It is not intended to constitute legal advice and should not be used as a substitute for legal advice.