Direct Payments

Avoiding Discrimination in PA employment

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

3.1 Justifying a GOR

4. What’s new under the Equality Act 2010

1. The Equality Act 2010
As an employer of Personal Assistants you are you have a legal obligation to protect
against discrimination in your workplace under the Equality Act 2010 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.

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1.1 What are the protected characteristics?
It is illegal to discriminate* against any of your employees on the basis of:
Race, Age, Religion or Belief, Disability, Gender Re-assignment, Marriage and Civil
Partnership, Sexual Orientation, Sex.
*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 les favourable directly because of a
protected characteristic that they possess. There are two further types of direct
discrimination- discrimination by association and perception discrimination (see
below).

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.

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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 of 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
….is defined as ‘unwanted conduct related to a protected characteristic which
violates an individual's dignity or creates a negative or offensive behaviour 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
hearing. If David does nothing to try to stop this he would be liable for racial harassment.
This is an example of third party harassment.

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2.7 Victimisation
….occurs when an employee is badly treated because they have made 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 ‘trouble makers’ 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. What’s new under the Equality Act 2010?

Age: the act continues to allow a default retirement age of 65 until April 2011.
The default retirement age will be scrapped on 1st October 2011.
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

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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 if it has lasted or is likely to last for at least 12
months (there are special rules covering recurring or fluctuating conditions).

• - ‘normal day-to-day activities’: eg eating, washing, walking and shopping.

Protection from discrimination arising from disability: this is an entirely new feature. It
is now discriminatory to treat someone unfavourably because of something connected to
their disability ie a dyslexic PA’s tendancy 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.

Sex: 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.
For office use only

Avoiding PA discrimination in Employment