Issue Changes proposed by Option Impact analysis Unlawful discrimination Discrimination means: unfavourable treatment because of an attribute, or a condition, requirement or practice that disadvantages people with an attribute. Special measures to achieve equality do not constitute discrimination. Recognise discrimination on the of a combination of attributes (intersectional discrimination) The scope of each attribute includes: characteristics associated with the attribute, either actually, generally or assumed past or potential future attributes assumed attributes, and having an associate with the attribute Removes the requirement (from SDA, DDA, ADA) to construct hypothetical comparator to determine discrimination. Removes the requirement (from DDA, RDA) that the person cannot comply with the condition. Clarifies that attributebased harassment constitutes discrimination. Single special measures test clarifies the operation of this provision (largely adopts existing concepts, although different language is used in each Act) Express recognition that discrimination can be because of a combination of attributes. Ensures scope of ‘disability’ in DDA applies to all attributes Costs: No significant costs as changes will have no practical impact Benefits: Makes it easier to understand the law. Small cost savings for legal advice over time through reduction of need to be familiar with case law. When discrimination and other conduct is unlawful and when it is not unlawful
Discrimination is unlawful in connection with any area of public life Justifiable conduct is not unlawful Conduct is justifiable if done in good for a legitimate aim and is proportionate to that aim. Does not if employer could have made a reasonable adjustment to accommodate a person’s disability. Factors to consider will provide guidance as to when conduct is justifiable. Exception for discrimination in connection with an inherent requirement of a job. Does not apply if employer could have made a reasonable adjustment to accommodate a person’s disability. Inclusion of other specific exceptions from the existing Acts to provide certainty Sexual harassment is unlawful in connection with any area of public life – no exceptions apply Replaces detailed of areas of life, relationships and activities used in SDA, DDA, ADA, covering: volunteers and voluntary workers partnerships regardless of size all public clubs that maintain their facilities out of their funds (with exceptions for clubs designed specifically for people with a particular attribute) all sporting activities (with exception where strength, stamina, physique is relevant) Justifiable conduct provides flexible approach, replacing use of many specific exceptions and exemptions No practical change with inherent requirements, but single test will be clearer Some exceptions and exemption remain to provide certainty – to be reviewed within 3 Costs: Business and not-for-profit organisations Only in exceptional circumstances will organisations need to understand the intricacies or detail of the changes made, as the general principle of non-discrimination remains unchanged. Government Cost for AHRC and government of education and awareness campaign Benefits: Business Simple coverage provisions make compliance easier Flexible approach allows individual circumstances to be considered Individuals Potential for reduced level of discrimination based on sex, disability and age or sexual harassment. Mechanisms to assist business
same-sex relationship status No No No Yes Yes Yes Yes Yes Yes Yes Yes family/carer responsibilities Yes No Yes Yes Yes Yes Yes Yes Yes Yes Yes sexual orientation No Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes transgender/gender identity No No No Yes Yes Yes Yes Yes Yes Yes Yes religious belief or activity No Yes Yes No Yes Yes Yes No Yes Yes Yes not having a religious belief No No No No Yes Yes Yes No Yes No No political opinion or activity No Yes Yes No Yes Yes Yes Yes Yes Yes Yes industrial activity No Yes Yes No Yes Yes No No Yes Yes Yes association Yes No No Yes Yes Yes No Yes Yes Yes Yes medical record No Yes No No No No No No Yes No Yes criminal record No Yes No No No No No No Yes Yes Yes physical features No No No No Yes No No No No No No lawful sexual activity No No No No Yes Yes No No Yes No No profession No No No No No No No No No Yes No