Human

Resources

Employment Legislation Timeline and Definitions

Equality and Anti-discrimination Legislation
The following is a summary of the historical development of the main legislative framework to
date that may relate directly or indirectly to the recruitment and selection process:
1970s

Equal Pay Act 1970

Contracts of Employment Act 1972
The Rehabilitation of Offenders Act 1974
Sex Discrimination Act 1975
Race Relations Act 1976

The Employment Act 1991

Disability Discrimination Act 1995
The Employment Rights Act 1996
Protection from Harassment Act 1997
Working Time Regulations 1998 (in force from 1/10/98)
National Minimum Wage Act 1998 (in force from 1/4/99)
Public Interest Disclosure Act 1998 (in force from 2/7/99)
Data Protection Act 1998 (in force in stages from 1/3/00)
Human Rights Act 1998 (in force from 2/10/00)
Sex Discrimination (Gender Reassignment) Regulations 1999

Race Relations (Amendment) Act 2000 (progressively in force from 2/4/01)

Part-time Workers (Prevention of Less Favourable Treatment) Regulations
2000 (in force from 1/7/00)
Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations
2001 (in force from 12/10/01)
Working Time (Amendment) Regulations 2001
Burden of Proof Directive (97/80/EC)
The Race Discrimination Directive (2000/43/EC)
Equal Treatment (General Framework Directive) in Employment (2000/78/EC)
The Equal Pay Act 1970 (Amendment) Regulations 2003
The Sex Discrimination Act 1975 (Amendment) Regulations 2003
Race Relations Act 1976 (Amendment) Regulations 2003
Employment Equality (Religion or Belief) Regulations 2003
Employment Equality (Sexual Orientation) Regulations 2003
Disability Discrimination 1995 (Amendment) Regulations 2003
The Gender Recognition Act 2004
Disability Discrimination Act 2005
Civil Partnership Act 2005

1990s

2000s

Employment Equality (Sex Discrimination ) Regulations 2005

Equality Act 2006
Employment Equality (Age) Regulations 2006
Equality Act 2010

There has also been a Code of Practice on Equal Pay published in March 1997, a Code of
Practice on Age Discrimination in 1999 and a Code of Practice on the Duty to Promote Race
Equality (this includes a specific guide for Further & Higher Education).

Implications of the Legislation for Recruitment and Selection

1970's
Equal Pay Act 1970 sought to eliminate discrimination in an employment contract in the
financial terms offered to each gender.
Contracts of Employment Act 1972 introduced direction on the basic elements of what would
constitute an employment contract. It should be noted that an employment contract does not
have to be in writing, however, it is advisable to confirm in writing your agreement to rates of
pay and the terms and conditions on offer.
The Sex Discrimination Act 1975 (SDA) and the Race Relations Act 1976 (RRA) prohibited
discrimination in the terms of that contract, i.e. in decisions on who to employ, what terms to
offer them, who to train and promote. The SDA and the RRA introduced the notions of:

Direct Discrimination
Was where a person is, or would be treated less favourably than another in the same, or not
materially different circumstances. If an employer could not satisfactorily account for their
decision and show good practice, employment tribunals would draw the inference that
discrimination had occurred.

Indirect Discrimination
Occurred when an unjustifiable condition was applied to a job which had the effect of excluding
a particular group. Even if this was unintentional, it could still be unlawful.
Both these acts also prohibited discrimination in the provision of goods, services and education.
There is no qualifying period of employment or number of hours worked before a person can
take a case alleging discrimination to an employment tribunal.
The Rehabilitation of Offenders Act 1974 deals with the employment rights of ex-offenders
and allows some criminal offences to be spent after a period of offence-free time has elapsed.
This means that a previous offence would not have to be declared by the interviewee/employee
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if asked about a criminal record. This only applies to certain kinds of offences. The NACRO
website gives details of offences and time needed for them to become spent:

1990's
The Employment Act 1991 makes illegal discrimination on the grounds of trade union
membership.
The Disability Discrimination Act 1995 - disability is defined as:
A physical or mental impairment which has a substantial and long-term adverse effect on a
person's ability to carry out normal day-to-day activities.
As an employer we have a duty to make reasonable adjustments where any 'physical feature' of
the workplace or any 'arrangements' made by or on behalf of the employer substantially
disadvantages a disabled person compared to a non-disabled person. An employer has to take
such steps as it is reasonable in all the circumstances to prevent that disadvantage. As part of
the mandatory recruitment and selection training attendance is also required on the DDA course
at the University.
The Employment Rights Act 1996 covers the entire contractual relationship between
employee and employer. It should be noted that anything said during the recruitment and
selection process could be deemed to be contractual e.g. if you mention a salary to a person it
could be binding. In accordance with the Universities statute the only parties that can enter into
a binding contract with a new employee are Personnel on behalf of the VC.
Protection from Harassment Act 1997 protecting persons from harassment and similar
conduct, including stalking. We do have a Personal Harassment and Bullying procedure and
training.
Working Time Regulations 1998 imposed a maximum working week of 48 hours on average
over a specified period unless employees opt out of this. Employees working more than 13
weeks were entitled to a minimum of 4 weeks paid holiday. The Working Time (Amendment)
Regulations 2001 require that all employees receive holiday pay regardless of the length of
contract.
National Minimum Wage Act 1998 - enforced a minimum wage for all employees. Rates of
pay were uplifted with effect from 1 October 2003. The adult rate rose from 4.10 per hour to
4.50 per hour and the rate for 18 21's rose from 3.50 per hour to 3.80 per hour.
Public Interest Disclosure Act 1998 protects whistle-blowers who have acted in good faith
in reporting malpractice or cover-up.
Data Protection Act 1998 implements the data protection directive 95/46/EC.
Human Rights Act 1998 came into force on 2 October 2000 to give effect in the UK to the
rights guaranteed under the European Convention on Human Rights. The act places a

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statutory duty on courts and tribunals to interpret legislation in a way that is compatible with
convention rights.
Sex Discrimination (Gender Reassignment) Regulations 1999 afforded greater protection to
people who have undergone surgery to reassign their gender. The Gender Recognition Bill,
which received its first reading in the House of Lords on 27 November 2003 will give
transsexual people recognition in their acquired gender.

2000s
A new wave of equality legislation has pushed public authorities (which the University and
College are defined as being) to be proactive in promotion of equality and challenging of their
own policies and practices:
The Race Relations (Amendment) Act 2000 extended the RRA 1976 to cover discrimination
in services provided by public bodies including HEIs and FEs. It extends protection against
racial discrimination directly, indirectly or by victimisation. It places a number of enforceable
positive duties on public authorities of which the University is one.
The University must:

Eliminate unlawful racial discrimination

Promote equality of opportunity
Promote good relations between persons of different racial groups

These aims are realised through a Race Equality Scheme and Action Plan and through other
specific duties such as impact assessment of policies and practices and regular monitoring of
staff and students by ethnicity.
The Disability Discrimination Act 2005 extended the DDA 1995 in a similar way to the extension
of race legislation described above. Further positive general and specific duties have been
introduced to the public sector to enhance disability equality one of which is to establish a
Disability Equality Scheme and Action Plan. In addition the University must:

Eliminate unlawful disability discrimination and harassment

Promote equality of opportunity and positive attitudes towards disabled people
Take account of peoples disabilities (even if this means treating them more
favourably)
Encourage participation by disabled people in public life

These duties apply to all policies & practices of HEIs and cover staff and students
The Equality Act 2006 received Royal Assent on 16 February 2006 and has three main
purposes:

To establish the Commission for Equality and Human Rights

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To make discrimination unlawful on the grounds of religion or belief in the

provision of goods, facilities and services, the disposal and management of
premises, education and the exercise of public functions
To create a duty on public authorities to promote equality of opportunity
between men and women and to prohibit sex discrimination in the exercise of
public functions.

Public Authorities will need to establish a Gender Equality Scheme and Action Plan to detail
how they will meet the additional legal requirements introduced in the third point above.
Equal Treatment (General Framework Directive) in Employment (2000/78/EC) on 17
October 2000 the Employment and Social Policy Council of Ministers of the European Union
agreed a framework directive on equal treatment (Council Directive 2000/78). The UK adopted
the Directive on 27 November 2000. It sought to protect workers against discrimination on the
grounds of age, disability, religion or religious belief and sexual orientation. It will apply in
particular to access to employment, including selection criteria, terms of job offers and
promotion, access to training, terms and conditions of employment (including remuneration and
dismissal), and membership and activities of trade unions and employers associations. The
religion, belief and sexual orientation legislation came into force at the beginning of December
2003. The disability and age legislation must be in force by 2 December 2006. Positive action
is expressly permitted and there is a defence of genuine occupational requirement for all
types of discrimination. The Directive doesnt apply to the armed forces, but there are no other
excluded sectors.
Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 came into
force with effect from 1 July 2000 and ensures that part-time workers are afforded the same
pay, terms and conditions as those on full-time contracts.
Equal Pay on 11 December 2000 the DfEE issued a consultation paper Towards Equal Pay
for Women. It contained proposals to speed up and simplify tribunal procedures in equal pay
cases. Some of the proposals were to introduce a discrimination questionnaire and to replace
the two-year limit with a six-year limit on back pay.
The paper above also included proposals on the implementation of the EC Burden of Proof
Directive (97/80/EC). This required amendment to the SDA 1975 to widen the definition of
indirect discrimination and shifted the burden of proof towards the employer. The Sex
Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001 came into
force on 12 October 2001.

The Equal Pay Act 1970 (Amendment) Regulations 2003

These changes reflect the requirements of Article 141 of Treaty of Rome for equivalence and
effectiveness and European Court of Justice decisions to provide comparable treatment with
breach of contract claims. The main changes are:

Deadline for submitting an Equal Pay claim extended to 6 months after the
end of a stable employment relationship (e.g. a series of fixed term or termly
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contracts or series contracts). In the case of a stable relationship, the

applicant need only submit one claim covering all fixed term or termly
contracts.
Deadline for submitting an Equal Pay claim extended to 6 months after
discovery of a qualifying fact or concealment. If an employer deliberately
conceals a qualifying fact which is relevant to the equal pay claim or the
employee did not discover the qualifying fact until after the last day of
employment or the day the stable relationship ended, an equal pay claim can
be submitted.

ENGLAND AND WALES

Deadline for submitting an Equal Pay claim extended to 6 months after

employee ceases to be under a disability. This is defined as being a minor
(under 18) or of unsound mind.
Compensation for arrears of pay in disability or concealment cases can be
paid from the date of the contravention.
6 year limit for arrears of pay remains in standard cases.

These amendments focus on the need to be transparent and consistent in Equal Pay issues
and to conduct Equal pay audits.

The Sex Discrimination Act 1975 and Sex Discrimination

(amendment) Act 2006
These regulations are amended to prohibit discrimination after termination of employment, if the
act of discrimination arises out of or is connected to the employment relationship. This mirrors
the protections in the other equalities regulations.

The Gender Recognition Act 2004

The Act means that transsexual people can marry in their acquired gender, obtain a birth
certificate recognising the acquired gender, and obtain benefits and a state pension just like
anyone else of that gender. To get this legal recognition, transsexual people have to apply to
the Gender Recognition Panel and demonstrate that they have gender dysphoria, that they
have lived for at least the last two years in their acquired gender, and that they intend to live in
that gender until death. They must also be backed up by medical reports. Gender dysphoric is
the term used in the law for someone who identifies as the sex opposite to their physical
characteristics.

Civil Partnership Act 2004 came into force November 2005

The Act allows same-sex couples to make a formal legal commitment to each other by entering
into a civil partnership through a statutory civil registration procedure. This means that gay and
lesbian couples who register their relationship will have similar rights and responsibilities to
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married couples including, for example, the right to survivors' pension benefits. The Act and
explanatory notes can be viewed on the HMSO website.

The Implementation of the Race (2000/43) and Employment

(2000/78) Directives
These regulations amend existing discrimination law (race and disability) and introduce new
strands for religion/belief and sexual orientation:

Race Relations Act 1976 (Amendment) Regulations 2003

Employment Equality (Religion or Belief) Regulations 2003
Employment Equality (Sexual Orientation) Regulations 2003
Disability Discrimination 1995 (Amendment) Regulations 2003
Employment Equality (Age) Regulations 2006

Scope
These regulations contain common strands of protection against discrimination for all the
relevant groups, in all aspects of employment (including recruitment) and vocational training.
The regulations protect the rights of workers, which includes contractors and office holders.
They apply to all employers/businesses whatever their size and whether in the public or private
sector (including the police, barristers, fire service etc). Features of the relevant regulations are
highlighted below.

"Religion or belief" means any religion, religious belief, or similar philosophical

belief.
"Sexual orientation" means a sexual orientation towards the same sex,
opposite sex or both.
The revised Race regulations do not extend coverage to cases involving
colour and nationality.
The Disability Discrimination Act continues to allow for justification and the
duty to make reasonable adjustment.
Benefits, (such as pension schemes) which are dependent on marital status,
are excluded from the sexual orientation regulations but see also the
provisions of the Civil Partnership Act 2004.
Positive action in terms of providing training or encouragement to apply for
jobs is incorporated into the age, religion or belief and sexual orientation
regulations. There is recognition that there could be an absence of evidence
showing under-presentation in jobs or trade organisations so positive action is
allowed to prevent or compensate for disadvantages linked to age/religion or
belief/sexual orientation.
Burden of proof requirements lie with employer to disprove the applicant's
case.
The concept of post termination victimisation is introduced. An ex employee
can complain about discrimination or harassment which arises from the
employment relationship.
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Equality Act 2010 It brings 9 Equality Acts into 1 (including SDA, DDA, RRA, Equal Pay Act);

Gives parity of coverage across all protected characteristics;

Gives parity of coverage across employment and provision of goods, facilities and
services (age in due course);

Cuts across 9 protected characteristics

Race;

Disability;

Sex;

Sexual Orientation;

Religion and Belief (and no religion);

Gender reassignment (no longer have to be under medical supervision people are
protected if they have proposed, started or completed the change process transsexuals
are protected)

Age;

Marriage and Civil Partnership and

Pregnancy and Maternity.

Unlawful Discrimination
Direct Discrimination - You must not treat a person worse than someone else because of a
protected characteristic;
Indirect Discrimination You must not do something that has a worse impact on people who
share a particular characteristic e.g. taking a decision or applying a rule - unless you can
objectively justify your action;
Discrimination arising from disability - You must not treat a disabled person unfavourably
because of something connected to their disability;
Associative Discrimination - You must not treat a person worse than someone else because
they associate with a person who has a protected characteristic, such as being a carer for a
disabled child;
Discrimination by Perception - You must not treat a person worse because you wrongly
perceive them to have a protected characteristic, such as their sexual orientation;
Victimisation - You must not treat a person badly or victimise them because they have
complained about discrimination or helped someone else to complain;

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Harassment - You must not harass a person, such as telling jokes during an interview about
their religion and belief.

Main Employment Provisions

Most provisions were implemented on 1 Oct 2010, including:

Levelling up of protection from discrimination:

By association (e.g. carers Coleman v Attridge);
By perception;

Introducing indirect discrimination to disability;

Introducing a new concept of discrimination arising from disability as described above;

More difficult for disabled people to be screened out when applying for jobs;

Duty to make reasonable adjustments;

Making pay secrecy clauses unenforceable;

Changing definition of gender reassignment;

New powers for employment tribunals;

Using Positive Action

Definitions
The following definitions are common to the regulations:

Direct Discrimination

Direct discrimination is where someone is treated less favourably than others

because of their actual or perceived religion, sexual orientation, race, ethnic or
national origin or disability.
Workers will be able to bring a claim even if the discrimination was based on
(incorrect) assumptions about their religion or sexual orientation. They will not
be required to disclose their sexual orientation or religion in bringing their
claim. It will be sufficient that they have suffered a disadvantage because of
the assumptions made about their religion or sexual orientation.

Examples from which inferences of direct discrimination may be drawn include:

evidence of racist banter and/or abuse, sexist comments and innuendo;

failure to treat grievances seriously;
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inconsistent, irrational and subjective behaviour by employer;

failure to follow Codes of Practice in the area of equality of opportunity;
absence of an internal policy;
failure to train staff and managers in equality principles and best practice;
failure to keep records of job applications, appointments and promotions;
failure to monitor equality of opportunity.

Indirect Discrimination
Indirect discrimination occurs where a provision, criterion or practice which is applied generally,
puts persons of a particular religion or belief, a particular race or ethnic origin or national
origin a particular sexual orientation or a particular age group at a disadvantage compared
with other persons and cannot be shown to be a proportionate means of achieving a legitimate
aim.
This definition includes informal practices, thus widening the previous definitions within the
Race Relations Act. NB, this definition does not include disability.
For example:

insisting on unnecessary height requirements;

refusing training or promotion to part-timers;
fluency in language, not allowing the wearing of turbans
requiring women to wear skirts
word of mouth recruitment.

An employee could have claimed indirect discrimination only if the employer imposed a
requirement that could only be met by substantially fewer groups of people e.g. fewer women
than men, or vice versa. In recruitment, this was something without which the applicant would
not be able to get the job. As a result, selection criteria are often divided into 'essentials' and
'desirable', while not essential increased the applicants chance of success. Case law confirmed
that only the 'essentials' were caught by the legislation, while 'desirables' could, legally, be
discriminatory e.g. having to hold a full clean driving licence.
The new definition under the Burden of Proof legislation covers any provision, criterion or
practices that would be detrimental to a considerably larger proportion of one group than
another. All criteria used in recruitment, promotion etc, whether described as essential or not,
will require justification and should be reviewed. So although, the claimant will still have to
prove discrimination, the employment tribunal will have to use all its powers to draw inferences
from the facts. The drawing of inferences could be especially contentious in harassment claims,
which often hinge on one person's word against another's.
The new regulations will also make it easier to prove indirect discrimination. Instead of having
to prove, for example, that the "proportion of women who can comply is considerably smaller
than the number of men", the applicant to an employment tribunal would have to show only that
it "would be to the detriment of a considerably larger proportion of women than men".

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If an employment tribunal does reach a preliminary decision that discrimination has occurred, an
employer will be able to avoid liability only by proving that it did not discriminate. So the
decision of the employment tribunal will no longer be based on the balance of probabilities.
Finally, employees should note that if they discriminate, they may be held personally liable for
aiding and abetting the employer and may have to pay compensation to the claimant.

Harassment
Harassment is unwanted conduct which violates a persons dignity or creates an intimidating,
hostile, degrading, humiliating or offensive environment for them. Conduct shall be regarded as
having that effect only if, having regard to all the circumstances, including in particular the
perception of the person who is the subject of the harassment, it should reasonably be
considered as having that effect.

Victimisation
Victimisation occurs when someone is treated less favourably when they have made, or are
suspected of making a complaint or allegation, or have given evidence (or are suspected of
giving evidence) in such a complaint or allegation of discrimination. This does not apply if the
allegation, evidence or information was false and not made or given in good faith.

Burden of proof

All the new Regulations will implement the existing burden of proof provisions
in the SDA.
Once the person making the complaint has made out a prima facie case, it is
for the employer to prove he did not commit the act of discrimination or
harassment.

Post-employment victimisation

It is unlawful to discriminate against someone by subjecting him to a detriment

or harassment where the discrimination of harassment arises out of and is
closely connected to that relationship which has ended.
One implication for Institutions to consider relates to policies concerning
references and consistency in providing them. The requirements of the Data
Protection Act refer to reducing to the minimum, the retention of personal data.

Forms of unlawful discrimination

Reverse Discrimination
is unlawful. It is unlawful to discriminate in favour of a person or group of persons or to have a
quota system for particular ethnic or gender groups unless a persons gender or ethnic origin is
a genuine occupational qualification (GOQ).

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Positive Discrimination
is illegal. It generally means employing someone from an under-represented group, whether or
not they have the requisite skills and qualifications. Positive discrimination equates most
closely with what is referred to as affirmative action in the United States. It is frequently
confused with what is referred to and encouraged by UK legislation as positive action.

Forms of lawful discrimination

Age
There are limited circumstances when it is lawful to treat people differently because of their age.
This might be where an objective justification exists for treating people differently this has to
be a proportionate means of achieving a legitimate aim. A legitimate aim must correspond with
a real need on the part of the employer. It might include:

economic factors such as business needs

health and safety considerations
the particular training requirements of the job

To be considered proportionate, the outcome of the different treatment must actually contribute
to a legitimate aim, the effect must be significantly outweighed by the importance and benefits
of the legitimate aim and there should be no reasonable alternative to the action being taken.
The test of Objective Justification will be open to challenge and there must be evidence to show
that the action taken satisfies the criteria of the test.

Genuine Occupational Requirement (GOR)

References to particular types of jobs no longer exist; there is no longer a

genuine occupational qualification, (GOQ) e.g. acting.
Where employment is for purposes of an organised religion, regulation 7 (3)
allows the employer to apply a requirement related to sexual orientation so as
to comply with the doctrines of the religion or avoid conflicting with followers
religious convictions. This applies to employment in a church or temple, for
example, but does not necessarily apply to any employment, which is (or is
claimed to be) of a religious character.

Positive Action
Is legal, as defined by the SDA, the RRA, religion and sexual orientation regulations, for
example:

targeted advertising
provision of training for groups under-represented in specific areas of work.

It may also refer to:

providing on-site crche facilities

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flexible working hours

pro-rata rights and conditions of service for part-time staff
family friendly policies
improving physical access and/or providing access to facilities for training for
work etc.

Why bother?
Positive action enables employers to make good intentions meaningful and try to ensure the
spirit of the law is followed.
Positive action by employers is required precisely because different groups in society
experience different barriers to participation in the employment market.
Positive action attempts to identify and remove such barriers in order that people may compete
on a more equal footing for such employment opportunities that are available. In this respect,
positive action implies that different categories of people are treated differently in order to
overcome inappropriate barriers to their participation in society.
Equal opportunities, therefore, is not about treating everyone the same or equally, but rather it is
about treating people equitably, according to need and acknowledging their diversity.

Targets are legal

They are recommended by the Commission for Racial Equality (CRE), the Equal Opportunities
Commission (EOC).
Targets can best be described as aspirations.
The setting of targets enables senior management in an organisation to measure the
organisations progress towards meeting the goal of being an equal opportunities employer and
can demonstrate that change is being achieved.
Targets do not interfere with the merit principle in the recruitment and selection process. At no
point can somebody be appointed only because they were from a group currently underrepresented on the staff in the University.
Targets can be both quantitative and qualitative.
Quantitative targeting involves not setting a maximum figure like a quota but setting a minimum
figure to aim for and possibly exceed. This naturally leads into a process of action-planning to
achieve this which is the preferred model of the University of Bradford.

Quotas are illegal.

Quotas require that a certain percentage of jobs be specifically reserved for, or filled by,
particular racial groups, or people of a particular gender.

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Instructions/pressure to discriminate
It is unlawful to give instructions to discriminate or act on instructions or to give in to pressure to
discriminate.

Sexual and Racial Harassment

are both unlawful and may amount to direct discrimination as these forms of conduct may cause
an individual to be put at a disadvantage to other colleagues at work.
It is an employers responsibility to provide a working environment for all employees, which is
safe and free from harassment and bullying.
It is a line managers responsibility to investigate any allegation or complaint of harassment
and/or bullying.

Monitoring
The entire process of record keeping, collation of statistics, analysis of raw data, presentation
of data in report form and utilisation of monitoring reports in policy formulation. monitoring is a
continuing exercise. It implies the reviewing of effectiveness and the development of new forms
of monitoring in the light of innovations in employment policy and practice.
In the employment field, there are two main forms of monitoring:

the recruitment process

the composition of the existing workforce.

With the introduction of the Equality Act in 2010 it is now a legal requirement to monitor
ethnicity, disability, gender, sexual orientation and religion and belief.

AJR Sept 2006; revised - Dec 2008; July 2009; September 2010

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