This article is the second part in a series providing a more detailed analysis of the provisions in the new Equality Bill. The last article, in the June 2009 edition of the NPIA Digest, covered Part 1 (socio-economic equalities) which places a duty on certain public authorities to consider the desirability of reducing socio-economic disadvantages in exercising their functions. It also covered Chapter 1 of Part 2 (Equality – key concepts), which set out the protected characteristics under the Bill.

The protected characteristics are:

• Age


• Disability


• Gender reassignment


• Marriage and civil partnership


• Pregnancy and maternity


• Race


• Religion and belief


• Sex


• Sexual orientation

These protected characteristics are relevant in determining whether conduct which is prohibited under the Bill has taken place. This article will consider Part 2 of Chapter 2, which defines the different types of prohibited conduct.

Part 2: Equality – key concepts

Chapter 1: Prohibited Conduct

Clause 13 sets out the prohibited conduct of direct discrimination. Direct discrimination occurs if, because of a protected characteristic, a person (A) treats another person (B) less favourably than A treats or would treat others. This definition will remove the current requirement for the victim of the discrimination to have one of the protected characteristics of age, disability, gender reassignment and sex, as it is wide enough to cover less favourable treatment because of the victim’s association with a person who has a protected characteristic. The clause will cover less favourable treatment where a person is thought to have a protected characteristic.

The clause gives further guidance on what will be classed as direct discrimination in relation to some of the protected characteristics:

• In relation to disability, treating a third person with a disability more favourably than a person without that disability, if done in a way permitted by the Bill, does not amount to direct discrimination.


• Less favourable treatment because of age will not amount to direct discrimination if A can show this is a proportionate means of achieving a legitimate aim.


• In relation to marriage and civil partnership, direct discrimination only applies in relation to a contravention of Part 5 if the less favourable treatment is because B is married or a civil partner.


• Segregating B from others because of race will amount to less favourable treatment.


• If the less favourable treatment is because of religion or belief, it does not matter whether the religion or belief is also A’s.


• If the protected characteristic is sex, less favourable treatment of a woman includes (apart from for the purposes of Part 5 (work)) less favourable treatment because she is breast-feeding, and if B is a man no account is to be taken of special treatment of a woman in connection with pregnancy or childbirth.

Clause 14 details what constitutes discrimination arising from disability. It will be discrimination if A treats B in a particular way, and because of B’s disability the treatment amounts to a detriment, where A cannot show that the treatment is a proportionate means of achieving a legitimate aim. This does not apply where A shows that A did not know, and could not have reasonably been expected to know, that B had the disability. It can apply even where A has complied with a duty to make reasonable adjustments in relation to B. This clause aims to re-establish the intended protection for disabled people which is no longer provided by the current law following the judgement in London Borough of Lewisham v Malcolm [2008] UKHL 43.

Clause 15 has effect in relation to gender reassignment in case of absence from work for the application of Part 5 (work). It will be discrimination for a person to treat B less favourably because they are absent from work because of gender reassignment than if their absence was because of:

• Sickness or injury.


• If B’s absence had been for some other reason and it is not reasonable for B to be treated less favourably.

B’s absence will be because of gender reassignment only if it is because the person is proposing to undergo, is undergoing or has undergone the process (or part of the process) mentioned in clause seven of the Bill.

Pregnancy and maternity discrimination in non-work cases is covered in clause 16, and has effect in relation to Part 3 (services and public functions), Part 4 (premises), Chapter 2 of Part 6 (further or higher education) and Part 7 (associations). Discrimination will occur where A treats B less favourably because of A’s pregnancy. It will occur also where, in the period of 26 weeks beginning on the day B gives birth (either to a live child or, where 24 weeks of the pregnancy have passed, to a dead child) A treats B less favourably because she has given birth, including in particular to less favourable treatment because A is breast feeding. Less favourable treatment in this manner, in the applicable period, will not amount to sex discrimination. For the purposes of clauses 16 and 17 ‘less favourable treatment’ is a reference to treating B less favourably than is reasonable.

Clause 17 sets out pregnancy and maternity discrimination in work cases, and has effect in relation to Part 5 (work). A will discriminate against B if A treats B less favourably because of the pregnancy, or because of illness suffered by B because of the pregnancy. This applies where B is in the protected period of pregnancy, which begins when the pregnancy begins and ends, if B is entitled to ordinary and additional maternity leave, on the date she returns to work, or in other cases, at the end of two weeks from the end of the pregnancy. Less favourable treatment for these purposes includes a decision taken during the protected period which is not implemented until after the protected period has ended.

A will also discriminate against B because of pregnancy or maternity if A treats her less favourably because she is on compulsory maternity leave, or if she is exercising, seeking to exercise, has exercised or sought to exercise, the right of ordinary or additional maternity leave.

Clause 18 sets out the prohibited conduct of indirect discrimination. A will discriminate against B if A applies a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s. Such a provision, criterion or practice will be discriminatory if:

• A applies, or would apply it, to persons who do not share B’s characteristic.


• It puts, or would put, people who do share B’s characteristic at a disadvantage, when compared with persons not sharing it.


• It puts, or would put, B at a disadvantage.


• A cannot show that it is a proportionate means of achieving a legitimate aim.

In relation to clause 18, the relevant protected characteristics are age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex, and sexual orientation. Indirect discrimination does not apply to the protected characteristic of pregnancy and maternity. The clause replaces similar current legislation, applying the EU definition of indirect discrimination to ensure uniformity across the protected characteristics.

Clauses 19 to 21 cover the situation where a person (A) is under a duty to make reasonable adjustments. Clause 19 sets out that the duty to make reasonable adjustments comprises three requirements, which apply where a disabled person is placed at a substantial disadvantage in comparison to non-disabled person. The first requirement is one requiring A to take steps to avoid any