The law and regulation explained

Who is protected?

The Equality Act 2010 protects people against discrimination on the grounds of the following characteristics: 

1. Age
2. Disability
3. Gender reassignment
4. Marriage and civil partnership
5. Pregnancy and maternity
6. Race
7. Religion or belief
8. Sex
9. Sexual orientation

Employees are protected, as are workers (ie people who are not employed, but who contract to provide a personal service and who are not in business on their own account). Job applicants and others who work in the business are also protected but truly self-employed people are not covered by this protection.

The regulatory environment in which optical practices operate also creates certain obligations.

The General Optical Council (GOC)

The GOC’s standards make individual and business responsibilities clear: 

Standard for individuals

13.2 Promote equality, value diversity and be inclusive in all your dealings and do not discriminate on the grounds of gender, sexual orientation, age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief”
 
Standards for businesses

2.2.5 Promotes equality, values diversity and is inclusive in all dealings with staff, patients and others and does not discriminate on the grounds of gender, sexual orientation, age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief

1.1.5 Make staff aware that where they have raised concerns which have not been resolved within the business, they may escalate or report these to a higher authority such as a professional regulator (whistleblow) and certain aspects of this are protected by law

The National Health Service

All optical practices that provide services to the NHS have signed a contract that includes obligations in respect of equality, for example the NHS Workforce Race Equality Standard.  

The College of Optometrists 

Although The College of Optometrists is not a regulator, it does place expectations on its members which are worth mentioning here. It says that practitioners must not discriminate against patients (D9) or colleagues (C165), on the grounds of any protected characteristic. An employer who is a member of the College could be in breach of C165 by not taking action to protect a colleague who is the subject of racist comments made by another employee or a patient against one of their employees.

Direct discrimination 

Staff should not be treated less favourably because of one of the protected characteristics. 

This can include treating someone badly because of their association with someone else with a protected characteristic eg treating an employee with a disabled child badly.

Indirect discrimination

Indirect discrimination occurs when a rule or condition that applies to all staff particularly disadvantages a group sharing a particular characteristic. Such rules or conditions are only justified if they have a legitimate aim and go no further than necessary.

For example, a requirement that all employees be over 5' 10" tall because the employer has some high shelves in their practice would disadvantage women as compared to men. It wouldn’t be justified because there are less restrictive measures the employer could use, like lower shelves, ie the rule goes further than necessary. 

Harassment

It is unlawful for an employer to engage in:

1. Unwanted conduct related to a relevant protected characteristic
2. Which has the purpose or effect of
3. Violating that person’s dignity or
4. Creating an intimidating, hostile, degrading, humiliating or offensive environment for them

Conduct does not need to be intentionally harassing or offensive to be unlawful - it is enough if it has that effect. Therefore “banter” or jokey remarks not intended maliciously could be unlawful if they create a hostile, degrading, humiliating or offensive environment. 

The issue need not relate to the complainant’s own protected characteristic either. As an example, an employer may have a culture of allowing racist jokes to be told in the workplace. Any person might find that offensive, even if the jokes are not about people of their own racial or ethnic background. 

Victimisation

It is also unlawful to subject someone to a detriment because they have: 

1. Claimed or asserted discrimination
2. Given evidence or information in someone else’s discrimination claim
3. Done anything else in connection with the Equality Act 2010
4. Made an allegation that there has been a breach of the Equality Act

The Equality Act 2010 defines race as including colour, nationality and ethnic or national origins. A racial group can be made up of one or more distinct racial groups, for example: Black, White, Chinese, Romanian, Black Briton, British Asian, Romany Gypsies and Irish Travellers. 

According to some case law, caste is also included, but in its 2018 response to a consultation the Government has decided against further legislation, and chosen to rely instead on emerging case law to provide the necessary protection against unlawful discrimination because of caste.

Race discrimination can include the following types of conduct which have been highlighted to us recently:

• Discrimination against migrants - people born elsewhere who live and work in the UK
• Xenophobia against optometrists from African, Asian, Irish, Eastern European ethnicities
• Casual racism in the workplace - negative stereotypes or prejudices about people on the basis of race, colour or ethnicity. Examples include jokes and off-hand comments
• Islamophobia remarks based on prejudice against Muslims 
• Stereotyping, which is attributing the same characteristics to all members of a group sharing a protected characteristic, regardless of individual differences.  These are often based on misconceptions, incomplete information and/or false generalizations

There is often some cross-over between race and religious discrimination. 

• Understand what is happening in your practice. Identify any structural and cultural barriers which may contribute to racial inequality in the workplace
• Avoid making generalisations. The term BAME encompasses people from a wide range of backgrounds, cultures and traditions who are all individuals who may be facing different barriers to career progression
• When examining the work experience of people with a particular ethnic background, be aware of the potential interplay between this identity and others. For example, does being a woman from an ethnic minority background mean you have equal opportunities through progress on gender, but are still at a disadvantage because of being from a minority ethnic group. And Muslim women may experience discrimination on grounds of gender, race AND religion
• Critically appraise your practice’s culture. People perform at their best when they feel able to be themselves, whatever their backgrounds. If you don’t have an inclusive culture people will feel un-engaged and you will not get the best of their talent

The Equality Act 2010 gives additional rights to people who are considered to have a disability on top of their right not to be discriminated against.

Members should contact our legal team on [email protected] with any queries in this regard, as specific issues will depend on the circumstances.

Who is considered disabled?

The law covers both physical and mental impairments. Broadly, a medical condition will amount to a disability if it has a long-term (more than a year) and substantial (more than minor) adverse effect on a person’s ability to carry out normal day-to-day activities (or if it would have that effect were it not for any measures being taken to correct it). In terms of considering the impact that a condition would have, one should therefore imagine how the employee would be if they were receiving no medical treatment.

Reasonable adjustments

Under section 20 of the Equality Act 2010 an employer has a duty to make reasonable adjustments for disabled employees. This means that where a provision, criterion or practice places a disabled person at a substantial disadvantage an employer should take such steps as are reasonable to avoid the disadvantage.

This might include things like allowing an employee to adjust their working hours, assigning some of their tasks to colleagues or providing specific equipment to assist them at work. A number of factors are relevant when considering what is reasonable. These include the cost of the adjustment, how well it will alleviate any disadvantage, and how difficult it is for the employer to provide.

Discrimination arising from disability

There is also a duty not to treat disabled people unfavourably because of something arising in consequence of their disability (s15 Equality Act 2010). For example, disciplining an employee because of time off sick due to their disability might fall within this category.

There is a justification defence that the employer can raise if they can show that the treatment is a proportionate means of achieving a legitimate aim. For example, they may say they have the legitimate aim of needing to manage their workforce. To show proportionality an employer would need to show that the treatment goes no further than necessary in pursuit of the aim.

Note for Northern Ireland

In Northern Ireland an employer also has a duty to make reasonable adjustments under section 4A of the Disability Discrimination Act 1995 for disabled employees and not to treat them unfavourably because of something arising in consequence of their disability.

• Advisory, Conciliation and Arbitration Service 
• EHRC Employment Statutory Code of Practice
• Supplement to the EHRC Employment Statutory Code of Practice
• EHRC Statutory Code of Practice on services, public functions and associations
• Supplement to the EHRC Services Statutory Code of Practice
• EHRC guide, What equality law means for your business
• EHRC guidance for service providers
• EHRC guidance for service users