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Equality Mattersfor ChildrenA guide for children’s serviceson the Equality Act 2010
The Children’s Rights Alliance for England (CRAE) protects the human rights of childrenby lobbying government and others who hold power, by bringing or supporting testcases and by using national and international human rights mechanisms. We providefree legal information and advice, raise awareness of children’s human rights, andundertake research about children’s access to their rights. We mobilise others, includingchildren and young people, to take action to promote and protect children’s humanrights. Each year we publish a review of the state of children’s rights in England.Karon Monaghan QC from Matrix Chambers wrote this publication.We are very grateful to the following people for commenting on previous versionsof this publication: Paul Devlin from Action for Children; Barbara Hearn from theNational Children’s Bureau; Claire Hyde from National Youth Advocacy Service(NYAS); Maggie Jones from Children England; and Naomi Phillips from the BritishHumanist Association.ISBN 978-1-898961-31-4Children’s Rights Alliance for England94 White Lion StreetLondonN1 9PFT: 020 7278 8222E: info@crae.org.ukW: www.crae.org.ukNovember 2011This publication is supported by the European Union Programme for Employment andSocial Solidarity - PROGRESS (2007-2013).This programme is managed by the Directorate-General for Employment, socialaffairs and equal opportunities of the European Commission. It was established tofinancially support the implementation of the objectives of the European Union inthe employment and social affairs area, as set out in the Social Agenda, and therebycontribute to the achievement of the Lisbon Strategy goals in these fields.The seven-year Programme targets all stakeholders who can help shape thedevelopment of appropriate and effective employment and social legislation andpolicies, across the EU-27, EFTA-EEA and EU candidate and pre-candidate countries.PROGRESS mission is to strengthen the EU contribution in support of Member States’commitment. PROGRESS is instrumental in: Providing analysis and policy advice on PROGRESS policy areas; Monitoring and reporting on the implementation of EU legislation and policies inPROGRESS policy areas; Promoting policy transfer, learning and support among Member States on EUobjectives and priorities; and Relaying the views of the stakeholders and society at large.For more information see: http://ec.europa.eu/progressThe information contained in this publication does not necessarily reflect the positionor opinion of the European Commission.
Contents1 IntroductionPage 42 Overview of the Equality Act 2010Page 53 Protected characteristicsPage 7 Pregnancy and maternity Race Religion and belief Sex Sexual orientation Discrimination arising from disability Reasonable adjustments Harassment Public functions Accommodation Clubs After a relationship has ended Gender reassignment, marriage and civil partnership Indirect discrimination Services Work Disability Direct discriminationPage 20 Schools, further education and community services Age4 Prohibited conduct5 Scope of Equality Act protection and provision6 Public sector equality duty and children’s servicesPage 267 Positive actionPage 298 EnforcementPage 329 Human Rights ActPage 3310 Other resourcesPage 3411 FeedbackPage 35Page 12 VictimisationEquality Matters for Children3
1. IntroductionThis guide is for local authority children’s services and voluntaryorganisations providing services to children and young people.Its aim is to explain the rights that children and young people have under the EqualityAct 2010 (‘the Equality Act’); and to set out the duties that are imposed on children’sservices and voluntary organisations when they are carrying out their functions andproviding services.All people working with, and for, children and young people in the statutory andvoluntary sectors must be aware of the Equality Act because: It guarantees many rights for children and young people which children’s serviceseither must uphold themselves, or can support children and their families to protect If rights in the Equality Act are violated by children’s services or voluntaryorganisations, they will be committing an unlawful act and a child or young personwill have the right to go to court and claim compensation.In addition to giving rights to children and young people, the Equality Act imposesduties on local authorities, including children’s services – and, in some circumstances,voluntary organisations – to take action directed at promoting equality. To ensure theseduties are complied with, children’s services and voluntary organisations (in respect ofsome of their activities) must take positive steps to meet certain equality objectives.It is usually helpful to consider the Human Rights Act 1998 alongside the Equality Act,and this is briefly considered at the end of this guide.4
2. Overview of the Equality ActThe Equality Act is now the main source of UK equality law.The values underpinning it are those reflected in many humanrights instruments, including respect for the dignity andworth of all people.Respect for human dignity is a core theme running through all equality guarantees andequality is an essential prerequisite to respecting dignity. In this way equality and humanrights are intimately linked. This can be seen in the United Nations Convention on the Rightsof the Child (CRC) which contains its own equality guarantee, requiring states to respect andensure the rights in the treaty to each child without discrimination, irrespective of the child’sor his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or otheropinion, national, ethnic or social origin, property, disability, birth or other status.Children’s services and voluntary organisations working with children and youngpeople will be familiar with many of the concepts under the Equality Act. But there aresome important differences from previous legislation and so care needs to be taken tomake sure that the Equality Act and its impact are fully understood.The Equality Act extends protection beyond previous legislation and creates newconcepts of discrimination. It is important, therefore, that children’s services andvoluntary organisations do not simply rely on old guidance or training.The CRC is founded on respect for the inherent dignity of each child as its preambleand its substantive provisions make clear. The Equality Act gives concrete realisation tosome of the rights in the CRC and should be viewed as a tool for securing respect forthe inherent dignity of all children and young people.The Equality Act brings together discrete legislative measures addressingdiscrimination connected to sex, race, disability, religion and belief, sexual orientationand age, developed from the 1960s onwards. The Act repealed and largely replicated: The Sex Discrimination Act 1975; The Race Relations Act 1976 (as amended); The Disability Discrimination Act 1995 (as amended); The Religion and Belief Regulations 2003; The Sexual Orientation Regulations 2003; The Equality Act 2006 (which addressed religion and belief discrimination outsidethe spheres of employment and occupation); and The Sexual Orientation Regulations 2007 (which addressed sexual orientationdiscrimination outside the spheres of employment and occupation).Equality Matters for Children5
The Equality Act at a glanceIdentifies the “protected characteristics” as: Age Disability Gender reassignment Marriage and civil partnership Pregnancy and maternity Race Religion and belief Sex Sexual orientationDefines “prohibited conduct” as: Direct discrimination Indirect discrimination Discrimination arising from disability Reasonable adjustmentsMakes it unlawful to engage in prohibited conduct relating to aprotected characteristic in the context of certain activities (“theunlawful acts”). These activities are: Providing services Exercising public functions Letting, selling or managing accommodation Clubs Providing education and community services Providing work and the treatment of workers In relation to those relationships that have come to an endImposes duties on public bodies and voluntary organisations inrespect of some activities. These are known collectively as the“public sector equality duty”.Allows children’s services and voluntary organisations to takepositive action to ensure that the needs of all children are met. Harassment Victimisation6The Equality Act does not require children’s services and voluntaryorganisations, or other bodies concerned with promoting the interestsof children and young people, to treat all children in the same way. Itrecognises that children and young people, like all people, may requirevaried and different treatment to ensure they are treated fairly and theirparticular needs met. This is explained more fully below.
3. Protected characteristicsThe Equality Act prohibits discrimination, harassment and victimisationconnected to the “protected characteristics”. It also imposes duties on publicbodies and voluntary organisations in certain circumstances, including a duty tomake reasonable adjustments. The meaning of “discrimination”, “harassment”and “victimisation” and the duties are explained below (pages 13-19).It is not just people who have the protected characteristics that are protected: in most circumstances,people who are associated with others who have the relevant protected characteristics are alsoprotected. This applies to parents, daughters and sons and siblings. People who are perceived tohave those characteristics are also protected. This is explained below.Equality Matters for Children7
The protected characteristics are: Age Disability Gender reassignment Marriage and civil partnership Pregnancy and maternity Race Religion and belief Sex Sexual orientationAgeAge means chronological age. It refers to a particular age (for example, children under theage of 16) as well as an age group (for example, children between the ages of 13 to 16).Age groups may also be relative (for example, ‘younger than me’).“Physical or mental impairment” does not have any technical meaning. Anybodywho is impaired physically or mentally will satisfy this condition. An impairmentmay result from illness or it may consist of an illness; and it may be visible orinvisible. It does not matter whether it is possible to categorise a conditionas either a physical or a mental impairment and the underlying cause of anyimpairment may be hard to establish. It is not necessary to identify how anyimpairment was caused.A disability can arise from a wide range of impairments which can be: Sensory impairments, such as those affecting sight or hearing Impairments with fluctuating or recurring effects such as rheumatoid arthritis,myalgic encephalitis (ME)/chronic fatigue syndrome (CFS), fibromyalgia,depression and epilepsy Progressive, such as motor neurone disease, muscular dystrophy, forms ofdementia and lupus (SLE) Organ specific, including respiratory conditions, such as asthma, andcardiovascular diseases, including thrombosis, stroke and heart diseaseDisability Developmental, such as autistic spectrum disorders (ASD), dyslexia anddyspraxiaThe meaning of “disability” and “disabled person” is an autonomous meaning underthe Equality Act. This means that, however those expressions might be defined underother laws or guidance, for example under social security laws, unless they match thedefinition under the Equality Act those other definitions are irrelevant. Learning difficultiesThe Equality Act states a person has a “disability” if she or he:An impairment has a substantial adverse effect on a person’s ability to carryout normal day-to-day activities if its effect is more than minor or trivial and itinterferes with activities that are normal for many of us. These activities will includethings like eating, washing and dressing, playing, walking or going outside. Has a physical or mental impairment; and The impairment has a substantial and long-term adverse effect on their ability tocarry out normal day-to-day activities.A reference to a disabled person under the Equality Act is a reference to a personwho has a disability.The Equality Act applies to a person who has had a disability as well as to a personwho has a disability now. This means if a child or young person has had a disability inthe past, she or he is protected under the Equality Act.8As to each of the elements above:3. Protected characteristics Mental health conditions and mental illnesses, such as depression, schizophrenia,eating disorders, bipolar affective disorders, obsessive compulsive disorders, aswell as personality disorders and some self-harming behaviour.A girl has had anorexia for a long period of time and this restricts her abilityto engage in eating. This would be an impairment which has a substantialadverse effect on her ability to carry out normal day-to-day activities.
In general, specialist activities – like playing an instrument to a very high standard orinternational competition level gymnastics – will not be seen as “normal” day-to-dayactivities for these purposes. However, closer examination of how these actions areperformed might shed light on whether the child’s normal day-to-day activities areadversely affected.A child plays the piano to a high standard, and often takes part inpublic performances. She has developed juvenile idiopathic arthritiscausing pain, swelling and stiffness around her hands and wrists. She cancontinue to play the piano, but not to such a high standard; and she hasto take frequent breaks to rest. This would not of itself be an adverseeffect on a normal day-to-day activity. However, as a result of herimpairment, the girl also finds it difficult to operate the computer anddress herself. This is an adverse effect on a normal day-to-day activity.In considering whether an effect is more than minor or trivial, the way in which the activityis undertaken, or the time it takes for a person to carry out the activities, will be relevant.A 10 year-old child has cerebral palsy. The effects include musclestiffness, poor balance and unco-ordinated movements. The child is stillable to do most things for himself, but he gets tired very easily and itis harder for him to accomplish tasks like eating and drinking, washingand getting dressed. Although he has the ability to carry out everydayactivities such as these, everything takes longer compared to a childof a similar age who does not have cerebral palsy. This amounts to asubstantial adverse effect.An impairment is long-term if: It has lasted at least 12 months; or The total period for which it lasts, from the time of the first onset, is likely to be atleast 12 months; or It is likely to last for the rest of the life of the person affected.The cumulative effect of related impairments should be taken into account whendetermining whether the person has experienced a long-term effect. Where animpairment has a substantial effect on a child or young person and then stops,but is likely to recur, then the substantial effect is treated as continuing. This coversimpairments which have a substantial adverse effect but whose effects are intermittent– for example asthma, the symptoms of arthritis or epileptic seizures.In looking at whether a child or young person has an impairment that has a substantialadverse effect, when the effects are mitigated because of the impact of medication orother measures (like equipment such as a wheelchair or adapted computer keyboard) orassistance, it is necessary to consider whether without that medication, or without thoseother measures or assistance, the impairment would have a substantial adverse effect.Some impairments are treated as disabilities whatever their effects and even ifasymptomatic. These are HIV infection, cancer and Multiple Sclerosis. Some peopleare also treated as disabled automatically and these are people who are certifiedas blind, severely sight impaired, sight impaired or partially sighted by a consultantophthalmologist. However, a person who is short or long-sighted, and whose sight can beimproved with glasses, will not be disabled unless even with glasses their sight impairmenthas a substantial adverse effect on their ability to carry out normal day-to-day activities.A severe disfigurement (though not if it consists of a tattoo or piercings) is to be treatedas having a substantial adverse effect on a person’s ability to carry out normal day-today activities. These will include large birth marks, scars, limb or postural deformation(including restricted bodily development) or diseases of the skin. Whether or not theyare severe may depend on where they are located so that a large facial birth mark maybe severe whereas it would not be if it were on a child’s back.Some behaviours and impairments are excluded from Equality Act protection. These are: Addiction to, or dependency on, alcohol, nicotine, or any other substance(other than in consequence of the substance being medically prescribed) The condition known as seasonal allergic rhinitis (hayfever), except where itaggravates the effect of another condition Tendency to set fires Tendency to steal Tendency to physically or sexually abuse others Exhibitionism Voyeurism.Equality Matters for Children9
However, it is only those particular behaviours and impairments that are excluded. Childrenand young people will be protected in respect of other impairments, even if related.A young person has a conduct disorder that has lasted several yearsand which causes him to engage in violent physical fights and stealing.It also causes him to lie and to take risks with his own health and safety.The conduct disorder, as an impairment which has a substantial andlong-term adverse effect on the young person’s ability to carry outnormal day-to-day activities, would be a disability. However, the youngperson would not be protected by the Equality Act in relation to anydiscrimination experienced because of his violence or stealing.A young person has developed an alcohol dependency and suffers fromdepression as a consequence. He finds it difficult to get to school and sois late on several occasions. The school punishes him by excluding himfor a number of days. The boy can claim that his school has discriminatedagainst him because of something arising in consequence of his disabilityand has failed to make “reasonable adjustments” (see below). This isbecause the exclusion arose from the effects of his depression eventhough the underlying cause of it was alcohol dependence.Important: the above guidance applies to children just as much as to adults.However, a physical or mental impairment experienced by a child under six yearsold is to be treated as having a substantial and long-term adverse effect on the abilityof that child to carry out normal day-to-day activities if it would normally have asubstantial and long-term adverse effect on the ability of a person aged six years orover to carry out normal day-to-day activities. This special provision ensures that,where a child is too young to have developed the capacity to act in the respectscontemplated by the disability provisions in the Equality Act – for example, to wash ordress, or in the case of a baby, to walk or sit unaided – they will still be recognised asdisabled if their impairment/s would have that effect in an older child or adult.103. Protected characteristicsGender reassignmentGender reassignment is a major process which involves a person reassigning their sex andthe Equality Act covers people who have undergone, are undergoing or are proposingto undergo gender reassignment. It is not necessary for this to be under medicalsupervision. It may involve consistently changing dress and the social attributes of gender.After many years of identifying as a b
The Equality Act is now the main source of UK equality law. The values underpinning it are those reflected in many human rights instruments, including respect for the dignity and worth of all people. Respect for human dignity is a core theme running through all equality guarantees and equ
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