Occasionally Fife Centre for Equalities are asked questions about the application of Equality Act 2010 in specific situations.  Below is a sample of questions we are frequently asked.  Please note that FCE does not employ any legal advisors.  The advice is based on our knowledge, experience and research on the subject matters.  We recommend that you seek formal legal advice as and when necessary.

FCE follows the processes as advised in the Equality Human Rights Commission (EHRC) Equality Act 2010 – Human Rights Commission.

To read the EHRC Equality Act 2010 Advisor Handbook, click here.

If you have any concerns or queries that you would like us to answer, please don’t hesitate to contact us via info@centreforequalities.org.uk, call 01592 645310 or text us at 07800005834. 

Alternatively, you can share your concerns using our online Community Concerns form.

If an employer has a requirement that employees work set hours every week and that one of their employees, who is a woman with childcare responsibilities, is required to work set hours each week, the employer might be committing indirect discrimination.  

Indirect sex discrimination is made unlawful by section 19 of the Equality Act 2010 (‘the Act’). According to the Act, indirect discrimination may occur when an employer applies an apparently neutral provision, criterion or practice to all employees, but which provision, criterion or practice puts workers sharing a protected characteristic (sex) at a particular disadvantage.  

The Employment Statutory Code of Practice (‘the Code’) has quasi-legislative status and can be used by the courts to interpret the Act. It states there are four requirements for indirect discrimination to take place:  

  • the employer applies (or would apply) the provision, criterion or practice equally to everyone within the relevant group including a particular worker; 
  • the provision, criterion or practice puts, or would put, people who share the worker’s protected characteristic at a particular disadvantage when compared with people who do not have that characteristic; 
  • the provision, criterion or practice puts, or would put, the worker at that disadvantage; and 
  • the employer cannot show that the provision, criterion or practice is a proportionate means of achieving a legitimate aim.  

The courts have given the phrase ‘provision, criterion or practice’ a wide interpretation, to include any formal or informal policies, rules, practices, arrangements, criteria, conditions, prerequisites, qualifications or provisions. On the face of it the provision must be a neutral one, applicable to everyone in the group of employees.  

The worker making a claim for indirect discrimination must show that they have experienced a disadvantage. The Code provides the example of an employment contract clause requiring employees to travel abroad at short notice. This clause puts women employees at a disadvantage because women are more likely to be the carers of children. Female employees who did not have that clause in their contract cannot make a claim for indirect discrimination.  

Detriment, a similar concept to disadvantage, has been defined by the courts as something that a reasonable person would complain about. Reference to a reasonable person is an objective test, from the perspective of a third-party observer. Statistical information can be used to point out to a disadvantage. Both workplace statistics and national statistics can be used. The Employment Tribunal might also make use of expert evidence who could point out to a disadvantage for a group of people sharing the same protected characteristic.  

Once it is established that a particular group is put at a disadvantage because of a provision (the ‘pool for comparison’), then a comparison between that group and the rest of the employees to which the provision applies must be undertaken. To exemplify how the Employment Tribunal might work out, based on statistics, if one particular group is disadvantaged by a provision, the Code, at page 66, describes the case of a single mother who is forced to resign from her job because she cannot comply with her employer’s new shift system.  

A worker claiming indirect discrimination must show that they have been personally affected by the provision in question; it is not sufficient to show membership of the relevant group.  

It is irrelevant if the employer had or had not the intention to discriminate against a particular group; the test is objective. If the provision is challenged in the Employment Tribunal, it is up to the employer to justify that the provision is a proportionate means of achieving a legitimate aim. At paragraph 4.27, the Code recommends approaching this test in two stages:  

  • “Is the aim of the provision, criterion or practice legal and non-discriminatory, and one that represents a real, objective consideration? 
  • If the aim is legitimate, is the means of achieving it proportionate – that is, appropriate and necessary in all the circumstances?”  

The code states that ‘health, welfare and safety of individuals’ can be considered a legitimate aim. An example of an aim which is unlikely to be legitimate, is an employer whose sole aim in the provision is to reduce costs; there the courts would not be sympathetic to the employer’s argument that it is cheaper to discriminate.  

In the second part of the test, establishing if the provision is proportionate means, the Tribunal conducts a balancing exercise. The word ‘proportionate’ has been interpreted by the courts to mean ‘appropriate and necessary’, and the Tribunal would consider if the same legitimate aim could have been achieved in a less discriminatory way.  

The case of Home Office v Holmes [1984] IRLR 299, can be considered in point to your circumstances.  

  • Facts: Mrs Holmes was a full-time employee in the civil service, however, after returning from maternity-leave she found full time work difficult and asked for part time shifts. The employer refused her request on the basis that all their employees were working full time. She claimed that because women are more likely to have childcare responsibilities than men, she was being indirectly discriminated.  
  • Tribunal: After looking at the statistical evidence the Tribunal concluded that there was indirect discrimination. The Tribunal stated that “it is still a fact that the raising of children tends to place a greater burden on women than it does on men”.  
  • On appeal, the Employment Appeal Tribunal held that this decision was not to be treated as a precedent that women are entitled to work part time in all such circumstances. Entitlement to part time work is dependent on the circumstances of individual cases. The focus on groups rather than individuals and inequality of results underlies indirect discrimination, the concept stays short of insisting on a strict pattern of equality.  

More recent decisions of the Employment Tribunal can be found on the UK Government’s website: Employment tribunal decisions – GOV.UK (www.gov.uk)

Under the law (Equality Act 2010), employers are required to make reasonable adjustments for their employees, workers, some self-employed persons, job applicants and former employees who are disabled within the meaning of the Equality Act 2010.  

Someone is disabled within the meaning of the Equality Act 2010 if they have a long-term condition (over 12 months) which affects their day-to-day life in a substantial way (more than trivial).  

The nature of the reasonable adjustments varies from disability to disability and from person to person. However, the test is an objective test. The aim of the test is to put the disabled person on a level footing with non-disabled persons. An employee or worker must be able to specify what reasonable adjustments they need; and, they must also tell their employer that they are disabled.  

In putting in place the reasonable adjustments, the employer cannot require the employee to pay for those reasonable adjustments.  

The duty to make reasonable adjustments does not apply to non-disabled persons who are associated with a disabled individual. For example, a mother could not insist on a transfer to a different location to allow her disabled daughter to attend a specific school.  

Generally, failure to make reasonable adjustments is likely to result in discrimination arising from disability.   

Lastly, employees or workers have 3 months from the relevant act to raise proceedings in the Employment Tribunal if they are alleging failure to make reasonable adjustments against their employer.

The provisions of the Equality Act 2010 (“the Act”) apply to any association of people, incorporated or otherwise, which has at least 25 members, which has rules for admission to membership and which is not a trade organisation. 

Under the Equality Act 2010, an association is required to anticipate the needs of potential disabled members for reasonable adjustments. As far as it is reasonably practicable, an association is required to approximate the access enjoyed by disabled members to that enjoyed by the rest of its members. The purpose of the duty to make reasonable adjustments is to provide access to its activities as close as it is reasonably possible to get to the standard normally offered to the members at large.  

Where a physical feature puts disabled members, associates or guests at a substantial disadvantage compared with people who are not disabled, an association is required to avoid that disadvantage or adopt a reasonable alternative method of doing so.  

Relevant disabled persons in this context are those who are members, those seeking membership, associates and guests, and also those who might wish to become members and those who are likely to be guests.  

The duty to make reasonable adjustments is anticipatory, in the sense that it requires consideration of, and action in relation to, barriers that impede people with one of more kinds of disability prior to an individual disabled person seeking to participate in the activities of an association.  

The duty to make reasonable adjustments is owed to disabled people at large.  

An association must take such steps as it is reasonable to take to avoid putting disabled people at a substantial disadvantage caused by a physical feature. Avoiding a substantial disadvantage caused by a physical feature includes removing the physical feature in question; altering it; or providing a reasonable means of avoiding it.  

The Act requires that any alternative method of making services available must be a reasonable one. Relevant considerations in this respect may include whether the provision of the service in this way significantly offends the dignity of disabled people and the extent to which it causes disabled people inconvenience. 

For further information on this please visit  

the Equality and Human Rights Commission’s website at https://www.equalityhumanrights.com/en/advice-and-guidance/core-guidance-clubs-societies-and-associations  

or  

the Services, Public functions and Associations: Statutory Code of Practice at https://www.equalityhumanrights.com/en/publication-download/services-public-functions-and-associations-statutory-code-practice

A disabled person is discriminated where they are treated unfavourably, the treatment is because of something arising in consequence of the disabled person’s disability, it cannot be shown that the treatment is a proportionate means of achieving a legitimate aim, and it cannot be shown that the discriminator did not know that the person has the disability.

FCE’s Chief Executive Nina Munday supported a person to win a case of discrimination arising from disability in 2020.  You can read the full judgement here.

discriminator can be an employer, a service provider or an association.  

Unfavourable treatment means the disabled person has been put at a disadvantage, which is often obvious; for example, a disabled person is refused service or a job.  

Discrimination arising from disability is wider than direct discrimination and indirect discrimination, there is no need for a comparator, there just needs to be a connection between the unfavourable treatment and the disability.  

For further information on this please check  

the Equality and Human Rights Commission’s website at https://www.equalityhumanrights.com/en/advice-and-guidance/disability-discrimination  

or  

the Services, Public functions and Associations: Statutory Code of Practice at https://www.equalityhumanrights.com/en/publication-download/services-public-functions-and-associations-statutory-code-practice  

or 

the Employment: Statutory Code of Practice at https://www.equalityhumanrights.com/sites/default/files/employercode.pdf  

There are a few options available. You can engage in mediation with your neighbour, you can report any incidents to Fife Council or to the Police.   

The advantage of Fife Community Safety Support Service is that this service provides practical and emotional support. Mediation is not mandatory – neither you nor your neighbour can be forced to engage in mediation. However, the Mediation service can provide you with emotional support, and also advise you about alternatives to find a resolution. According to their website, once you’re referred, the following steps should take place:  

(1) You will be matched with the appropriate service. 

(2) You will receive a letter or phone call to set up your first appointment. Your meeting can take place in your home at the Sacro or local council service office or a place that is suited for your personal circumstances.  

(3) You and your support worker will work to discuss your needs and agree a plan of action.  

(4) Once your needs are identified, you and your support worker will support you in accessing the appropriate service or help.  

(5) You will have ongoing contact with your support worker.  

(6) Your support worker will continue to review your case and agree the next steps. 

If that mediation fails, or if you don’t think it is appropriate, you can report the issue to the Council using this form: Report antisocial behaviour | Fife Council. Please let us know if you need help filling in the form; we can arrange an appointment and someone can assist you over the phone.

If you have been targeted because of your disability, race, religion, sexual orientation or transgender identity, or you are aware of someone else being targeted, you are encouraged to report it to the police. By reporting a hate crime, you can help the police deal with it and also prevent the same thing happening to someone else. You can make an anonymous report if you prefer. This does mean that the police may not be able to fully investigate the crime without your details, however it is your choice. You can report hate crime to the Police: 

  • By phoning 999 (emergency) 101 (non-emergency) 
  • In person at any police station, 

 There is another option if you would prefer reporting the matter to someone who you are more comfortable with. You can make an appointment with Fife Centre for Equalities and tell us about the crime. We work in partnership with the police to ensure you can report a hate crime in a welcoming, supportive and confidential setting. Our staff can assist you to submit a report to the police and can make the report on your behalf. You can report hate crime to us: 

 Here is a list of all Third Party Reporting Centres: https://www.scotland.police.uk/spa-media/ewenovsm/third-party-reporting-centres.pdf  

Health is a devolved matter in Scotland. The wearing of face coverings is governed by the Health Protection (Coronavirus) (Restrictions) (Scotland) Regulations 2020, SSI 2020/103 (“the Regulations”). It is the law that people must wear a face covering in indoor public spaces, unless they have an exemption.  

According to the law in Scotland, a person does not have to wear a face covering (either a face mask or a visor) if wearing a face covering is difficult for them, or if they feel pain, distress or severe anxiety. Any of these symptoms can result because of any physical or mental illness or impairment or disability (within the meaning of section 6 of the Equality Act 2010) (for example, autism, dementia or a learning disability). If someone experiences any of the above symptoms, they are an exempt person. There is no mention in the law of the need to show proof of this exemption.   

To avoid any doubt, the Scottish Government’s Guidance on face coverings states explicitly, that those who are exempt do not have to prove their exemption and should not be made to wear a face covering or denied access to indoor public spaces.  

However, the Scottish Government has introduced an exemption card scheme for people who would feel more confident and safer in public having one. The exemption card is free and can be requested on 0800 121 6240 or through the exemption card website.

Scottish Government, ‘Face Covering Exemptions’, http://exempt.scot/

No, the anti-Covid-19 vaccine is not mandatory for everyone, there is no requirement under the law that all residents in Scotland should have the vaccine. There has been some debate about introducing such a requirement, however, the Scottish Government has no plans of doing so at the moment.  Employers and service providers are expected to provide alternatives for those who cannot take up the vaccine e.g. instead of presenting a vaccine certificate, the person can present a negative testing result.  

The medical advice is that, unless you are allergic to any of the ingredients in the vaccine (you would know this if you have had an allergic reaction to a vaccine in the past) or have a medical condition that prevent you from taking the vaccine, you are strongly advised to get the complete course of vaccination unless Covid-19.

Please read the EHRC’s response to Covid Status Certification Review which advised the Government that blanket application of such an approach would potentially be discriminatory, and that there are ethical and privacy concerns relating to mandating vaccinations or the use of Covid status certification.

To view the EHRC Report, click here: https://centreforequalities.org.uk/wp-content/uploads/2021/12/our_response_to_the_covid_status_certification_review.pdf

The Scottish Government have released guidance for the public on the Vaccine Passport, who is exempt and what to do when going to venues / events. Read more at: https://www.gov.scot/publications/coronavirus-covid-19-certification-scheme-information-for-customers/pages/prove-exemption/

Please also consult NHS Inform for more information about Covid Status:  https://www.nhsinform.scot/nhs-scotland-covid-status/covid-status-common-questions/covid-status-guidance-common-questions.