How the Equality Act affects your golf club

Jenny Yu
By Jenny Yu October 9, 2017 10:48

This guidance from the National Golf Clubs’ Advisory Association looks at The Equality Act 2010, which has led to long-lasting changes in the golf industry. Here, that legislation, and how it still affects golf clubs, is outlined

The Equality Act 2010 (‘EqA’) affords protection against prohibited conduct to all workers contracted personally to undertake work. This includes:

  • employees working under a contract of employment;
  • workers and agency workers (those contracted to personally provide work or services;
  • the self-employed people who have agreed to personally carry out work.

There are nine protected characteristics set out in the EqA are age; disability; gender reassignment; marital status; pregnancy, maternity or paternity; race; religion or belief; sex; and sexual orientation.

If one of your members or employees treats someone differently because of a protected characteristic this could amount to unlawful discrimination. Irrespective as to the whether or not the discrimination is intentional, if someone is treated less favourably and this results in them being worse off because of the treatment this could lead to a claim of discrimination.

There are a number of types of discrimination – known as prohibited conduct – under the EqA. These are: direct discrimination; discrimination by association; discrimination by perception; indirect discrimination; harassment; and victimisation.

We’ll review these in more detail:

Direct discrimination

If a person is treated less favourably because of a protected characteristic this could amount to a claim for direct discrimination. Examples may include the imposition of unreasonable physical aptitude tests at the recruitment stage, or the failure to adequately promote female staff.

Discrimination by association

Similarly, if someone is treated less favourably because they are associated with a person who possesses a protected characteristic, for example a promotion is withdrawn because the applicant has caring responsibilities, this would amount to discrimination by association.

Discrimination by perception

Further, if a promotion opportunity is not afforded because the applicant is perceived to be too young and the rejection is without any real foundation, that is the management failed to take into account any requisite skills or qualifications, this would be discrimination by perception.

Indirect discrimination

Indirect discrimination is probably one of the most misunderstood types of discrimination. This applies where a provision, criterion or practice is applied to a group of job applicants / employees and has the effect of putting those particular employees sharing a protected characteristic at a disadvantage. Whilst the EqA does not define provision criterion or practice this generally means the policies, procedures, rules and requirements adopted by the employer, whether written down or not, for example the recruitment and selection criteria, the equality of contractual benefits, the procedural fairness and implementation of a redundancy scoring matrix and any other workplace practices which could be reviewed as discriminatory if not applied consistently and fairly.

For example, an employee / applicant may be able to successfully claim indirect discrimination if they can demonstrate they have been disadvantaged and thereafter demonstrate how this disadvantage would affect other employees or job applicants with the same protected characteristic. It is essential therefore to review your policies and procedures to ensure that you do not indirectly discriminate against a particular group of people who share a protected characteristic.

Harassment

Harassment is unwanted conduct relating to a protected characteristic or that of a sexual nature.

Where the actions of a person or group of persons have the purpose or effect of violating an employee’s dignity, or creating an environment for the victim which is intimidating, hostile, degrading, humiliating or offensive this would be classed as harassment. This can include bullying; threats; jokes; banter; gossip; inappropriate questions; insults; and unwanted physical contact; and can be verbal or physical; and direct or indirect.

Harassment can also apply to those who are perceived to hold a protected characteristic or are associated with someone who holds the protected characteristic.

Victimisation

Victimisation can take many forms. The following list provides just a few examples of the type of behaviour which could amount to victimisation:

  • Penalising someone for making a complaint of discrimination, harassment or bullying. For example, excluding a person from work-related activities or conversations in which they have a right or legitimate expectation to participate because they have made a complaint of discrimination, harassment or bullying; or
  • Creating a difficult or oppressive environment for an individual because they have made a complaint – whether informal or formal – of discrimination, harassment or bullying. This might involve, for example, talking negatively about the person behind their back or making disparaging, ridiculing or mocking comments or remarks.

Liability

Once an applicant / employee can demonstrate they hold a protected characteristic they must set out a prima facie case of discrimination, that is ably demonstrate another employee / worker / third party committed ‘the unlawful act of discrimination’.

If they can set out a prima facie case, the burden of proof will reverse to the accused to prove they did not commit the alleged discriminatory act.

If it cannot be proven that the actions were not intended to be discriminatory the person or company will be held personally liable for the act. Vicarious liability will only transfer to the employer if it is unable to demonstrate (a) it has suitable policies and procedures in place and (b) it has failed to adequately train its workers.

It is therefore essential that training is provided to all employees to remove liability from the employer.

Positive action in recruitment

An employer can take positive action to help employees / applicants at a disadvantage because of a protected characteristic, such as they are underrepresented in the organisation or have specific needs connected to a particular characteristic. However, you must be able to evidence positive action will not discriminate. Similarly, you are no longer obliged to consider taking positive action.

Reasonable adjustments

An employer must consider making reasonable adjustments when they become aware of a disability or when a job applicant asks for reasonable adjustments to be made or when an employee’s sickness record is linked to a disability.

Whether the adjustments are reasonable will depend upon how practical they are for the employer to make, the ability for the employer to pay for such adjustments and whether the adjustments will likely overcome the disadvantage in the workplace.

Jackie Howe, the chief executive, is based in the office and is on-hand to offer advice and support. She is backed up by a team of specialist Solicitors to assist in legislative guidance for clubs.

The National Golf Clubs’ Advisory Association

The Threshing Barn, Homme Castle Barns,

Shelsley Walsh, Worcestershire, WR6 6RR

Tel: 01886 812943

email info@ngcaa.co.uk

www.ngcaa.co.uk

 

Jenny Yu
By Jenny Yu October 9, 2017 10:48
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2 Comments

  1. Lost Ball October 9, 11:15

    Today my golf club has put a complete ban on buggy’s, This has been done by our Hon Administrator, when I asked him why and who had authorised it. he answered himself and head green keeper, asked him if a report had been done, no we don’t do them. then I approached the head green keeper and asked why a ban when 2 tractors has been round the course and onto 18 greens, he informed me he had not authorised it, he had been approached by the Hon Administrator who said he had put a sign out and banned ride on buggies. Without a report being done are they breaking the 2010 equality act on disability.

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