Dental Management
Posted: 18 April 2012

CQC: Equality, diversity and human rights

Author: Seema Sharma

In her continuing series on CQC, Seema Sharma covers guidelines relating to equality, diversity and human rights relating to both employees and patients

Equality, diversity and the human rights of patients and employees are protected by CQC guidelines. The Care Quality Commission expects dental practices to:

1. Demonstrate how they ensure that the promotion of equality, diversity and human rights are actively promoted in their services (service design).

2. Demonstrate how the promotion of equality, diversity and human rights influences how the practice delivers services across the range of regulated activities being registered (service delivery). For most dental practices, the regulated activities are: Activity 5 - treatment of disease, disorder or injury; Activity 7 - surgical procedures; and Activity 8 - diagnostic and screening procedures.

3. Show what the practice does to increase the influence of equality, diversity and human rights issues on the planning and delivery of services (patients shaping services).

Documents used as guidelines here are: The Equality Act 2010; The Human Rights Act 2000; and The Disability Discrimination Act 2005. On 1 October 2010, the Equality Act replaced most of the Disability Discrimination Act (DDA); however, the Disability Equality Duty in the DDA continues to apply.


Protected characteristics

The following are protected characteristics:

1. Race - for the purposes of the Act ‘race’ includes colour, nationality and ethnic or national origins.

2. Age - the Act protects people of all ages. However, different treatment because of age is not unlawful direct or indirect discrimination if you can justify it, ie if you can demonstrate that it is a proportionate means of meeting a legitimate aim. Age is the only protected characteristic that allows employers to justify direct discrimination. The Act continues to allow employers to have a default retirement age of 65 until April 2011.

3. Sex - sex discrimination is any form of treatment which is unfavourable and which is related to gender. Both men and women are protected under the Act. The right to equal pay provides equality in the terms of an employee’s contract where s/he is employed to perform work which is rated equivalent to that performed by a member of the opposite sex or work of equal value to that of a member of the opposite sex.

4. Sexual orientation - the Act protects bisexual, gay, heterosexual and lesbian people.

5. Gender reassignment (new definition) - the Act provides protection for transsexual people. A transsexual person is someone who proposes to, starts, or has completed a process to change his or her gender. The Act no longer requires a person to be under medical supervision to be protected - so a woman who decides to live as a man, but does not undergo any medical procedures, would be covered. It is discrimination to treat transsexual people less favourably for being absent from work because they propose to undergo, are undergoing or have undergone gender reassignment than they would be treated if they were absent because they were ill or injured.

6. Disability (new definition and changes) - the Act has made it easier for a person to show that they are disabled and protected from disability discrimination. Under the Act, a person is disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities, which would include things like using a telephone, reading a book or using public transport. As before, the Act puts a duty on employers to make reasonable adjustments for your staff to help them overcome disadvantage resulting from an impairment (eg by providing assistive technologies to help visually impaired staff use computers effectively). The Act also includes a new provision which makes it unlawful, except in two circumstances, for employers to ask about a candidate’s health before offering them work. You can only ask to help you, a) decide whether you need to make any reasonable adjustments for the person to the selection process, or b) decide whether an applicant can carry out a function that is essential (‘intrinsic’) to the job.

 



7. Religion or belief - in the Equality Act, religion includes any religion. It also includes a lack of religion, in other words employees or jobseekers are protected if they do not follow a certain religion or have no religion at all. Additionally, a religion must have a clear structure and belief system. Belief means any religious or philosophical belief or a lack of such belief. To be protected, a belief must satisfy various criteria, including that it is a weighty and substantial aspect of human life and behaviour. Denominations or sects within a religion can be considered a protected religion or religious belief. Discrimination because of religion or belief can occur even where both the discriminator and recipient are of the same religion or belief.

8. Marriage and civil partnership - the Act protects employees who are married or in a civil partnership against discrimination. Single people are not protected.

9. Pregnancy and maternity - a woman is protected against discrimination on the grounds of pregnancy and maternity during the period of her pregnancy and any statutory maternity leave to which she is entitled. During this period, pregnancy and maternity discrimination cannot be treated as sex discrimination. An employee’s period of absence due to pregnancy-related illness cannot be taken into account when making a decision about her employment.
 

THE DISABILITY EQUALITY DUTY
The disability equality duty was introduced into legislation in the Disability Discrimination Act (amended 2005). It means that public bodies must have ‘due regard’ to the need to:
Promote equality of opportunity between disabled persons and other persons
Eliminate discrimination that is unlawful under the Act
Eliminate harassment of disabled persons that is related to their disabilities
Promote positive attitudes towards disabled persons
Encourage participation by disabled persons in public life
Take steps to take account of disabled persons’ disabilities, even where that involves treating disabled persons more favourably than other persons (eg the provision of an accessible parking bay near a building, where parking is not available for other visitors or employees)


Prejudice

It is not necessarily wrong to group people, and ethnicity profiles are increasingly used to influence planning of services to promote equality and diversity. However pre-judging people based on which group they belong to is
stereotyping.

Stereotyping can lead to prejudice, and this word normally suggests that the opinions formed are negative. Prejudice can be due to:

• Ignorance, eg lack of understanding of why other people do or think certain things
• Learnt behaviour, eg from childhood
• Fear, eg of feeling a particular group presents a threat to jobs or opportunities
• An unfortunate experience, eg a theft

Discrimination is to act on the basis of prejudice and refers to any form of unfavourable treatment. The Equality Act became law on 1 October 2010 and amalgamates all previous discrimination legislation. The ‘protected characteristics’ (PCs) outlined above. However, there are various types of discrimination and not all of the PCs are included within the scope of each.

Direct discrimination - defined as: ‘someone is treated less favourably than another person because of a protected characteristic.’ This covers all the PCs above.

Associative discrimination - defined as: ‘direct discrimination against someone because they associate with another person who possesses a PC’; marriage and civil partnership, as well as pregnancy and maternity are still not included within its scope.

Perceptive discrimination - defined as: ‘direct discrimination against someone because others think they possess a particular PC.’ Again, marriage and civil partnership, as well as pregnancy and maternity are still not included within its scope.

The Equality Act does not specifically mention or define associative or perceptive discrimination. Instead, it defines direct discrimination in a way that is wide enough to cover both of these types of claims: ‘A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.’

The key point is that the person bringing the claim does not need to have the protected characteristic. It is sufficient that the treatment is because of a protected characteristic. The protected characteristic can belong to another person they associate with or it can be a perceived characteristic which the employee does not actually have. An individual will also be able to bring a claim for harassment in those situations.

Indirect discrimination - this occurs when there is a rule or policy which applies to everyone, but actually disadvantages someone with a particular PC. Pregnancy and maternity are still not included within its scope.

As with previous equality legislation, the Equality Act allows the practice to take positive action if it is considered that employees or job applicants who share a particular protected characteristic suffer a disadvantage connected to that characteristic, or if their participation in an activity is disproportionately low.

 



Harassment

Harassment is, ‘unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.’ In other words, harassment is a form of discrimination where a person is made to feel uncomfortable.

(Direct) Harassment: employees can now complain of behaviour they find offensive even if that behaviour is not directed at them but to another. It may involve action, behaviour, comments or physical contact, which is found objectionable, offensive or intimidating by the recipient. The recipient may feel threatened, humiliated or patronised by the perpetrator. It is not always a conscious or intentional act but it is the recipient’s feelings in response which are important.

Harassment by a third party: employers may be held liable for the harassment of their staff by someone that they do not employ (the third party).

Sexual harassment: the practice (a form of sex discrimination) defines harassment as unwanted conduct of a sexual nature or other conduct based on sex, which affects the dignity of those who work in the practice. This can include unwelcome physical, verbal or nonverbal conduct. Both men and women may be subject to harassment.

Racial harassment: is a form of race discrimination and might involve racist jokes and banter or insults, taunts and jibes.

Harassment in connection with marriage, civil partnership, pregnancy or maternity remain outside of the scope of the Equality Act.

 



Victimisation

This is defined as ‘the individual is treated badly because they have made or have supported a complaint or grievance made under the Equality Act’ or because they are suspected of doing so. The new legislation covers all of the protected characteristics. These provisions do not apply if the original discrimination allegation was false or was not made in good faith.


Delivering equality and diversity

There are three key steps to delivering equality and diversity:
1. Review existing equality policy and action plan
2. Monitor how the policy is working in practice – a critical stage in delivering equality in the workplace
3. Take action, where it is needed, to address inequality or promote diversity.


The Human Rights Act 2000

Human rights are the basic rights and freedoms that belong to every person in the world. These rights and freedoms are based on core principles like dignity, equality, respect, fairness and autonomy.

They are relevant to every individual’s day-to-day life and protect their freedom to control their own life, effectively take part in decisions (made by public authorities and service providers) which impact upon their rights, to ensure they get fair and equal services.

The European Convention on Human Rights was the first human rights legislation, drafted after World War II to ensure the cruelties carried out during the war were never repeated. The Convention is made up of a series of short Articles; each Article is a short statement defining a right or freedom, together with any exceptions. These Rights affect matters of life and death, such as freedom from torture as well as rights which exist in everyday life.

The Human Rights Act came into effect in the UK in October 2000. The Act enabled people in the UK to take human rights cases to court in the UK, whereas before they had to be taken to Strasbourg. More detail can be found at www.equalityhumanrights.com

 

FACTFILE
Legislation prior to the Equality Act 2010 includes:
The Disability Discrimination Act 1995
The Sex Discrimination Act 1975 (Amendement) Regulations 2003
The Race Relations Act 1976 and the Race Relations Code of Practice
Race Relations Act (Amendment) Regulations 2003
The Employment Equality (Religion and Belief) Regulations 2003
The Employment Equality (Sexual Orientation) Regulations 2003
The Employment Equality (Age) Regulations 2006
Equal Pay Act 1970 (Amendment) Regulations 2003

 

To read other articles in the CQC series, please click below:
CQC in practice management
Will you walk the walk?
Organisation is the key to compliance
The value of consent
Managing medicines
Information security procedures
Sharing responsibility
Suitability of staff
Supporting workers (Part I)
Supporting workers (Part II)
Management and leadership
Seema Sharma BDS (Lond) LDS RCS (Eng)
Seema Sharma BDS (Lond) LDS RCS (Eng)

www.seemasharma.co.uk

Seema Sharma is a PPD editorial board member, CEO of the Smile Impressions group of practices and founder of the first digital online solution for CQC compliance, effectively building a 'virtual practice manager' online. Her company Dentabyte delivers diploma courses in practice management, CPD for CQC workshops and a wide range of professional services to help practices future proof themselves by combining commercial success with compliance. She established The Sharma Foundation, which helps underprivileged communities in India and East London, after visiting Mumbai with Channel 4 to make Slumdog Secret Millionaire.

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