This pack contains help and information about your rights under the following Laws:
The Equality Act
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The Care Act
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The Human Rights Act
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Mental Capacity Act
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Mental Health Act
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If you would like us to provide information on other legal rights, please contact us at:
[email protected]
or
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or call us: 01902 810016
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Last Updated: August 2016
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The Equality Act
The Equality Act provides protection against discrimination in employment, provision of goods and services,
transport, as a member of clubs and societies, and in relation to public bodies (like NHS or Council).
The Equality Act covers 9 strands; if you think you have been discriminated against because of one or more
of these, you may have a case under the law. The 9 strands are:
Disability
Disability discrimination includes people who have a disability (in law – a long term impairment affecting a
person’s ability to carry out day to day activities), someone who is percieved to have a disability, or someone
connected to (eg parent) someone who has a disability.
The Act covers discrimination in delivery of goods and services, policies and practices, employment, failing to
make reasonable adjustments for disabled people to access the job/good/service, victimisation, and
harassment.
Find out more here:
https://www.equalityhumanrights.com/en/advice-and-guidance/disability-discrimination
Sex
This includes discriminatory treatment against someone because they are a particular sex, or they are
perceived to be a particular sex. It includes victimisation and harassment.
It does not include jobs where you need to be a particular sex because it is an occupational requirement –
for example a female bra fitter may be regarded as necessary for reasons of decency or privacy.
Sexual Orientation
The Act states that you cannot be discriminated against because of your sexual orientation – whatever it is –
or because you are perceived to be of a certain sexual orientation, or are connected to someone who is a
certain sexual orientation. So if a hotelier refuses to rent a room to 2 men – that’s direct discrimination, if an
employer refuses to consider someone for a promotion when she mentions her girlfriend that could be
direct discrimination. If a policy has the particular (but not necessarily intended) effect of disadvantaging
people form a particular orientation that may be seen as indirect discrimination. Unless s/he can prove an
objective justification. See more information here:
https://www.equalityhumanrights.com/en/advice-and-guidance/sexual-orientation-discrimination
It is also unlawful to harass someone because of their sexual orientation, or if a person is victimised because
s/he brings a complaint of discrimination under the Equality Act.
Marriage/Civil Partnership Discrimination
Being treated differently at work because you are married or in a civil partnership is Direct Discrimination. It
may also be the case that your employer has a policy or way of working in place not intended to
discriminate, but has the effect of discriminating against someone who is married or in a civil partnership –
this is Indirect Discrimination. Also anyone victimised for bringing a complaint of this type of discrimination
at work is protected under the law.
You can find out more here:
https://www.equalityhumanrights.com/en/advice-and-guidance/marriage-and-civil-partnershipdiscrimination
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Pregnancy or Maternity
Maternity in terms of the Equality Act, is the period after birth relating to maternity leave. It is unlawful for
an employer to treat an employee unfavourably during the protected period from the start of pregnancy
until the end of maternity leave. (women are entitled to 26 weeks maternity leave and a further 26 weeks if
proper notice was given)
In the non-work context, protection against maternity discrimination is for 26 weeks after giving birth, and
this includes treating a woman unfavourably because she is breastfeeding eg asking her to move to another
table or get out of your shop
For more detailed information, see the Statutory code of practice:
https://www.equalityhumanrights.com/en/publication-download/employment-statutory-code-practice
Race
This covers race, colour, nationality, ethnic group and people marrying into an ethnic group. It includes
employment and provision of goods and services, It is when you are treated differently because of one of
these things. It includes Direct and Indirect discrimination, harassment and victimisation. In terms pf
employment hiring someone from a particular racial or ethnic background may be lawful if it can be proved
that it is an occupational qualification. Eg an Iranian chef to cook traditional Iranian food in a Persian
(Iranian) restaurant.
More here:
https://www.equalityhumanrights.com/en/advice-and-guidance/race-discrimination
Gender Reassignment
It is unlawful to discriminate against people whose gender identity is different from the one they had at
birth. Whether directly or indirectly. It is about how people live, not what surgery they have had –
reassignment surgery or hormonal treatment is not necessary to have protection under the law. People who
are wrongly thought to be transgendered because – for example – they crossdress (dress as a different sex)
are also protected, as are people who have a connection with the transgendered person. Discrimination can
include removing a person from frontline services because they have changed genders, or harassing or
allowing staff to harass a transgendered person
Age
This covers what age you are or are not, or what age people think you may be – it does not apply to students
at school. It includes your employer or service provider preventing you from doing something because of
your age (direct discrimination), or running things in such a way that it has the effect of preventing you
(indirect discrimination). It is discrimination unless the person can prove an objective justification for his/her
decision. Harassment and Victimisation under age grounds are also unlawful.
https://www.equalityhumanrights.com/en/advice-and-guidance/age-discrimination
Religion or Belief
This covers being discriminated against for holding or not holding a particular belief or religion, or because
your are thought to hold a particular belief or religion, or associated with someone who does. The Act also
protects people of other religions and those with no religion if they are discriminated against because of
their beliefs. You can legally treat someone from a religion or belief more favourably if it is a genuine
occupational qualification. And service providers may treat some more favourably, if it is related to the
nature of the business – eg a faith school prioritising omissions to children from that faith.
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Public Sector Equality Duty
The Equality Act also requires public bodies (like councils, and health service hospitals and other
publically funded organisations) to consider how their decisions and policies affect people protected by
one of the 9 strands above. The public body must have evidence of how it has done this.
Bringing a Case under the Equality Act
If you think you have been discriminated against on grounds according to the protections of the Equality Act,
your first step should be to talk to the employer/service provider/public body about the difficulty – make them
aware of the problem and ask them what they will do about it or tell them what you want done about it. If you
do not get any progress from this action, or if you do not want to do this, you can either take your case to
Court, or go through a conciliation process.
If you want to take your case to Court regarding discrimination in
goods and services
you must usually
start proceedings within 6 months of the date the discrimination took place.
You need to get an application form and claim pack from the County Court. You will have to pay £140 to issue
the claim unless you are on benefits/low income.
You may want someone to help you with the form, as it is complicated to fill in.
Most claims (for amounts under £5,000) will be dealt with in the Small Claims Court. You can either represent
yourself here, or have a solicitor or someone else represent you, but the process is fairly informal and
straightforward.
If you want to bring a case for discrimination
in employment
claims must be lodged within three
months (minus one day) of the act or acts of discrimination about which you are complaining. Contact the
Equality Advisory Service for help: https://www.equalityadvisoryservice.com/app/ask
Freephone Telephone 0808 800 0082
Text phone 0808 800 0084
If you don’t want to go through the difficulty/expense of bringing a Court case, you may want to use
Alternative Dispute Resolution Service (ADR). ADR is free, fairly quick (about 8 weeks), and offers a
negotiated settlement using an independent conciliator.
For employment discrimination cases you should use ACAS http://www.acas.org.uk/
For goods
and services discrimination contact the Equality Advisory Service for help.
The Dispute resolution service will try to sort out the problem by talking to you and the service provider.
The solution may involve an agreement to improve the service, it may also involve a settlement in money, but
not always. The process is voluntary, and you or the service provider can end it at any time. You may decide
that you want to stop the process and take legal action instead – using an ADR does not stop prevent you
from doing this.
For more information go to https://www.equalityadvisoryservice.com/
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The Care Act
The Care Act 2014 came into force in April 2015, and covers care and support for adults and support
for carers.
What has changed under the Care Act?
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Personal budgets are put on a legal footing for the first time for people with care and support
needs and for carers;
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There is a duty on councils to consider the physical, mental and emotional wellbeing of
individuals in need of care;
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A new duty to provide preventative services to maintain people's health;
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New powers for the chief inspector of social care (Government post) to hold poorperforming providers to account;
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There is a lifetime cap on personal 'care costs' (not including accommodation costs) of
£72,000. – This means people who can afford it (according to Government formula) will only
have to contribute up to £72,000 for their lifetime towards their care needs.
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New rights for carers including the right to an assessment of their needs and the right to get
support if they meet eligibility criteria;
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Councils will have to carry out their care and support functions with the aim of integrating
services with the NHS and other health related services such as housing;
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Public services must advice and information, continuity of care and inter professional
working.
Wellbeing
Local authorities must promote wellbeing when carrying out any of their care and support functions
for a person.
This wellbeing principle applies in all cases where a local authority is carrying out a care and support
function, or making a decision in relation to a person. It applies equally to adults with care and
support needs and to their carers.
“Wellbeing” is described as relating to the following areas:
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personal dignity (including treatment of the individual with respect);
physical and mental health and emotional wellbeing;
protection from abuse and neglect;
control by the individual over day-to-day life (including care and support and the way it is
provided);
participation in work, education, training or recreation;
social and economic wellbeing;
domestic, family and personal relationships;
suitability of living accommodation;
the individual’s contribution to society.
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The local authority must consider what the person wants to achieve, and how any action taken by the
local authority affects the wellbeing of the person. This should happen throughout the process from giving
information, to assessing needs, and providing support.
Meeting needs
The new Act strengthens focus on meeting a person’s needs rather than saying here are our services, how
you can fit into them?
1.The individual knows best
The Care Act means the Local Authority has to start with the view that the individual is best placed to
judge his/her wellbeing. It is a person centred approach.
Like the Mental Capacity Act, the local authority should assume that the person knows best about their
own goals and wellbeing. Councils should not guess what is most important to the person;
2. Considering the persons views
The wishes, feelings and beliefs of the individual must be taken into account. Local authorities should not
ignore the importance of a person’s own views about their life and care. This includes religious beliefs.
When a person does not have capacity to make decisions for his/herself, views they expressed in the past
must be taken into account.
3. Prevention
Preventing or delaying needs for care and support is central to the Act. Interventions by the Authority at
the right time can stop needs from growing, and help people maintain their independence longer.
4. Involving the person
The person should be involved as much as possible in decisions about their lives by providing information
and support accessible to them, that allows them to be involved.
5. Balance between cared-for and carer
Both the person’s wellbeing, and that of any or family or friends that care for him/her needs to be taken
into account.
People should be considered in relation to their support networks, instead of looking at them as an
isolated individual. Local authorities should take into account the impact of an individual’s need on those
who support them, and take steps to help others access information or support;
6. Protecting from abuse and neglect
The local authority should consider how to ensure that the person is protected from abuse or neglect
7. Choices & Rights
The Local Authority must ensure that restrictions to a person’s rights or freedom to act is kept to a
minimum Where the local authority has to take actions which restrict rights or freedoms, they should
make sure they do it in the least limiting way possible.
All of these things must be considered in relation to every individual, when a local authority carries out a
care related function, to help the person live as independently as possible.
You can get legal guidance on the Care Act here:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/315993/Care-ActGuidance.pdf
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The Human Rights Act
The Human Rights Act brought the rights enshrined in the European Convention on Human Rights into British
Law.
It gives all British Citizens:
The Right to Life
Freedom from Inhuman treatment
Freedom from Slavery and forced labour
Right to Liberty and security
Right to a fair trial
Right not to be held guilty of a criminal offence by a law created after the offence
Right to privacy, family life, home and correspondence
Freedom of expression, conscience, thought, and religion
Freedom of Assembly and association
Right to marry
Right to education
Right to free elections.
While many of these are fairly basic rights, they may have a greater impact on some disabled people’s lives, for
example it they challenge the right of a doctor to withhold treatment, or the abuse or infringement of liberties
experienced by some people in care homes, it also protects the rights of disabled people to form sexual
relationships or to marry.
The British Institute of Human Rights produces a guide for disabled people:
http://www.bihr.org.uk/sites/default/files/bihr_disabled_guide.pdf
The Mental Capacity Act
The Mental Capacity Act has measures to protect people who cannot make decisions for themselves due to
mental health condition, learning disability, or other reason like brain injury or dementia.
The Act states that everyone should be treated as if they are able to make their own decisions unless it is show
that they are not, and this is established at the time a decision needs to be made.
The Act allows the person, while they are still able to make decisions, to appoint someone to make decisions on
their behalf once they lose the ability to do so themselves. This includes decisions on the person’s health and
welfare, as well as finances.
The Act provides a checklist for decision makers, to make sure they are acting in the person’s best interests. It
also introduces a code of practice for people healthcare workers and support workers and advocates.
The Act set up the Independent Mental Capacity Advocate service. An Independent Mental Capacity Advocate
is appointed to support a person who lacks capacity but has no one to speak for them, such as family or friends.
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The Office of the Public Guardian, will safeguard the rights of the person who lacks capacity – If there are
suspicions that an attorney or deputy might not be acting in the best interests of the person they represent, the
Office of the Public Guardian will work with other organisations to ensure that any allegations of abuse are
fully investigated and acted on.
When a person’s support or healthcare worker disagree with other parties like the social worker, the Court of
Protection will decide what is in the person’s best interests.
You can find out more about the Act on the Office of the Public Guardian website:
http://www.justice.gov.uk/about/opg
Mental Health Act
The Mental Health Act covers the assessment, treatment and rights of people with a mental health condition.
Most people who receive treatment in hospitals or psychiatric units for mental health conditions are there on a
voluntary basis and have the same rights as people receiving treatment for physical illnesses. A small number
of patients may be compulsorily detained under a section of the Mental Health Act:
section 2 : admission to hospital for up to 28 days for assessment
section 3 : admission to hospital for up to six months for treatment
section 4 : admission on an emergency basis for up to 72 hours
The Act explains who is involved in the decision about compulsory admission or detention, and the person’s
right of appeal.
The Act gives certain rights to the nearest relative which can be used to protect the patient’s interests.
You can find out more about the Mental Health Act on the MIND website
http://www.mind.org.uk/information-support/legal-rights/mental-health-act-1983/#.V8geJygrLDc>
Last updated: September, 2016
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