Equality, Diversity and Human Rights

1. Introduction

This chapter outlines the main points of the Equality Act 2010, and also how it relates to people with care and support needs, including safeguarding adults. The Act ensures there is consistency in what a local authority does to provide services in a fair environment and comply with the law. The Act covers all the people who use local authority services, their family and friends and other members of the public, staff, volunteers and partner agency staff.

2. Equality Act 2010

The Equality Act contains nine ‘protected characteristics’: all of which must be considered when implementing policies and procedures in adult social care (see also Section 4.2, Protected characteristics). The Act covers both direct and indirect discrimination against people with the following characteristics:

• age;
• disability;
• gender reassignment;
• race;
• religion or belief;
• sex;
• sexual orientation;
• marriage and civil partnership;
• pregnancy and maternity.

The local authority’s commitment to equality and diversity means that every person they provide support to will have their individual care and support needs comprehensively addressed. They will be treated fairly and without discrimination. Staff must also demonstrate a commitment to protecting human rights. Failure to make reasonable adjustments for adults who have a protected characteristic (for example, a learning disability) may be a breach of the Equality Act.

3. Demonstrating Commitment to Equality, Diversity and Human Rights

A commitment to equality and diversity is shown by:

• respecting the ethnic, cultural and religious practices of adults who use services and making practical provision for them to be observed as appropriate;
• recognising that diversity enhances the quality of experience of everyone who lives and works in any service or setting;
• protecting people’s human rights – treating them and their family and friends, fairly and with respect and dignity;
• recognising each adult who use services as an individual;
• supporting adults to express their individuality and to follow their preferred lifestyle, also helping them to celebrate events, anniversaries or festivals which are important to them;
• positive leadership and promoting management and human resources policies and practices that actively demonstrate a commitment to the principles of equality and diversity;
• developing an ethos throughout the service that reflects these values and principles;
• expecting all staff to work to equality and diversity principles and policies and to behave at all times in non-discriminatory ways;
• providing training, supervision and support to enable staff to do this;
• having a code of conduct that makes any form of discriminatory behaviour unacceptable. This applies to both staff, adults who use services and their family and friends, and is observed and monitored.

3.1 Human Rights

See also Appendix 1: Human Rights Legislation

‘As the regulator, our role is to make sure people have safe, high-quality care. Care that does not respect and promote human rights is neither safe nor high-quality.’ (Care Quality Commission)

The Care Quality Commission uses the FREDA principles in its assessment framework. These principles underpin rights-respecting care and help support compliance with the Equality Act 2010 and Human Rights Act 1998. They are:

• fairness;
• respect;
• equality;
• dignity; and
• autonomy (choice and control).

These principles and standards are the key to providing ‘rights respected care’ and should be at the heart of planning and delivery of care and in safeguarding adults processes.

Staff must take action if they think an adult’s human rights are being breached or infringed in any way (including though abuse or neglect) and speak to their line manager or the safeguarding adults team.

4. Guidance

4.1 Types of discrimination

Discrimination can come in the following forms:

• Direct discrimination occurs when a person with a protected characteristic is treated less favourably than others.
• Indirect discrimination is when rules or arrangements are put in place that apply to everyone, but put someone with a protected characteristic at an unfair advantage.
• Harassment is unwanted behaviour linked to a protected characteristic that violates a person’s dignity or creates an offensive environment for them.
• Victimisation is when a person is treated unfairly because they have complained about discrimination or harassment.

For more information, see Discrimination; your rights (gov.uk) 

4.2 Protected Characteristics

Under the Equality Act 2010 the protected characteristics are:

• Age: Where this is referred to, it refers to a person belonging to a particular age (for example 32 year olds) or range of ages (for example 18 – 30 year olds).
• Disability: 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. The Act includes a protection from discrimination arising from disability. This states it is discrimination to treat a disabled person unfavourably because of something connected with their disability.
• Gender reassignment: A trans person is someone who proposes to, starts or has completed a process to change their gender. In the Equality Act, gender reassignment means someone who is proposing to undergo, undergoing or having undergone a process to reassign their sex. To be protected from gender reassignment discrimination, the person does not need to have undergone any medical treatment or surgery to change from their birth sex to their preferred gender. They can be at any stage in the transition process, from proposing to reassign their sex, undergoing a process of reassignment, or having completed it. It does not matter whether or not the person has applied for or obtained a Gender Recognition Certificate (which is the document that confirms the change of a person’s legal sex). It is discrimination to treat transgender people less favourably because they propose to undergo, are undergoing or have undergone gender reassignment than they would be treated if they were ill or injured.
• Marriage and civil partnership: In England and Wales marriage is not restricted to a union between a man and a woman and includes a marriage between a same-sex couple. Same-sex couples and mixed-sex couples can also have their relationships legally recognised as ‘civil partnerships’. Civil partners must not be treated less favourably than married couples (except where permitted by the Act). The Act protects employees who are married or in a civil partnership against discrimination.
• Pregnancy and maternity: Pregnancy is the condition of being pregnant or expecting a baby. Maternity refers to the period after the birth. Protection against maternity discrimination is for 26 weeks after giving birth, and this includes treating a woman unfavourably because she is breastfeeding.
• Race: Race refers to a group of people defined by their race, colour, and nationality (including citizenship) ethnic or national origins.
• Religion or belief: Religion has the meaning usually given to it but belief includes religious and philosophical beliefs including lack of belief (for example atheism). Generally, a belief should affect life choices or the way a person lives for it to be included in the definition. In the Equality Act, religion includes any religion. It also includes a lack of religion.
• Sex: Both men and women are protected under the Act.
• Sexual orientation: Whether a person’s sexual attraction is towards their own sex, the opposite sex or to both sexes. The Act protects bisexual, gay, heterosexual and lesbian people.

5. Further Reading

5.1 Relevant chapter

Providing Culturally Appropriate Care

5.2 Relevant information

Equality and Human Rights, Care Quality Commission

Social Work and Human Rights: A Practice Guide (BASW)

Anti-Racism Resources (BASW)

Appendix 1: Human Rights Legislation

See also Equality and Human Rights Commission 

1. Human Rights Act 1998 Overview

The Human Rights Act 1998 (HRA) lays down the fundamental rights and freedoms to which everyone in the UK is entitled. The rights set out in the European Convention on Human Rights (ECHR) are incorporated in the HRA. It sets out people’s human rights in different ‘articles’, which are all taken from the ECHR. They are:

• Article 2: Right to life;
• Article 3: Freedom from torture and inhuman or degrading treatment;
• Article 4: Freedom from slavery and forced labour;
• Article 5: Right to liberty and security;
• Article 6: Right to a fair trial;
• Article 7: No punishment without law;
• Article 8: Respect for private and family life, home and correspondence;
• Article 9: Freedom of thought, belief and religion;
• Article 10: Freedom of expression;
• Article 11: Freedom of assembly and association;
• Article 12: Right to marry and start a family;
• Article 14: Protection from discrimination in respect of these rights and freedoms;
• Protocol 1, Article 1: Right to peaceful enjoyment of property;
• Protocol 1, Article 2: Right to education;
• Protocol 1, Article 3: Right to participate in free elections;
• Protocol 13, Article 1: Abolition of the death penalty.

Human rights law applies to public bodies and other organisations carrying out functions of a public nature. A number of these articles relate to working with adults with care and support needs, in particular Articles 2; 3; 5; 8.

The HRA can be breached by public bodies if they:

• inflict explicit physical abuse or allow neglect of a person;
• intervene in a person’s life unlawfully and disproportionately;
• fail to intervene to protect a person from being abused or neglected by other persons.

2. Articles 2, 3, 5 and 8

2.1 Article 2 Right to Life

Article 2 applies in health and social care situations and requires an independent investigation into some deaths – coroner inquests – and may involve a breach of human rights with the state or public organisations implicated.

2.3 Article 3 Inhuman and Degrading Treatment

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Degrading treatment would occur if it “humiliates or debases an individual showing a lack of respect for or diminishing his or her human dignity or arouses feelings of fear, anguish, or inferiority capable of breaking and individuals moral and physical resistance.” Pretty -v- UK [2002] 2FC 97

Article 3 is breached most frequently when public bodies carry out or are responsible for abusive care and treatment; that is allowing or ignoring actions when they should not have done so.

There is a positive duty under Article 3 for a public body to intervene when abuse is performed by one private individual against another person.

3. Article 5: Deprivation of Liberty

Depriving an adult of their liberty as part of their care or treatment this is a serious steps, and the Mental Capacity Act 2005 (MCA) and the Mental Health Act 1983 should be followed to avoid a possible breach of Article 5.

4. Article 8: Respect for private and family life, home and correspondence

Article 8 protects a person’s right to respect for their private life, their family life, their home and correspondence (for example, letters, telephone calls and emails).

4.1 Private life

A person has the right to live their life privately without government interference. This is a broad concept as interpreted by the courts, and covers areas such as:

• sexual orientation;
• lifestyle choices;
• how someone chooses to look and dress;
• the right for someone to control who sees and touches their body. In health services, for example, staff cannot leave someone undressed in a ward, or take a blood sample without the person’s permission;
• the right to develop a personal identity;
• to make friendships and other relationships;
• a right to participate in essential economic, social, cultural and leisure activities. In some circumstances, public bodies, such as the local authority, may need to help someone enjoy their ability to participate in society;
• the media and others being prevented from interfering in someone’s life.
• personal information (including official records, photographs, letters, diaries and medical records) being kept securely and not shared without the person’s permission, except in certain circumstances (see Data Protection chapter).

4.2 Family life

People have the right to enjoy family relationships without interference from government. This includes the right to live with their family and, where this is not possible, the right to have regular contact. This includes couples who are not married, between an adopted child and adoptive parent and a foster carer and foster child.

If a local authority makes an unjustified intervention in the life of person lacking mental capacity it may also breach Article 8- London Borough of Hillingdon v Neary [2011] EWHC 1377 (COP)

4.3 Home life

Everyone has a right to enjoy their existing home peacefully. Public bodies, therefore, should not stop a person from entering or living in their home without very good reason. They also cannot enter it without the person’s permission.

A right to home life does not mean, however, a right to be given housing.

4.4 Restrictions to Article 8

There are times when public bodies can interfere with someone’s right to respect for private and family life, home and correspondence. In such situations, the authority must be able to show that such action is lawful, necessary and proportionate in order to:

• protect national security;
• protect public safety;
• protect the economy;
• protect health or morals;
• prevent disorder or crime; or
• protect the rights and freedoms of other people.

Article 8 is not an absolute right. Interference with private life and family life is legally permissible but must be justified within the terms set out above.

A breach of Article 8 would occur if interventions are taken which are:

• inconsistent with the relevant law;
• consistent with the law but disproportionate and therefore unnecessary; or
• for a purpose other than the criteria listed above.