Equality, Diversity and Human Rights

1. Equality and Diversity - What The Law Says

1.1 The Equality Act 2010

The Equality Act 2010 is a piece of legislation that makes it unlawful to discriminate against someone because of certain personal characteristics. They are called ‘protected characteristics’.

The protected characteristics are:

• Age;
• Race;
• Sex;
• Gender reassignment;
• Disability;
• Religion or belief;
• Sexual orientation;
• Marriage or civil partnership;
• Pregnancy and maternity.

There are 4 types of discriminatory behaviour:

Direct discrimination	When someone is treated less favourably because of a protected characteristic e.g., someone is excluded from an activity because of their age.
Indirect discrimination	When goods or services have criteria that serve the purpose of excluding access to people because of a protected characteristic.
Harassment	Intentional or unintentional behaviour that violates dignity and creates an intimidating, hostile, degrading, humiliating or offensive environment.
Victimisation	When someone is treated unfairly as a result of making a complaint about discrimination.

The act also sets out the public sector Equality Duty, which requires public authorities to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between different groups.

1.2 The Human Rights Act 1998

The Human Rights Act 1998 sets out the basic rights of everyone. You cannot prevent someone from exercising one of their rights without good reason, often without legal authority having been granted by a court. You also cannot discriminate against someone for exercising their rights.

Each right in the Act is referred to as an 'article'.

The following articles are pertinent to equality and diversity, as they give legal recognition to difference:

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

Article 9: Freedom of thought, belief and religion.

Article 10: Freedom of expression.

Article 12: Right to marry and start a family.

Information about what these articles mean is in the next section of this chapter.

1.3 The Care Act 2014

Under the Care Act 2014, discrimination is a category of abuse and neglect. This means that, if discrimination is taking place and the safeguarding duty applies, a safeguarding concern must be raised.

For further information, see: Safeguarding Adults.

1.4 The Mental Capacity Act 2005

Principle 1 of the Mental Capacity Act makes it unlawful to make assumptions about someone’s mental capacity based solely on any of the following:

1. Age;
2. Appearance;
3. Behaviour;
4. A physical or mental health condition;
5. Having been found to lack capacity to make a previous decision.

For further guidance, see: The Mental Capacity Act 2005 Resource and Practice Toolkit.

2. Human Rights - What The Law Says

2.1 The Human Rights Act 1998

The Human Rights Act 1998 sets out the basic rights of everyone. You cannot prevent someone from exercising one of their rights without good reason, often without legal authority having been granted by a court. You also cannot discriminate against someone for exercising their rights.

Each right in the Act is referred to as an 'article'.

The numbering corresponds with the article numbers in the European Convention on Human Rights, a treaty signed by European nations in 1953. There is no Article 1 or Article 13, as these have since been fulfilled.

The articles

Article 2: Right to life.

Article 3: Freedom from torture and inhumane 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 your family life, home and correspondence.

Article 9: Freedom of thought, belief or 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.

What the articles mean

Article 2: Right to life

Article 2 is simply that nobody can intentionally end or try to end your life.

Article 3: Freedom from torture and inhumane treatment

Inhuman or degrading treatment includes serious physical or psychological abuse in a care setting, and treatment that is humiliating or undignified.

Article 4: Freedom from slavery and forced labour

Article 4 protects everyone’s right not to be forced into modern slavery. This includes slavery, human trafficking, forced labour and domestic servitude, and debt bondage - being forced to work to pay off debts that will never be paid.

Article 5: Right to liberty and security

Article 5 is the right to freedom. It ensures that nobody is ever illegally detained.

Depriving people of their liberty without having an authorisation is a breach of Article 5.

Article 6: Right to a fair trial

This article protects the rights of people that have been arrested to have a fair and public trial or hearing.

Article 7: No punishment without law

Article 7 means that people can only be charged for a crime if the act they committed is a criminal offence in current law. It also means that courts can only give sentences that were available to hand out at the time the crime was committed.

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

Article 8 includes the right to:

• Determine your sexual orientation;
• Develop your personal identity.

Article 9: Freedom of thought, belief and religion

Article 9 includes the right to:

• Wear religious clothing;
• Talk about your beliefs and take place in religious worship;
• Change your beliefs or religion at any time.

Article 9 incorporates all religious belief, but also beliefs such as atheism, veganism and pacifism.

Article 10: Freedom of expression

Article 10 includes the right to hold your own opinions and to express them freely.

Article 11: Freedom of assembly and association

Article 11 is the right to form or be part of a trade union, political party or any other association or voluntary group.

Article 12: Right to marry and start a family

Article 12 is the right to marry anyone you choose (within the realms of the law). This right includes transexual people.

Article 14: Protection from discrimination in respect of these rights and freedoms

All of us, no matter who we are, enjoy the same human rights and should have equal access to them. This article makes it illegal to restrict rights due to a protected characteristic of the Equality Act 2010.

Further information about the Human Rights Act 1998

Equality and Human Rights Commission: The Human Rights Act

2.2 The Mental Capacity Act 2005

Deprivations of Liberty fall under the remit of the Mental Capacity Act 2005. A deprivation of liberty (breach of Article 5 of the Human Rights Act) occurs when a person who lacks capacity to consent to their care or treatment:

1. Will be (or is) under continuous supervision or control; or
2. Will not be (or is not) free to leave the place where they are receiving care or treatment; and
3. The care, support, or treatment is imputable to the state.

Deprivations of liberty cannot take place legally until they have been authorised by either the DoLS framework or the Court of Protection.

For further guidance, see: Recognising and Responding to Deprivations of Liberty.

3. Equality, Diversity and Human Rights in Adult Social Care

3.1 The importance of equality, diversity and human rights

Equality, diversity, and human rights are important values and principles that underpin all adult social care practice. Applying them is essential for providing high-quality interventions and improving outcomes for people who use services.

• Equality, diversity, and human rights  help provide person-centred, strengths-based interactions and tailored interventions/services that understand and meet the needs and preferences of everyone;
• Equality, diversity, and human rights  uphold dignity and respect. Barriers and biases are eliminated, and interventions/services are fair, accessible, appropriate and culturally sensitive;
• Equality, diversity and human rights ensure that rights are understood, respected and protected, that people have choice and control and can make (or participate in) decisions that affect them;
• Equality, diversity and human rights help to challenge discrimination and oppression, and to uphold social justice and promote inclusion;
• Equality, diversity, and human rights help staff and professionals in adult social care to develop their professional identity and competence;
• Equality, diversity and human rights promote and develop a positive culture across the local authority, where differences are valued and celebrated.

Being able to evidence that equality, diversity and human rights values and principles are upheld is also crucial in ensuring the regulatory standards and requirements of Social Work England, The Health and Care Professions Council and the Care Quality Commission are met.

3.2 Human Rights Principles

4. Promoting Good Practice

The following are some of the ways that good equality, diversity and human rights practice can be promoted in adult social care:

• Applying the FREDA principles (Fairness, Respect, Equality, Dignity, Autonomy) to all aspects of practice, from the first point of contact through to assessment, eligibility decisions, financial assessment, Care and Support /Support Planning, review and safeguarding;
• Understanding and respecting the diversity and culture of people and their carers/families and arranging/providing culturally appropriate care that meets their needs;
• Involving people and their carers/families in plans and decisions, supporting them to have choice and control over their own care and support;
• Providing information and advice on rights and entitlements, and how to access advocacy or legal support if needed.

Working in partnership with other agencies to promote a culture of equality and human rights across organisations.

5. Recognising and Responding to Poor Practice

If equality, diversity and human rights values, principles and legal obligations are not respected or upheld, this can lead to poor practice and/or discrimination.

5.1 Examples of poor practice

The following are just some examples of poor practice:

• Failing to provide adequate or culturally appropriate care or support;
• Ignoring or dismissing people’s views and preferences;
• Making decisions without the consent or involvement of people;
• Using abusive, offensive, or derogatory language or behaviour towards or about people;
• Excluding or isolating people from activities or opportunities;
• Applying policies or procedures that have a negative or disproportionate impact on certain groups of people. 

5.2 Challenging poor practice

Where poor practice is identified, it should always be appropriately challenged.

This challenge should always begin on the premise that you can influence change through effective communication about the impact and consequences of the poor practice.

Where this is not possible, a more formal approach should be considered.

For example:

• Raising a safeguarding concern;
• Seeking legal advice about appropriate action, for example through the Court of Protection;
• Reporting concerns about a service provider to commissioners or the CQC;
• Whistleblowing (see below).

5.3 Whistleblowing

The Local Authority values openness, transparency and candour and encourages you to raise concerns as soon as possible about the practice or action of any individuals (whether they are employed by the Local Authority or not) or organisations that you feel;

• Compromises the safety or Wellbeing of a person with Care and Support needs; and/or
• Compromises the safety or Wellbeing of a carer with support needs; and/or
• Compromises the safety of a child.

This includes any practice that you feel is in breach of equality, diversity and human rights law, values or principles.

For guidance about whistleblowing processes, see: Whistleblowing.

6. Further Information and Guidance

GOV.UK: Equality Act 2010 guidance

Skills for Care: Equality and Diversity

Local Government Association: Equality, diversity and inclusion in care and health

Care Quality Commission: Equality, diversity and human rights - adult social care services

Care Quality Commission: Culturally appropriate care

Skills for Care: Culturally appropriate care

BASW: Social Work and Human Rights - A Practice Guide

Equality and Human Rights Commission: The Human Rights Act

Equality and Human Rights Commission: Equality and human rights in social care

7. Workplace Discrimination

Staff are protected under the Equality Act 2010 and Human Rights Act 1998 in the same way as everyone else.

Anyone that feels they are a victim of workplace discrimination should make a record of the behaviour that has taken place.

Available options:

• Report the discrimination;
• Raise a grievance using the grievance procedures;
• Make a claim to the Employment Tribunal.

Independent advice can be sought from the Equality Advisory Support Service:

Tel: 0808 800 0082

Online contact form: www.equalityadvisoryservice.com/app/ask

For further information, see: Citizens Advice - Dealing with discrimination at work

Note: Anyone raising a complaint about discrimination must not experience further discrimination or be negatively impacted on because they have made a complaint.