Annex 6

All employees within the HE sector are protected from unlawful age discrimination, harassment and victimisation in employment under the EqualityAct2010andtheEmploymentEquality(Age)Regulations (Northern Ireland) 2006. Individuals are also protected if they are perceived to be or if they are associated with a person of a particular age group.

Age discrimination can occur when people of a particular age group are treated less favourably than people in other age groups. An age group could be, for example, people of the same age, the under 30s or people aged 45-50. A person can belong to a number of different age groups.

Age discrimination will not be unlawful if it is a proportionate means of achieving a legitimate aim. However, in the context of the REF, the view of the funding bodies is that if a researcher produces excellent research an HEI will not be able to justify not selecting their outputs because of their age group.

It is important to note that early career researchers (ECRs) are likely to come from a range of age groups. The definition of ECR used in the REF (see ’Guidance on submissions’, paragraphs 148 to 149) is not limited to young people.

HEls should also note that, given developments in equalities law in the UK and Europe, the default retirement age has been abolished from 1 October 2011 in England, Scotland, Wales and Northern Ireland.

The Equality Act2010, the Disability Discrimination Act (1995) (Northern Ireland only) and the Disability Discrimination (Northern Ireland) Order 2006 prevent unlawful discrimination, victimisation and harassment relating to disability. Individuals are also protected if they are perceived to have a disability or if they are associated with a person who has a disability (for example, if they are responsible for caring for a family member with a disability).

A person is considered to have a disability if they have or have had a physical and/or mental impairment which has ‘a substantial and long- term adverse effect on their ability to carry out normal day-to-day activities’. Long-term impairments include those that last or are likely to last for at least 12 months.

Cancer, HIV, multiple sclerosis and progressive/degenerative conditions are disabilities too, even if they do not currently have an adverse effect on the carrying out of day-to-day activities. An impairment which is managed by medication or medical treatment, but which would have had a substantial and long-term adverse effect if not so managed, is also a disability.

The definition of disability is different in Northern Ireland in that a list of day-to-day activities is referred to.

There is no list of day-to-day activities for England, Scotland and Wales but day-to-day activities are taken to mean activities that people generally, not a specific individual, carry out on a daily or frequent basis.

While there is no definitive list of what is considered a disability, it covers a wide range of impairments including:

• sensory impairments
• impairments with fluctuating or recurring effects such as rheumatoid arthritis, depression and epilepsy
• progressive impairments, such as motor neurone disease, muscular dystrophy, HIV and cancer
• organ specific impairments, including respiratory conditions and cardiovascular diseases
• developmental impairments, such as autistic spectrum disorders and dyslexia
• mental health conditions such as depression and eating disorders
• impairments caused by injury to the body or brain.

It is important for HEls to note that people who have had a past disability are also protected from discrimination, victimisation and harassment because of disability.

Equality law requires HEls to anticipate the needs of people with disabilities and make reasonable adjustments for them. Failure to make a reasonable adjustment constitutes discrimination. If a researcher’s impairment has affected the quantity of their research outputs, the submitting unit may return a reduced number of outputs (see Guidance on submissions, Part3, Section 1: Staff circumstances).

The Equality Act2010and the Sex Discrimination (Gender Reassignment) Regulations (Northern Ireland) 1999 protect from discrimination, harassment and victimisation of trans people who have proposed, started or completed a process to change their sex. Staff in HE do not have to be under medical supervision to be afforded protection because they are trans and staff are protected if they are perceived to be undergoing or have undergone related procedures. They are also protected if they are associated with someone who has proposed, is undergoing or has undergone gender reassignment.

Trans people who undergo gender reassignment will need to take time off for appointments and, in some cases, for medical assistance. The transition process is lengthy, often taking several years, and it is likely to be a difficult period for the trans person as they seek recognition of their new gender from their family, friends, employer and society as a whole.

The Gender Recognition Act 2004 gave enhanced privacy rights to trans people who undergo gender reassignment. A person acting in an official capacity who acquires information about a person’s status as a transsexual may commit a criminal offence if they pass the information to a third party without consent.

Consequently, staff within HEls with responsibility for REF submissions must ensure that the information they receive about gender reassignment is  treated with particular care.

If a staff member’s ability to work productively throughout the REF assessment period has been constrained due to gender reassignment, the unit may return a reduced number of research outputs (see Guidance on submissions, Part 3, Section 1, Staff circumstances). Information about the member of staff will be kept confidential as described in Guidance on submissions, paragraph 195.

HEIs should note that the Scottish government recently consulted on, and the UK government is currently consulting on, reform of the Gender Recognition Act 2004, which may include streamlining the procedure to legally change gender.

Under the Equality Act 2010 and the Sex Discrimination (Northern Ireland) Order 1976 as amended, individuals are protected from unlawful discrimination, harassment and victimisation on the grounds ofmarriage and civil partnership status. The protection from discrimination is to ensure that people who are married or in a civil partnership receive the same benefits and treatment in employment. The protection from discrimination does not apply to single people.

HEls must ensure that their procedures and decision-making processes in relation to REF 2021 do not inadvertently discriminate against staff who are married or in civil partnerships.

The Fair Employment and Treatment (Northern Ireland) Order1998 protects staff from unlawful discrimination on the grounds of political opinion.

HEls must ensure that their procedures and decision-making processes in relation to REF 2021 do not inadvertently discriminate against staff based on their political opinion

Under the Equality Act 2010 and the Sex Discrimination (Northern Ireland) Order 1976 women are protected from unlawful discrimination, harassment and victimisation related to pregnancy and maternity.

Consequently, where researchers have taken time out of work, or their ability to work productively throughout the assessment period has been affected, because of pregnancy and/or maternity, the submitting unit may return a reduced number of research outputs, as set out in Guidance on submissions, paragraphs 169 to 172.

In addition, HEls should ensure that female researchers who are pregnant or on maternity leave are kept informed about and included in their submissions process.

For the purposes of this summary it is important to note that primary adopters have similar entitlements to women on maternity leave.

The Equality Act 2010 and the Race Relations (Northern Ireland) Order 1997 protect HEI staff from unlawful discrimination, harassment and victimisation connected torace. The definition of race includes colour, ethnic or national origins or nationality. Individuals are also protected if they are perceived to be or are associated with a person of a particular race.

HEls must ensure that their procedures and decision-making processes in relation to REF 2021 do not discriminate against staff based on their race or assumed race (for example, based on their name).

The Equality Act2010and the Fair Employment and Treatment (Northern Ireland) Order 1998 protect HEI staff from unlawful discrimination, harassment and victimisation related to religion or belief. Individuals are also protected if they are perceived to be or are associated with a person of a particular religion or belief.

HEls must ensure that their procedures and decision-making processes in relation to REF 2021 do not discriminate against staff based on their actual or perceived religion or belief, including non-belief. ‘Belief’ includes any structured philosophical belief with clear values that has an effect on how its adherents conduct their lives.

The Equality Act2010 and the Sex Discrimination (Northern Ireland) Order 1976 protect HEI staff from unlawful discrimination, harassment and victimisation related to sex. Employees are also protected because of their perceived sex or because of their association with someone of a particular sex.

The sex discrimination provisions of the Equality Act explicitly protect women from less favourable treatment because they are breastfeeding. Consequently, the impact of breastfeeding on a woman’s ability to work productively will be taken into account, as set out in Guidance on submissions, Part3, Section1, Staff circumstances.

If a mother who meets the continuity of employment test wishes to  return to work early or shorten her maternity leave/pay, she will be entitled to shared parental leave with the father or her partner within the first year of the baby’s birth. Partners may also be eligible for shared parental leave or pay. Fathers/partners who take additional paternity or adoption leave will have similar entitlements to women on maternity leave and barriers that exist to taking the leave, or as a result of having taken it, could constitute unlawful sex discrimination. Consequently, where researchers have taken additional paternity and adoption leave, the submitting unit may return a reduced number of outputs, as set out in Guidance on submissions, Annex L.

HEls need to be wary of implementing procedures and decision-making processes in relation to REF 2021 that would be easier for men to comply with than women, or vice versa. There are many cases where a requirement to work full-time (or less favourable treatment of people working part-time or flexibly) has been held to discriminate unlawfully against women.

HEIs should note that there are now requirements under UK and Scottish legislation for public authorities(including HEIs)to report information on the percentage difference amongst employees between men and women’s average hourly pay (excluding overtime).

The Equality Act 2010  and the Employment Equality(Sexual Orientation) Regulations (Northern Ireland)2003protect HEI staff from  unlawful discrimination, harassment and victimisation related to sexual orientation. Individuals are also protected if they are perceived to be or associated with a person who is of a particular sexual orientation.

HEls must ensure that their procedures and decision-making processes in relation to REF 2021 do not discriminate against staff based on their actual or perceived sexual orientation.

The Welsh Language Act 1993 places a duty on public bodies in Wales to treat Welsh and English on an equal basis. This is reinforced by the provisions of the Welsh Language (Wales) Measure 2011 and the Welsh Language Standards (No6) Regulations 2017.

The arrangements for the assessment of outputs in the medium of Welsh by the REF panels are set out in Guidance on submissions, paragraphs 284 and 285.