Veitch Penny LLP - Exeter | Crediton, Devon

Equality Act 2010: It’s finally here.  What does it mean for employers?

The main provisions of the Equality Act 2010 (“the Act”) came into force on 1st October 2010, with subsequent parts coming into force in 2011 and beyond.  The Act itself is a large document, made up of 218 sections and 28 schedules.  It should be noted that the Act is not solely a piece of employment legislation as it outlaws discrimination in other areas including education and the provision of goods and service.  However, this briefing concentrates on the major changes which will have the most immediate practical effect for employers.

The Act replaces all the various pieces of anti-discrimination legislation which have developed over time into one single piece of legislation.  It is designed to be easier to understand, removing inconsistencies which have arisen in the various strands of the law over the years.

Employers need to be aware of the Act, because whilst some key concepts remain the same, others will change, and the scope of protections will be extended to cover new types of discrimination.  For example, it makes it easier for disabled people to bring claims, as their ability to bring claims was severely limited following the case of the London Borough of Lewisham –v- Malcolm, and the definition of disability has also been simplified.

The Act provides protection from discrimination for those people that fall within the “protected characteristics”.  These are

• Age
• Disability
• Gender re-assignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race (now including colour, nationality, ethnic or national origin)
• Religion or belief
• Sex (including equal pay)
• Sexual orientation

The Act broadens the scope of the definitions of disability, race and gender re-assignment, and will therefore make this particular hurdle easier for claimants to get over.

The Act goes on to set out the ways in which discrimination can occur:

1. Direct Discrimination
   
   This occurs where a person is treated less favourably than another “because of” a protected characteristic they have, or are thought to have (known as “perceptive discrimination”) or because they associate with someone with a protected characteristic, whilst not necessarily falling within a protected characteristic themselves (known as “associative discrimination”).

   The phrase “because of” has been used to replace the phrase “on the grounds of“ so that direct discrimination can be interpreted widely, and sufficiently broadly to cover associative and perceptive discrimination.

   Both discrimination by association and discrimination by perception already exist in relation to certain types of discrimination, but have now been extended to apply to all the protected characteristics, save for marriage/civil partnerships.

   There remain no defences to direct discrimination, save in respect of age where direct discrimination can be justified, if the act of discrimination is a proportionate means of achieving a legitimate aim. 
   
   

2. Indirect Discrimination
   
   This occurs when a person is disadvantaged by a policy, practice or criterion which applies to all, but has a disproportionate effect on a part of the workforce with a protected characteristic.  It is only possible to justify cases of indirect discrimination if it is shown that the policy or practice is a proportionate means of achieving a legitimate aim.   Again, this form of discrimination already existed, but has been extended in scope to encompass more protected characteristics.
   
   Provisions have also been put in place to address the problems for claimants brought about by the Malcolm case removing the requirement for a comparator completely.
   
   
3. Harassment
   
   Discrimination by harassment has been extended in scope and may take the form of:
   a)    Harassment
   This is conduct “related to” (rather than “because of”) a 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”.  Again, it is possible for harassment to take place by association and perception.  The choice of the phrase “related to” suggests that the test only requires the conduct to be sexual, racial etc in nature, i.e. there is no need to show intent.
   b)    Third party harassment
   This has been extended widely, and received much press attention as a result.  Third party harassment takes place when an employee is harassed by a non-employee (e.g. a customer) because of a protected characteristic.  It only applies where harassment has taken place on at least two separate occasions (not necessarily by the same person), and where the employer was aware of the harassment and failed to take reasonable steps to prevent further acts. 
   c)    Victimisation
   This takes place where a person is poorly treated because they have made or supported a grievance or complaint based on discrimination.

What other significant changes take place in October 2010?

Duty to make reasonable adjustments

The duty to make reasonable adjustments set out in the Disability Discrimination Act 1995 has been extended.  The original obligation was for employers to make reasonable adjustments to prevent any of their provisions, criteria or practices or any physical features of their premises which may place a disabled person at substantial disadvantage.  The new Act now extends this duty upon employers to provide an auxiliary aid where the lack of that auxiliary aid would place the disabled person concerned at a substantial disadvantage.

Pre-employment health questionnaires

Employers are now prevented from asking pre-employment health questions unless the employer has already an offer of employment (which may be a conditional offer).   In very limited circumstances, questions may be asked.  For example, to establish whether the applicant will be able to “carry out a function that is intrinsic to the work concerned”, to establish what reasonable adjustments need to be made to accommodate the applicant, to monitor diversity, etc.  At this early stage however, it is unclear what will and will not be acceptable questions.

The reasoning behind this change was that the asking of health questions prior to employment was one of the biggest reasons why disabled applicants fail to progress with the recruitment process.

Pay secrecy clauses

Secrecy clauses within contracts of employment which prevent employees from discussing their pay with colleagues are unenforceable.  Any action taken against an employee for taking part in such discussions can be victimisation.

And what else is on the horizon?

The government is still considering and consulting upon further changes including;

·         dual discrimination (allowing dual claims of discrimination to be brought in relation to a combination of two protected characteristics),

·         extending the public sector equality duty to include more protected characteristics,

·         creating a new public sector duty (where public bodies will need to actively consider how their decisions could help reduce socio-economic disadvantage),

·         the publishing of gender pay gap information,

·         equal pay audits,

·         positive discrimination in recruitment

What should employers do next?

As a starting point, employers will need to review their current policies and procedures to make sure they comply with the Equality Act, and ensure that they do not hinder equality in the workplace.  They will also ensure that relevant information and changes in policy are disseminated through the workforce with the clear message that it is unlawful to discriminate.