The Equality Act 2010

1st October 2010

Over the last four decades, discrimination legislation has played an important role in helping to make Britain a more equal society. However, the legislation was complex and, despite the progress that has been made, inequality and discrimination persist and progress on some issues has been stubbornly slow.

The Equality Act 2010 provides a new cross-cutting legislative framework to protect the rights of individuals and advance equality of opportunity for all; to update, simplify and strengthen the previous legislation; and to deliver a simple, modern and accessible framework of discrimination law which protects individuals from unfair treatment and promotes a fair and more equal society.

Below is a brief overview of some of the major changes.

What are protected characteristics under the Act?

The following are protected characteristics under the legislation:

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

What types of discrimination will be unlawful?

• Direct Discrimination - where someone is treated less favourably than another person because of a protected characteristic
• Indirect Discrimination - where a rule or a policy that applies to everyone within the organisation can disadvantage people with a particular Protected Characteristic unless that required characteristic can be justified by showing that it was a reasonable characteristic to enable you to manage your business, i.e. that it is 'a proportionate means of achieving a legitimate aim'
• Associative Discrimination - where direct discrimination takes place against a person because they associate with someone who has a Protected Characteristic e.g. where an employee is discriminated against due to him/her being a carer of his/her disabled son
• Discrimination by Perception - where direct discrimination takes place against someone because others think they possess a Protected Characteristic, whether they do or not e.g. where an employee is discriminated against because he is thought to be gay even though he is not

What is the effect of the Act on pre-employment medical questionnaires?

Pre-health questionnaires are banned unless they are used in one of the following circumstances:-

• To make reasonable adjustment to facilitate interviewing for the job
• Equality monitoring
• To explore whether a prospective employee is able to undertake a function which is intrinsic to the work
• Positive action
• Disability is required for the role

An example of the 'intrinsic function' exception would be where an employee applies for a job in a warehouse which requires a lot of heavy manual handling. In this circumstance, the employer could ask a candidate with a mobility impairment whether they could manage handling heavy goods but they would not be able to ask the person how their impairment would affect them in getting to the workplace, because this is not something that is intrinsic to the job itself.

What is the effect of the Act on third party harassment or discrimination?

The prohibition on third party harassment of employees already applies to sex. Under the new Act this is now extended to cover age, disability, gender reassignment, race, religion or belief and sexual orientation.

The Equality Act makes employers potentially liable for harassment of their employees by people (third parties) who are not employees of your company, such as customers or clients. Employers will only be liable when harassment has occurred on at least two previous occasions, when the employer is aware that it has taken place and has not taken reasonable steps to prevent it from happening.

Can employers restrict employees talking about their pay?

The Act makes it unlawful for employers to prevent or restrict employees from having a discussion to establish if differences in pay exist that are related to protected characteristics. It also makes terms of the contract of employment that require pay secrecy unenforceable because of these discussions. The legislation does not prevent an employer from requiring their employees to keep pay rates confidential from some people outside the workplace e.g. a supplier.

In what areas does the Act strengthen discrimination laws?

The Act strengthens the law in the following ways:

• It extends the circumstances in which a person is protected against discrimination, harassment or victimisation
• It allows for dual discrimination. This means that people can make a claim if they are directly discriminated against because of a combination of two protected characteristics (is likely to come into force in April 2011)
• It creates a single public sector equality duty to extend protection to all protected characteristics.
• It allows an employer or service provider or other organisation to take positive action
• It enables an employment tribunal to make a recommendation to an organisation to remedy matters for the wider workforce and not just a single claimant

What is the timetable for implementation of the Act?

On 3rd July 2010 Ministers announced that the majority of provisions in the Equality Act 2010 will come into force on 1st October 2010.

As of today there is no decision as to when the following provisions will come into force:

• The public sector equality duty
• Protection from age discrimination in access to goods, facilities and services
• Dual discrimination
• Civil partnerships in religious premises
• Diversity reporting for political parties

Are there any provisions in the Act that are at risk of not being implemented by the Coalition Government?

Yes. Ministers have not yet decided if or when the following three provisions should come into force:

• Socio-economic duty
• The positive action 'tie break' clause in relation to employment
• Gender pay gap reporting requirements for the private and voluntary sectors

For further information relating to this article or any other employment issue, please contact employment@thomas-carroll.co.uk