What is the Equality Act 2010?
The majority of the provisions contained in the Equality Act 2010 (“the Act”) will become law on 1 October 2010. The Act is the single largest piece of discrimination legislation. It draws together all the discrimination legislation
which has been introduced on a piecemeal basis since the 1970′s. Its overall aim is to simplify, replace and harmonise the existing legislation. Your obligations as an employer remain largely the same.
What does the Act cover?
The Act protects the same groups that were protected by the existing legislation. These have now been given a new name and will become known as the ‘Protected Characteristics’ (“PC”).
The following are PC’s:
- Gender Reassignment
- Marriage and Civil Partnership
- Pregnancy and Maternity
- Religion or Belief
- Sexual Orientation
Essentially, if an individual holds a PC 1, they will benefit from the protection of the Act. The PC’s are the grounds on which discrimination will be deemed unlawful.
1 Some individuals may hold more than one characteristic.
Are there any changes to the definitions of the PC’s?
There are a few changes to some of the definitions:
- 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 2. There is no longer a definition for ‘normal day to day activities.’ Cancer, HIV infection and multiple sclerosis are still deemed disabilities under the Act, meaning they benefit from automatic protection.
- Gender Reassignment– The Act provides protection for transsexuals. A transsexual person is someone who proposes to, starts or has completed a process to change his or her gender 3 . The Act no longer requires a person to be under medical supervision in order to gain protection.
- Race– It is worth noting that the definition of race is now non-exhaustive so now it “includes colour, nationality, ethnic or national origin”. This suggests it could also ‘include’ other factors. The remaining definitions for the PC’s remain unchanged.
2 See section 6 and Schedule 1 of the Act.
3 See section 7 of the Act.
What is discrimination under the Act?
Discrimination can only take place in connection with the PC’s. There are various types of discrimination. In fact a particular event could give rise to more than one type of discrimination. There are also a few new changes to some of the types of discrimination found under the Act. Set out below is a list of the main types of discrimination found under the Act.
The main types of discrimination are:
- Direct Discrimination –this happens where someone is treated less favourably than another because they have a PC or they are thought (perceived) to have a PC. It can also happen because they are associated with someone who has a PC. This type of discrimination applies to all PC’s.Example: An employer uses the excuse of persistent lateness to dismiss an Asian employee because of their race; a person of a different race who has the same pattern of lateness is not dismissed.
- Associative Discrimination –currently applies to race, religion or belief or sexual orientation. It will now cover age, disability, gender reassignment and sex. This is direct discrimination and happens where someone is treated less favourably because they associate with another person who possesses a PC.Example:An employer selects a person for redundancy because they have a disabled child and the employer believes they may need time off to care for their child.
- Perceived discrimination –currently applies to age, race, religion or belief and sexual orientation. It will now cover disability, gender reassignment and sex. This is direct discrimination and happens where someone is treated less favourably because they are perceived to have a particular PC. So it still applies even if that person does not have the PC.Example:An employer makes a member of staff redundant because they incorrectly think they have a disability. This is almost certainly direct discrimination because of disability based on perception.
- Indirect discrimination –currently applies to age, race, religion or belief, sex, sexual orientation and marriage and civil partnership. It will now cover disability and gender reassignment. Indirect discrimination happens where you have a condition, rule, policy or practice that applies equally to everyone, but has the effect of being disadvantageous to a particular group who share a PC.Example:An employer applies a policy requiring all employees to be available to work over a 24 hour period. This new policy impacts disproportionately on the female employees (who predominately have childcare responsibilities). Unless the employer can show that what they have done, or intend to do, is objectively justified, this will be indirect discrimination.
- Harassment –this is unwanted conducted related to a relevant PC, 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. This applies to all the PC’s. The new Act also provides that employees can complain of behaviour they find offensive, humiliating etc even if not directed to them and they need not have the relevant PC themselves. Likewise, employees will now also be protected from harassment because of a perception or association.Example:A manager propositions one of his team members, she rejects his advances. She is later demoted for no apparent reason. This is likely to be harassment.
- Victimisation –this happens when an employee is treated less favourably because they have made or supported a complaint or raised a grievance under the Act, or they are expected to do so 4. This form of discrimination applies to all PC’s.Example:An employee complains of discrimination and a colleague goes to their Employment Tribunal to give them support. The colleague is subsequently selected for redundancy because the employer resents their support for the original employee. This is almost certainly victimisation.
4 They will not be protected if they have maliciously made or supported an untrue complaint.
Will pre employment questionnaires be banned?
Whilst, the new Act is not quite a blanket ban on pre employment health enquiries, it does limit the circumstances when you can ask health related questions before you have offered the candidate a job. The general rule will be that an employer must not ask about a candidate’s health before offering them the job.
You can however ask such questions where it is necessary for the purpose of:
- establishing whether the candidate will be able comply with a requirement to undergo an assessment (such as an interview or test);
- establishing whether the candidate will be able to carry out a function that is intrinsic to the work concerned (for example, if a job involves heavy lifting it may be necessary to ask the candidate with a mobility impairment whether they could manage this);
- establishing whether there is a duty to make reasonable adjustments for the disabled person in relation to the selection process;
- monitoring diversity amongst candidates making the application for jobs (for example, an employer may ask whether someone has a disability for the purposes of ensuring that their adverts are reaching disabled persons);
- taking positive action (for example, you may decide to guarantee interviews for disabled persons); and
- assuring yourself that a candidate has the disability where the job genuinely requires the jobholder to have the disability (for example, a mental charity requires a candidate with personal experience of mental health conditions. They advertise for a candidate who has such a condition, they may ask at interview whether the candidate has that condition).
An employer will not commit an act of disability discrimination merely by asking about the candidate’s health, but if they rely upon this information this could give rise to a discriminatory act.
What is disability arising from discrimination?
This is a new form of discrimination contained in the Act. It covers conduct which arises not because of an employee’s disability itself, but because of something arising as a consequence of that disability, for example dismissing a disabled person because they have been absent because of their disability. It will however
be possible for employers to justify discrimination arising from disability, provided they can show their actions are objectively justified (a proportionate means of achieving a legitimate aim).
What is positive action?
Positive action has been permitted by discrimination legislation for some time. For example, employers are entitled to direct training at groups they consider to be under represented.
In the Act there are two forms of positive action envisaged:
- General positive action
- Positive action in recruitment and selection.
The measures on positive action in recruitment and selection (which enables employers to select someone from an underrepresented group in a recruitment situation which would, otherwise, (be a “tie break”)) will not come into force
in October. General positive action, however, will. This allows employers to introduce measures to help overcome a perceived disadvantage or meet a specific need, as well as to train and encourage. This is akin to making reasonable adjustments in “non disability” spheres (such as providing a prayer room). Any such measures are entirely voluntary.
Will pay secrecy clauses be banned?
No. However, a secrecy clause (which requires an employee to keep their pay details secret and prohibits them from discussing it with other employees) will be unenforceable against employees involved in a “relevant pay disclosure”.
You can require your employees to keep their pay confidential from others outside the workplace, for example a competitor organisation.
What is a relevant pay disclosure?
This is a pay discussion which must relate, to some degree at least, to the possibility of discrimination. For example, a female employee has a discussion with a male colleague to find out whether there is a difference in their pay, and as such to determine whether there is any discrimination.
Can I dismiss another employee who tells another they have been paid?
This would be regarded as victimising the employee because they make a ‘relevant pay disclosure’ and will be unlawful under the Act. If you did dismiss in this circumstance it would leave you exposed to claims.
Will I be required to publish my staff’s rates of pay?
There is a power in the Act for the Government to require employers to publish information relating to differences in pay where the employer has more than 250 employees (private sector) and where the employer has over 150 employees (public sector). Public sector employers may be required to publish gender pay gap information from April 2011. The Government is still deciding whether to apply this power to private sector employees ‘so watch this space’.
Are there any ‘exceptions’ where the Act is different from the old laws?
A few examples where the Act applies ‘exeptions’ differently:
- Occupational requirements –if you can show that a particular PC is central to a particular job, you can insist that only someone who has that particular PC is suitable for the job. This is known as an ‘occupational requirement’.
- Obeying another law –you can take into account a PC where not doing this would mean you broke another law. For example, if the law said that a person had to be a particular age to do something and you discovered that they were not that age, you could dismiss them without this being unlawful discrimination.
- National security – you can take a person’s PC into account if there is a need to safeguard national security, and the discrimination is proportionate. However, we would always recommend you take advice before applying an exception.
What should I do now?
- Brief your line managers and key personnel about the changes.
- Review your policies and procedures, especially in relation to equal opportunities and recruitment and consider whether these need updating.
- Review your contracts of employment in relation to pay secrecy clauses.
- Familiarise yourself with the statutory codes of practice contained on the Equality and Human Rights Commission website 5.
- If you feel out of your depth, seek legal advice.