The Equality Act 2010, the bulk of which is expected to come into force on 1 October this year, consolidates, harmonises and expands existing discrimination law. This article highlights those aspects of the Act that employers need to be aware of to ensure they are prepared and will cover the immediate priorities for businesses ahead of 1 October.
What is covered under the Equality Act 2010?
The Act protects against discrimination in the workplace because of age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation. These are described as ‘protected characteristics’ and reflect existing law, with a couple of changes to widen the definitions of disability and gender reassignment.
Types of discrimination
The Act uses the familiar concepts of direct discrimination, indirect discrimination, victimisation and harassment. There have, however, been some changes:
Direct discrimination by association or perception
Discrimination occurs if an employer discriminates against an employee because of a protected characteristic. Except in the case of marriage or civil partnership, the employee need not themselves possess that characteristic. So, it will be unlawful to discriminate against someone because of their connection with someone else with a protected characteristic, or because someone is mistakenly perceived to possess a protected characteristic.
Indirect discrimination occurs when an employer applies a rule or practice which, although apparently neutral, puts people with a protected characteristic at a particular disadvantage. Unjustified indirect discrimination is already unlawful in relation to most protected characteristics. The Act extends coverage to gender reassignment and disability.
Extending disability discrimination
Disability discrimination is extended to cover detrimental treatment arising from disability. An example would be dismissing someone because of a poor attendance record when absences were caused by a disability. This would be unlawful unless dismissal could be justified as a ‘proportionate means of achieving a legitimate aim’ or the employer could not have been expected to know of the disability.
At present, employers can be held liable for sexual harassment by someone from outside their organisation. The Act extends liability for so-called third-party harassment to most other protected characteristics, where the employer has failed to take reasonable steps to prevent it, and provided the employer knows that the employee has experienced third-party harassment on at least two prior occasions. This means businesses are at increased risk of being liable for harassment of staff by customers or users of their service.
Pre-employment health questions
An important feature of the Act is its ban on asking about a candidate's health before offering them work.
Some questions will still be permitted, for example those that are necessary to establish whether a candidate can undergo an assessment for the job or need adjustments or accommodation because of a disability (a test or interview, for example), or carry out an intrinsic function of the job itself, or to monitor diversity. But untargeted health questionnaires will no longer be allowed.
The Equality and Human Rights Commission can take action if the rule is contravened. Furthermore, an unsuccessful job candidate will find it easier to prove disability discrimination if asked about their health during the application process.
The Act bans so-called ‘pay gagging clauses ’ which prevent employers taking action against employees who discuss their pay with a view to finding out if there has been any unlawful discrimination.
A controversial provision that would allow employers to recruit or promote someone because of their protected characteristic if they are ‘as qualified as’ other candidates, looks unlikely to become law in October and could be delayed indefinitely. However, some other forms of ‘positive action’ will be allowed if aimed at enabling or encouraging people with a protected characteristic to overcome or minimise disadvantage, or participate in activity where they are underrepresented.
So how can employers prepare for the Equality Act 2010?
Employers can follow a number of simple steps to ensure they are prepared:
- Review existing policies in all areas of discrimination to ensure they are still relevant
- Ensure all employees with line manager and interviewing responsibilities have attended training so they know when to recognise discrimination and ensure they comply with the law
- Ensure all staff are trained so that they know what to do if they experience harassment or discrimination
- Depending on the nature of the employer’s activities, it might also be appropriate to specifically bring to the attention of clients, customers and commercial contacts that inappropriate behaviour towards staff will not be tolerated.
By Audrey Williams, head of discrimination at Eversheds LLP
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