The Equality Act 2010 (the "Act"), many provisions of which came into force with effect from 1 October 2010, is probably one of the most important pieces of employment legislation to be introduced in recent years. This newsletter seeks to answer some of the most frequently asked questions about the Act.
ABOUT THE ACT
Why has the Act been introduced?
The key aim of the Act is to harmonise and streamline existing discrimination legislation which is currently contained in a number of statutes, including the Sex Discrimination Act 1975, the Race Relations Act 1976, the Disability Discrimination Act 1995, the Employment Equality (Sexual Orientation) Regulations 2003, the Employment Equality (Religion or Belief) Regulations 2003 and the Employment Equality (Age) Regulations 2006. These will all be repealed and replaced by the Act.
Over the years, the different strands of discrimination law have developed in different ways. This has led to subtle differences between the forms of protection. These anomalies will be removed once the Act comes into force. The Act also seeks to strengthen and extend the law to support progress on equality.
What types of discrimination does the Act cover?
The Act covers discrimination on the grounds of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation. These are known as "protected characteristics" in the Act. The Act also covers those concepts currently covered by the Equal Pay Act 1970.
What are the main changes?
The main changes in the Act are as follows:
A different definition of "disability";
Expanded protection against disability discrimination;
Prohibition on asking pre-employment health-related questions;
Extension of the concept of associative discrimination to all strands of discrimination;
Limiting pay secrecy provisions; and
Extending the remit of Employment Tribunals to make recommendations.
Whilst the above changes (and other less significant changes) will be made once the Act is implemented, it is important to remember that many of the current discrimination principles will continue to exist.
FORMS OF DISCRIMINATION
What forms of discriminatory behaviour are prohibited by the Act?
The concept of "direct discrimination" and "indirect discrimination" will remain, although it should be noted that indirect discrimination will also apply to disabled persons (this is not currently the position in the Disability Discrimination Act 1995). The concepts of "harassment" and "victimisation" will remain too. Many of these concepts will have minor tweaks made to them by the Act (for example, direct discrimination is currently defined as discrimination on the grounds of sex, race, etc but will become discrimination because of a protected characteristic instead), although the practical effects will be largely the same.
The current concept of "disability-related discrimination" (the effect of which was severely limited from a claimant's point of view by a case called London Borough of Lewisham v Malcolm in 2008) will be replaced and expanded by "discrimination arising from disability" (see below for further information). The duty to make reasonable adjustments in relation to disabled persons will continue to apply.
Also, new discrimination protection will be created, including "associative discrimination" and "discrimination by perception". Whilst these concepts are already in place for some strands of discrimination, they will now be expanded to cover all protected characteristics (except pregnancy, maternity leave, marriage and civil partnerships).
What is associative discrimination and discrimination by perception?
Associative discrimination occurs when a person is treated less favourably not because of their own protected characteristics but because of someone else's. An example would be where a non-disabled employee asks for time off work to care for her disabled child but is prevented from taking it (which was the very issue in a case called Coleman v Attridge Law in 2009). This could, depending on the circumstances, give rise to a disability discrimination claim.
Discrimination by perception could include, for example, treating a person less favourably because they look over 50, but the individual is not, in fact, over 50.
DISABILITY DISCRIMINATION
How has the definition of "disability" changed?
The new definition of disability is very similar to the current definition. A person is considered to be disabled if they have a mental or physical impairment that has a long-term and substantial adverse effect on their ability to carry out normal day to day activities. However, the Act does not prescribe what capability must be effected in order to render a person unable to carry out "normal day to day activities" as is currently the case under the Disability Discrimination Act 1995 (which details the capabilities as being mobility, manual dexterity, physical co-ordination, continence, ability to lift, carry or otherwise move everyday objects, speech, hearing or eyesight, memory or ability to concentrate, learn or understand and perception of the risk of physical danger).
In practical terms this is not likely to make a significant difference, although it is perhaps arguably less difficult for an employee to show that they are disabled.
What are the new forms of disability protection and how will these work in practice?
Disability discrimination will include a new concept of "indirect discrimination" and a further new concept of "discrimination arising from disability" (which replaces the current concept of disability-related discrimination). It should also be remembered that some existing forms of discrimination (being, direct discrimination and the failure to make reasonable adjustments) are retained as well.
Indirect discrimination is defined as being a situation where B is disabled and "A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's". Note that indirect discrimination can, however, be justified if it is "a proportionate means of achieving a legitimate aim". In practice it is perhaps unlikely that this provision will be used significantly as quite often the circumstances are likely to be better dealt with under a different strand of disability discrimination law, for example, discrimination arising from disability.
Discrimination arising from disability is defined as being where "A treats B unfavourably because of something arising in consequence of B's disability". Again, note that this can be justified if A's treatment is "a proportionate means of achieving a legitimate aim". The key change brought about by this new strand of discrimination, when comparing it to the current regime of disability-related discrimination, is that there is no requirement for a comparator (i.e. the test will be whether B has been treated unfavourably, rather than less favourably compared with a colleague).
Can I ask a candidate about their health before offering them work?
Under the Act, the general rule will be that an employer must not ask a job applicant questions about their health before making an offer of employment. This means that employers should not be sending out pre-employment questionnaires or suchlike as part of the recruitment process.
It is accepted that there will be limited circumstances where health-related questions can be asked, for example, where you need to establish whether reasonable adjustments need to be made to the recruitment process or where the questions are posed as part of equal opportunities monitoring information.
Although this is a change to the current legislation, it has always been the case that employers should be wary of asking health-related information at an early stage, as the implication can be that a person is not offered employment because they are disabled. It is simply the case that this principle in now enshrined in the law.
OTHER NEW CONCEPTS
What are "pay secrecy" provisions and how are they limited under the Act?
Pay secrecy clauses are provisions which attempt to stop employees from discussing their remuneration with one another. Employers often dislike employees comparing their salary, bonuses, benefits and suchlike with each other as it can lead to rivalry, questions about why one person gets more than another person and, often, discrimination and/or equal pay claims.
The Act limits the use of pay secrecy clauses by making them unenforceable in circumstances where the employee is making a "relevant pay disclosure". A relevant pay disclosure is one that is made for the purpose of establishing whether there is a connection between pay and any protected characteristic (for example, sex, race, age, etc). However, in practice, it will be difficult for employers to determine whether a disclosure is made to establish discrimination or not and therefore the reality is likely to be that pay secrecy clauses will not be readily enforced by employers in the future.
What is the impact of the Act on Tribunal recommendations?
Currently, Employment Tribunals are able as part of a judgment to make recommendations (i.e. that the employer takes, within a specified time period, an action to remove or reduce the effects of discrimination) but only in relation to that specific claimant (and not to the workforce generally). Following implementation of the Act, Tribunals can make any recommendation that will prevent or reduce the adverse effect any matter to which the discrimination proceedings relate. In practice, this could include a wide range of recommendations from the introduction of an equal opportunities policy to retraining of staff.
Whilst the recommendations are not binding, failure to comply with a recommendation is likely to be used as evidence to support any subsequent similar discrimination claims. Additionally, the amount of any compensation that is awarded to the claimant may be revised upwards for failure to comply.
FUTURE CHANGES
Are there any more changes to discrimination law on the horizon?
Not all of the provisions of the Act will be coming into force on 1 October 2010. The key provisions which have a later implementation date (or no implementation date as yet) include:
Dual discrimination – this is basically discrimination because of a combination of protected characteristics (for example, because an employee is a black woman, rather than simply because she is black or a woman). It is expected that this may come into force in April 2011, although this is yet to be confirmed.
Positive action – this is the concept that has sparked much press coverage and outcry. In a nutshell, positive action is where you have two equally qualified candidates and you choose one of them because they possess a protected characteristic (such as sex, race, etc) which is under-represented in the workplace. It is, however, a concept that is not likely to have a hugely significant impact even if it does come into force (which is not certain as yet) as this situation will only arise in very limited circumstances. It should also be noted that employers are not obliged to take positive action; it is simply an option available to them.
Caste discrimination – there is a provision in the Act that allows protection in respect of "caste" to be added. However, it is the European Human Rights Commission's view that caste should already be covered by the concept of "race" so this issue is being investigated further.
Gender pay gap data – provision is included in the Act to compel private sector employers with 250 or more employees to publish gender pay gap information. This was to encourage employers to be more transparent and to address the recognised pay gap between men and women. It is not expected that this obligation will be introduced prior to 2013.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
