UK: Equality Act 2010

Last Updated: 21 October 2010
Article by Emma Bartlett

Changes to definitions

For the first time, all of the characteristics which are protected for discrimination purposes are distilled into one section of one Act (Section 4 of the Equality Act 2010). They are:

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

Any changes to definitions?

There are some minor changes to the definitions of protected characteristics in that the definition of "race" is now expressed as "includes colour, nationality ethnic or national origin". This means that the definition is now not exhaustive and may be extended. The Act also provides for regulations to be made to include "caste" specifically into the definition of race.

The Act also amends the definition of gender reassignment. A person will not need to show that they are undergoing or have undergone medical supervision. It is enough to show that they are living as a member of the opposite sex. Transvestites are not covered by this definition.

Harmonisation – direct discrimination

New definition of direct discrimination. There is a new uniform definition of direct discrimination:

  • "a person (A) discriminates against another (B) if, because of a protective characteristic, A treats B less favourably than A treats or would treat others".

Any changes? The difference between this and the current definition is the words "because of", which replaces "on grounds of" or "on the ground of". In practice this gives rise to two new claims based on "association and perception" direct discrimination.

The definition of victimisation has changed slightly. Establishing a comparator is no longer required.

Are there any exceptions?

Age discrimination. Direct discrimination is not normally justifiable, but the exception remains for direct age discrimination, which can still be objectively justified.

Disability discrimination. Also, treating a non-disabled person less favourably than a disabled person remains lawful discrimination.

Pregnancy. A man cannot complain that special treatment afforded to women in connection to pregnancy or childbirth is unlawful discrimination.

Pregnancy and maternity discrimination

There is a new reference to "unfavourable treatment" rather than "less favourable treatment" where the claim is based on pregnancy and maternity discrimination. Employees who are pregnant or on maternity leave are in unique positions in the workplace and do not need to rely on a comparator provided the treatment complained of is unfavourable because of her pregnancy or because of illness suffered by her as a result of it.

Harassment – harmonisation and third party liability

The definition of harassment has been harmonised across all protected characteristics with the exception of pregnancy and maternity (which would have to rely on sexual harassment), marriage and civil partnership. The extension of this definition means that employers will be expressly liable in certain circumstances for failing to prevent repeated harassment of employees by third parties.

Association and perception

It will be unlawful to discriminate against someone because of their association with someone having a relevant protected characteristic or if they are perceived to have it. This provision only relates to direct discrimination and harassment and excludes marriage and civil partnership.

For example, a person suffers unlawful harassment if they are harassed because of their spouse's religious beliefs, or because they are wrongly perceived to be gay.

Occupational requirements

The two types of exemption to direct discrimination, "genuine occupational requirement" and a "genuine occupational qualification" (GOQ), will be harmonised and referred to as "occupational requirement" only under the Act. The need for the requirement to be "genuine" has been dropped. If it isn't genuine, the occupational requirement won't meet the objective justification test, which is now applied to it. This test requires it to be "a proportionate means of achieving legitimate aim".

There are two impacts for employers of a change in this definition. First, employers currently relying on GOQs will have to revise their recruitment information to ensure compliance under the new provision, in particular whether it can meet the objective justification test. Second, exemptions for organised religions will remain and will continue to be permitted to discriminate because of sex, marital status, gender reassignment and sexual orientation in certain circumstances.

Other defences

Certain discrete defences under the current legislation have survived:

  • It will remain lawful to discriminate on grounds of age in relation to benefits based on length of service, compulsory retirement, redundancy pay, national minimum wage and life assurance
  • There is a new discrete provision making it lawful for employers to provide childcare facilities limited to employers with children of a particular age group
  • Positive action is permissible in relation to training and encouragement. Please see our Briefing Note for Positive Action for further details.

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.

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