As you will be aware from previous Equality and Diversity updates, the Equality Act 2010 is a bold piece of legislation that will have a profound effect on anti-discrimination law as we know it.
For the first time in history we will have a single Act covering all forms of discrimination. It will introduce significant changes with the aim of promoting equality including the creation of new rights for individuals and by increasing the enforcement powers of Employment Tribunals.
The purpose of the Act is to simplify the law and make it more accessible.
Implementation
The Act will replace all current anti-discrimination law (such as the Equal Pay Act 1970 and Sex Discrimination Act 1975) with effect from 1 October 2010, save for minor exceptions. It will apply to all acts of discrimination committed on or after this date and all corresponding Employment Tribunal proceedings must be litigated under the Act.
Key Changes
The following is a summary of some of the Act's key provisions that will come into force on 1 October 2010:-
- Protected Characteristics - The Act will consolidate each of the nine characteristics that attract protection under existing anti-discrimination laws, namely i) age; ii) disability; iii) gender reassignment; iv) marriage and civil partnership; v) pregnancy and maternity; vi) race; vii) religion or belief; viii) sex; and ix) sexual orientation, and present them under the united definition of "protected characteristics". Of these, age, disability and gender reassignment have been given new definitions under the Act.
- Pre-Employment Health Questionnaires - The Act will prohibit employers from asking questions about a job candidate's health prior to making a job offer, other than in limited circumstances. Should an employer breach these provisions, enforcement action can be taken against the employer by the Equality and Human Rights Commission. In addition, acting in reliance upon information given in response to a health questionnaire could, in certain circumstances, give rise to complaints of disability discrimination.
- New Rights for Disabled Workers (1) - Protection for disabled workers will, for the first time, be extended to cover "indirect" discrimination. A new right for workers not to suffer "discrimination arising from a disability" will also be introduced.
- New Rights for Disabled Workers (2) - The obligation to provide reasonable adjustments for disabled workers has been expressly extended to cover the provision of 'auxiliary aids'. This means that the employer may need to provide extra equipment, aids or additional services to disabled employees to make it easier for them to do their job or participate in the recruitment process. The Act makes it clear that the costs of providing such equipment or services cannot be passed on to the employee.
- Expanded Definition "Direct" Discrimination - Amongst other changes, the Act now allows for direct discrimination claims based on both "associative" and "perceptive" discrimination. This means that it will no longer be necessary for the victim of discrimination to possess the protected characteristic in question.
- Expanded Definition of "Harassment" (1) - Similarly, the Act has expanded the definition of harassment to also cover claims based on "associative" and "perceptive" discrimination. As with the new definition of direct discrimination, there will be no need for the victim to possess the particular protected characteristic in question, and protection will be extended to cover those who witness potential acts of harassment, even though the treatment may not be directed at them.
- Expanded Definition of "Harassment" (2) - Anti-harassment protection for workers will be extended further, as the "three strikes" test, currently applicable to claims of sex-based harassment (only) will be applied to all protected characteristics covered by the new harassment provisions. In broad terms, the test (which has attracted heavy criticism) is that an employer can be held liable where an employee is harassed by an external party (such as a customer, contractor or supplier) on at least two earlier occasions, and the employer has failed to take reasonably practicable steps to stop it.
- New Grounds for Claiming Sex Discrimination - Unlike other areas of anti-discrimination law, the use of "hypothetical comparators" is not permitted under the Equal Pay Act 1970. Instead, a woman must be able to rely upon the existence of an actual male comparator, carrying out equal work, to bring an equal pay claim. The Act will introduce the right to bring a sex discrimination complaint where there is evidence of direct sex discrimination in relation to contractual pay issues, but no male comparator upon which to base an equal pay complaint.
- Secrecy Clauses - Clauses in employment contracts which seek to prevent employees from discussing their pay or bonus levels will be unenforceable where the employee is seeking to find out whether there is a connection between their pay and having (or not having) a particular protected characteristic. Employees will have the right not to be victimised for taking part in relevant discussions about pay.
Not Coming into Force
The provisions dealing with combined discrimination, positive action (in recruitment and promotion) and gender pay reporting will not be brought into force on 1 October 2010. It is currently unclear when the Government plans to introduce these provisions, if at all.
We will provide you with a further update as soon as we have any news.
How Does This Affect You?
The Act delivers a very clear message to employers that they will need to look carefully at their workplace practices and take greater steps to achieve equality.
We recommend that the following steps are taken, as a minimum:-
- Update Policies and Practices - It is essential that employers review and update their workplace policies and practices to ensure that they are in compliance with the Act and do not operate in a way that could give rise to discrimination claims. For example, anti-bullying and harassment policies need to be updated to deal with the expanded definition of harassment and the new law governing acts of harassment committed by third-parties. If no Equality Act compliant policies promoting equality of opportunity are in place, we recommend that they are implemented without delay.
- Pre-Employment Health Questionnaires - Employers will need to closely examine their own recruitment practices for compliance with the Act and the continued use of pre-employment health questionnaires needs to be carefully considered.
- Keep Up to Date With the Law - Employers need to become aware of how the new rights for workers introduced by the Act will impact upon them in practice. Understanding the law now will allow employers to take precautionary measures to minimise the risk of costly discrimination claims arising under the Act.
- Training - Delivering equal opportunities training to staff is likely to reduce the risk of discrimination claims arising. The benefits of doing so have also been recognised in case law. Existing training programmes will need to be updated to deal with the sweeping changes introduced by the Act. If training is not currently being provided, this should be considered.
We will continue to provide you with updates on key equal opportunities matters and please feel free to get in contact with us should you have any queries.
About the Equality and Diversity Team
Recognising the importance of this area of the law on commercial practice, Bird & Bird has a dedicated Equality and Diversity team within the Employment group.
We advise clients on all forms of equal opportunities and discrimination matters arising at each stage of the employment relationship and have significant experience and expertise in dealing with all forms of equal opportunities litigation in the courts.
We are able to supply up-to-date policies dealing with equal opportunities matters designed for rapid implementation into the workplace. We can also carry out useful "Equality and Diversity" audits of current practices and policies in operation, with a view to ensuring compliance with the Equality Act 2010. Please feel free to get in touch if any assistance is required.
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.
