UK: The Equality Act 2010 - What will this mean for employers?

Last Updated: 10 May 2010
Article by Gagandeep Prasad


The Equality Act 2010, which has arisen out numerous reviews starting in 2005, finally received Royal Assent on 8 April 2010 and the majority of its provisions will come into force in October 2010. The Act seeks to consolidate existing discrimination legislation in non-technical "plain English" to make it more accessible and easier to understand. As well as harmonising existing legislation into a single Act it introduces several new rights and remedies. All earlier pieces of legislation will be repealed.

In addition, the Equality and Human Rights Commission has published three draft statutory codes of practice which will replace the existing codes of practice and which are also expected to come into force at the same time as the Act.

What are the key points?

The Act harmonises the definitions of discrimination and harassment previously found across the various strands. It sets out the "protected characteristics" which are age, disability, gender re-assignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. There are no new categories although the power to amend the definition of "race" to include "caste" in the future has been included should it be deemed necessary. The familiar key concepts of current discrimination legislation are retained and the definitions unified across all the strands i.e. direct discrimination, indirect discrimination, harassment and victimisation. This means, for example, that there is now provision for indirect disability discrimination.

In addition, the Act seeks to deal with current inconsistencies across the different strands and issues which have arisen as a result of case law. For example, the provisions covering protection against third-party harassment have been extended from sex discrimination to all the strands. The scope of direct discrimination has been broadened to include both "associative" and "perceptive" discrimination following Coleman v Attridge Law where the EAT held that the Disability Discrimination Act should be read as covering discrimination on the grounds of association with a disabled person. The Act has also addressed the unwanted consequences of the House of Lords decision in London Borough of Lewisham v Malcolm which made it harder for a disabled person to bring a disability-related discrimination claim and introduced a new provision covering "discrimination arising from disability" which is essentially a revamp of the previous provisions.

What is new?

The Act introduces several new provisions. These include:-

  • The concept of dual discrimination whereby an individual can bring a claim which combines two (but not more) of the protected characteristics. This is to cover the situation where there may not be enough evidence to prove discrimination on one characteristic alone. It applies to direct discrimination only, not to indirect discrimination, victimisation or harassment.
  • A ban pre-employment health enquiries unless they are made for prescribed reasons, for example, where it is intrinsically necessary for the role. This provision was introduced following concerns about the fact that many disabled people, particularly those with mental health issues, are put off applying for jobs because of the need to complete pre-employment health questionnaires.
  • In respect of "pay secrecy" or "gagging" clauses the Act renders unenforceable a contractual term which restricts an employee from being involved in a discussion about whether there is discrimination in pay on grounds of a protected characteristic e.g. sex. This is part of the package of measures designed to reduce the pay gap between men and women.
  • Widening the scope for employment tribunals to make recommendations that will benefit the wider workforce and help prevent discrimination occurring in the future.
  • Expanding the concept of positive action to allow employers to recruit or promote someone from an under-represented group where they have a choice between two or more equally qualified candidates. This is likely to cause controversy in terms of how the question of whether each candidate is equally qualified will be judged.
  • The power to require employers to publish information about gender pay if insufficient progress in reporting has been made on a voluntary basis for employers with 250 or more employees.
  • A new duty on certain public authorities, such as Government ministers, local authorities and NHS bodies, to consider socio-economic disadvantages when taking strategic decisions about how to exercise their function.

What is the proposed timetable?

The majority of the provisions come into force on 1 October 2010. However, the provisions on dual discrimination and some of the specific public sector equality duties are intended to come into force in April 2011. Age discrimination provisions in respect of the provision of goods and services is due to come into force in 2012. The power to require employers to publish information on gender pay will not come into effect before April 2013 and depends on the progress on reporting made by that time. However, public bodies with more than 150 employees will be required to report on gender pay as whether as other equality data by April 2011.

The EHRC statutory codes of practice are due to come into force in October 2010 at the same time as the Act.

What do employers need to do?

Employers should familiarise themselves with the relevant employment aspects of Act and in particular the new provisions referred to above. There are also extensive explanatory notes to the Act and the draft codes of practice contain useful examples and explanations. Employers should consider reviewing their Equal Opportunities policies and ensure they clearly cover "associative" and "perceptive" discrimination, ensure that no pre-employment questionnaires ask health questions unless covered by the exceptions and give appropriate training to staff.


Although the General Election is looming, as the Act has had broad cross-party support during its progress through Parliament, whichever party forms the next government, it should to a large extent remain in its current form (although the Conservatives have indicated they will review some of the provisions if they win). Only time will tell whether it will achieve its original aim.

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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Gagandeep Prasad
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