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A five minute overview of the Equality Act 2010 - what you need to know

Posted on 15th September 2010
New legislation

On 1st October 2010 the majority of the provisions of the Equality Act 2010 will come into force.

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Simon Quantrill Simon
Managing Partner Telephone: 01473 688100

It gives individuals greater protection from unfair discrimination. It makes it easier for employers to understand their responsibilities.

The Act is designed to harmonise, strengthen and simplify discrimination law. It gives individuals greater protection from unfair discrimination. It makes it easier for employers to understand their responsibilities.

The Act is important because it brings together and re-states the existing discrimination legislation and seeks to adopt a single approach, for example by introducing common definitions. The important changes to discrimination law include:

  • Outlawing health questions asked before an offer of employment is made unless they are made for prescribed reasons.
  • Limiting the enforceability of contractual "pay secrecy" clauses.
  • Strengthening enforcement by enabling tribunals to make recommendations that benefit the wider workforce, not just the claimant.
  • Introducing a new concept of "discrimination arising from disability".
  • General provisions allowing voluntary positive action to allow employers to recruit or promote someone from an under-represented group, but only where they have a choice between two or more equally-suitable candidates.
  • Making employers explicitly liable, in some circumstances, for harassment by third parties in the workplace.
From 1st October all the old discrimination legislation will be repealed including the Equal Pay Act 1970, the Sex Discrimination Act 1975, the Race Discrimination Act 1976 and the Disability Discrimination Act 1995.

Protected characteristics

The Act covers discrimination because of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. These categories are now given a short hand expression in the Act of "protected characteristics".

A key purpose of the Act is to create a single approach to discrimination against people with different protected characteristics. The Act also seeks to correct case law mistakes and previous uncertainties. However, there are important differences in the way that discrimination is defined, particularly for disability. In fact the provisions relating to disability discrimination have been criticised for being complex and difficult to apply to real situations. In practice an employer's obligation to make reasonable adjustments will remain the most important remedy for disabled employees.

Types of discrimination

The Act clarifies and expands the types of discrimination. There is direct, associative, perceptive and indirect discrimination plus harassment and victimisation.

Direct discrimination arises when someone is treated less favourably than another person because of a protected characteristic. There is no change with this definition.

Associate discrimination is a new definition and is an example of direct discrimination against someone because they associate with another person who possesses a protected characteristic. For example, Wendy works as a copy writer and works full-time. However, her son is disabled and Wendy asks if her hours of work can be reduced so that Wendy can spend more time looking after him. Wendy's request is refused. This may be disability discrimination by association against Wendy because of her association with a disabled person.

Discrimination by perception is direct discrimination against someone because the other person thinks he or she possesses a particular protected characteristic. Discrimination by perception already applies to age, race, religion or belief and sexual orientation but has been extended to cover disability, gender reassignment and sex. For example, Robert was denied an expected promotion because his manager thought he was not fit enough after a major operation. Robert may have been discriminated against because of a perception that he was disabled, which is a protected characteristic.

Indirect discrimination can arise when the employer has a rule or policy that applies to everyone but disadvantages an employee with a particular protected characteristic. It already applies to age, race, religion or belief, sex, sexual orientation and marriage and civil partnership. It is now extended to cover disability and gender reassignment. Indirect discrimination can be justified if the employer can show the rule or policy is "a proportionate means of achieving a legitimate aim". To be proportionate the employer needs to show it has acted reasonably, including looking at "less discriminatory" alternatives.

In relation to harassment there are two key changes: First, employees can now complain of behaviour they find offensive even if it is not directed at them. For example, Mark is gay and works in an open plan office and is being bullied by his line manager about being homosexual. Mark decides to make a claim of harassment. Margaret who works in the same office also makes a harassment claim (even though she is not gay) because the line manager's behaviour has created an offensive environment for her. Secondly, the concept of harassment by a third party has been extended beyond sex to cover all protected characteristics except for marriage and civil partnership, pregnancy and maternity. Under the Act employers are potentially liable for harassment of their staff by people they don't employ, for example, customers or clients. Employers will only be liable when harassment has occurred on at least two previous occasions, the employer was aware that it has taken place, and the employer has not taken reasonable steps to prevent it from happening again.

Victimisation This occurs when an employee is treated badly because they have made or supported a complaint or raised a grievance relating to discrimination or because they are suspected of doing so. Protection is lost if the employee has made a malicious or untrue complaint.

Employment Statutory Code of Practice

To help employers and employees understand the Act a draft Code of Practice has been published. It has been written to explain and give examples about discrimination rights and obligations. It can be found here.

Additional guidance from the Equality and Human Rights Commission is available here.

Does the Equality Act change the default retirement age?

No. The Act does not change the default retirement age of 65. The Act contains the same statutory retirement rules as the existing Age regulations. In the Budget the Government announced that it will consult on how it will quickly phase out the Default Retirement Age from April 2011.

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