1 October 2010 saw the introduction of this new Act which simplified, strengthened and consolidated existing legislation on discrimination and equality. The new Act is a simple and modern framework which brings together disability, sex, race and other grounds into one document and also establishes new laws. The provisions of the Equality Act are being introduced at different times with the main ones already having come into force on 1 October 2010.
The Equality Act defines nine ‘protected characteristics’. Protected characteristics are the grounds upon which discrimination is unlawful. They are:
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Religion and belief
- Sexual orientation
This new act protects individuals on these grounds. Many of these definitions/ characteristics have been carried over from previous laws but some notable changes have been made in the following areas:
- Disability – Previously protection against disability discrimination was set out in the Disability Discrimination Act 1995. This has now been repealed and is now defined in section 6 of the Equality Act 2010 as a “physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities”.
- Gender reassignment – Previously, the Act required a person to be under medical supervision to be protected. The new Act provides protection for transsexual people, someone who is “proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex”.
The Act defines discrimination by reference to direct, associate, perceptive and indirect discrimination, harassment, third party harassment and victimisation;
- Direct discrimination – this occurs when someone is treated less favourably than another person because of a protected characteristic they have or are thought to have
- Associative discrimination – this refers to direct discrimination against someone because they associate with someone with a protected characteristic
- Perceptive discrimination – this is direct discrimination against a person because others think they have a particular protected characteristic.
- Indirect discrimination – this refers to when a company policy or practice which applies to everyone, particularly disadvantages a person with a protected characteristic
- Harassment – this is unwanted conduct related to a particular protected characteristic which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.
- Third party harassment – this refers to harassment by people not employed by the company, for example contractors, suppliers or customers
- Victimisation – this occurs when an employee is treated badly because they have made a complaint or raised a grievance under the Equality Act.
Key changes affecting employment law
Pre-employment health questionnaires
The Equality Act includes a new provision which makes it unlawful, with some exceptions, for employers to ask about an applicant’s health status before offering them work. Health questions will only be permitted where the questions are necessary to:
- Determine whether reasonable adjustments need to be made at the interview stage to assist the applicant
- Decide whether the applicant is fully able to carry out a function that is an essential part of the job
If an exemption applies, then employers will be able to ask pre-employment health questions. If one does not apply then health questions can still be asked but only after an offer of employment has been made.
Under the new act it is unlawful to prevent employees from discussing differences in pay that are related to protected characteristics. Any terms and conditions in contracts of employment that require pay secrecy will be unenforceable.
Under the new Act, the powers conferred to tribunals have been extended. Where a tribunal finds that an employer has discriminated against an employee, that tribunal can make recommendations that impact on the wider workforce not just the claimant.
Equality Act provisions to come into force in April 2011
Positive action in recruitment and promotion
The government has now published guidance on how the Equality Act’s positive action provisions for recruitment and promotion, which are coming into force on 6 April, 2011 will work. The Act allows employers to take ‘positive action’ if they think that an applicant for a job has a protected characteristic and suffers a disadvantage connected to that characteristic. In this situation, an employer would be entitled to favour the candidate from that disadvantaged background. It allows employers the choice, when faced with two candidates that are as equally qualified as each other to choose the applicant they feel is disadvantaged.
Public sector Equality Duty
This comes into effect on 6 April 2011. It is imposed on public bodies and others carrying out public functions. The Equality duty consists of a ‘general equality duty’ which has three main aims:
- To eliminate discrimination, harassment and victimisation
- To advance equality of opportunity
- To foster good relations
There are also ‘specific duties’ which are set out in secondary legislation and these are designed to help public bodies meet the general duty.