After many years of discussion and review, the Equality Act 2010 (‘the Act’) received Royal Assent on 8 April 2010.
The Act (and its accompanying 28 schedules) has been designed to consolidate existing anti-discrimination legislation, which has been implemented piecemeal since the 1970s, and is currently contained in various acts, statutory instruments and codes of practice. Some commentators welcome this harmonisation, whilst others see it as weakening the current protection afforded by the individual legislative provisions.
This article examines the key changes brought about by the Act. Given the very wide scope of what it has set out to do, this article is not a comprehensive review of all the changes, but summarises the major ones and updates the article written on the Equality Bill by Michael Rubenstein a year ago in The People Bulletin, 2 July 2009.
It is important for employers to be aware that the majority of the Act’s provisions are due to come into force in October 2010 although some specific public sector equality duties are not scheduled to come into force until April 2011. Therefore, in practice, employers, managers and human resource personnel should continue to follow the current anti-discrimination provisions until then.
Major changes
When the Act is implemented one of its noticeable changes is the new label to the areas of discrimination, which will be collectively known as ‘protected characteristics’ (s.4 of the Act). The protected characteristics will remain the same; for example age, disability, race, religion or belief, sex, sexual orientation, marriage and civil partnership, gender reassignment and, pregnancy and maternity.
Direct discrimination has been extended to include discrimination by association and perception.
Current legislation protects individuals where discrimination ‘is on the grounds of’– meaning that the discriminatory feature must belong to the complainant of the discriminatory act. However, under the new Act, the words ‘on the grounds of’ have been substituted for ‘because of’. This will allow, for example, an individual caring for its disabled child not to be treated less favourably.
The broadened definition of discrimination also allows for discrimination to occur as a result of an individual’s perceived characteristics.
The protected characteristic of marriage or civil partnership is an exception to the new provision of association and perception in that the complainant must have this particular characteristic (s. 13(4) of the Act).
Under the Act individuals can bring dual discrimination claims in relation to two protected characteristics (a combination of seven of the nine protected characteristics listed above; marriage and civil partnership, and pregnancy and maternity are excluded). Therefore, under the Act a woman can bring a claim that she is female and a Muslim. This new provision only applies to claims of direct discrimination; claims for indirect discrimination, harassment and victimisation are not covered.
The offence of instructing and causing discrimination has also been harmonised under the Act and extended to cover all protected characteristics – currently only certain protected characteristics are covered.
An important new prohibition under the Act is that employers cannot ask about a candidate’s health before offering them work. This provision does not prevent an employer from asking questions relating to:
- monitoring diversity in the range of applications;
- whether a candidate has a disability and that disability is an occupational requirement;
- establishing if any reasonable adjustments are required or to comply with a requirement to undergo an assessment for the job;
- establishing whether a candidate will be able to carry out a function that is intrinsic to the work concerned; and
- taking positive action.
An interesting addition to the new Act is that Employment Tribunals can make recommendations to reduce the impact of any well-founded discrimination in the proceedings to ‘any other person’, not just the individual who brought the claim (s.124(3). The Act does not define ‘any other person’ in this context but presumably it is intended to cover the wider workforce from where the discrimination occurred.
Other key changes are:
- Detriment arising from disability – replaces ‘disability related discrimination’.
- Protection from harassment – extended to cover colour and nationality but not to marriage or civil partnership.
- Harassment by association or perception is covered in the Act.
- Third party harassment – extended to all protected characteristics (except for marriage and civil partnerships, and pregnancy and maternity).
Practical implications for employers
Whilst employment practitioners and advisers wait with bated breath to see how the Act matures, employers will have to be proactive in ensuring that they tackle the changes imposed by the Act.
Many employers have existing policies relating to equality and forms of discrimination. Due to the harmonisation of existing discrimination laws and the changes imposed by the Equality Act 2010, employers will have to ensure that their current policies are compliant with the new legislation by the time it comes into force.
The Equality and Human Rights Commission[1] provides helpful guidance for employers on the impact of the Act and how they should evaluate their position. In cases where an employer already has an equality policy in force, it will be necessary to assess whether it is continuing to comply with the new legislation. If the policy does not adhere to the new provisions, it will be necessary for employers to address the issues and implement changes.
Employers should ensure that its workforce is aware of the changes imposed by the Act in order to make sure that it does not inadvertently breach the law. The Equality and Human Rights Commission guidance states that employers should promote their policy to all members of staff. Employers may choose to promote their policy in a number of ways including posts on websites, blogs, staff meetings, newsletters and including the terms in employees contracts of employment and staff handbooks.
It is important for employers to provide their staff with appropriate training about the equality policy and the impact of the Act. As an employer you may want to implement the training through a number of avenues which may include employee inductions, staff briefings or specifically designed training courses.
Outlook for implementation
What remains to be seen is how much of the Act the new coalition government will implement. Labour, Liberal Democrats and Conservatives all supported the Act when it was passed through Parliament (albeit the latter Party advocated some changes).
Nevertheless, The Coalition – the programme for new government[2] heralded by Mr Cameron and Mr Clegg, as ‘a programme for partnership government’ makes no specific mention of the Equality Act, despite the document stating that;
‘the government believes that there are many barriers to social mobility and equal opportunities in Britain today, with too many children held back because of their social background, and too many people of all ages held back because of their gender, race, religion or sexuality. We need concerted government action to tear down these barriers and help to build a fairer society.’
There are no signs that the new government intends to change or rewrite the Act, but watch this space…
[1] Equality and Human Rights Commission: “What the Equality Act 2010 means for you as an employer” (non-statutory guidance based on the equality bill as printed on 3 December 2009).
[2] www.cabinetoffice.gov.uk/media/409088/pfg_coalition.pdf