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THE EQUALITY ACT 2010
(In Force: 1st October 2010)

Before Employers up and down the land clutch at their hair and scream at an eye –watering pitch ‘please God no more legislation’ be assured that this new Act of Parliament is not designed to trip you up, cost you money or over burden your working day. You have all lived and worked with a plethora of anti –discrimination laws and have been doing so since in the Equal Pay Act was introduced in the early 1970’s.

In many respects the Equality Act is helpful and friendly, it brings together nine separate pieces of legislation into one single Act. It aims to simplify the current law and clarify, in a statutory form, concepts that have been evolving via case law in the Tribunals and Courts for some time.

Protected Characteristics

The Equality Act covers the same groups as previously protected although in respect of some groups has increased its application making it easier for employees to gain protection from the Act:

  1. age unchanged;
  2. disability (the test to establish whether or not a person is disabled for the purposes of the Act has been widened and it is thus easier for a person to now show they are disabled);
  3. gender reassignment (there is no longer a requirement for a person to be under medical supervision in respect of associated treatment; it is enough that the person has made the lifestyle decision to make a permanent change without undergoing treatment);
  4. race, religion or belief (to qualify a religion must have a clear structure and belief system and a belief must be a weighty and substantial aspect of human life);
  5. sex unchanged;
  6. sexual orientation unchanged;
  7. marriage and civil partnership unchanged ; and
  8. pregnancy and maternity unchanged.

These are now called ‘Protected Characteristics’.

Unlawful Discrimination

There are now seven types of discrimination. Three of which have now been categorised as new types of discrimination (indicated in bold) and aside from Direct Discrimination (which remains unchanged) all other types have been expanded upon. The seven types of discrimination are:

  1. Direct Discrimination (when someone is treated less favourably than another person because of a protected characteristic they have or are thought to have or because they associate with someone who has a protected characteristic);
  2. Associative Discrimination (see below);
  3. Discrimination by Perception (see below);
  4. Indirect Discrimination (can occur when the employer has a condition, rule, policy or practice that applies to everyone but particularly disadvantages people who share a protected characteristic. It can be justified if the employer can show they acted reasonably and that it was a proportionate means of achieving a legitimate aim);
  5. Harassment (is unwanted conduct relating to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual);
  6. Harassment by a Third Party (see below); and
  7. Victimization (occurs when an employee is treated badly because they have made or supported a complaint or raised a grievance under the Equality Act; or because they are suspected of doing so).

The principles behind the original four types of discrimination (Direct, Indirect, Harassment and Victimisation) have remained unchanged and are covered in detail on the Employmentor website. The newer three types are also covered in detail on the website but to give you a flavour of their scope they can be summarised as follows:

Associative Discrimination: - Direct Discrimination against someone because they associate with another person who possesses a Protected Characteristic.

Example – Sarah works in IT, she has been promised promotion. Before she is promoted her husband is diagnosed with Multiple Sclerosis. Sarah’s boss withdraws her promotion as he assumes that she will not be able to concentrate on her new job due to her caring responsibilities to her husband. This may be discrimination against Sarah because of her ASSOCIATION with a disabled person.

The concept of associative discrimination, particularly in relation to disability discrimination, has been in force for a year or two now as a result of developing case law, so really this is nothing new.  But we have clarity that, as expected, it applies as much to all other Protected Characteristics (aside from marriage and civil partnership or pregnancy and maternity) as it does to disability.

Discrimination by Perception:- Direct Discrimination against someone because others think they possess a particular Protected Characteristic. It even applies if the person does not actually possess that characteristic.

Example – Peter is often subjected to jokes and insinuations that he is gay, which is not true. It is unlawful for Peter to be discriminated against because of a PERCEPTION

Again, this really is nothing new; successful discrimination claims have been able to rely on perception for some time.

Harassment:  Whilst not an entirely new type of discrimination, it has been subject to significant expansion as a result of the Equality Act and therefore worth touching on in this update. Employees can now complain of behaviour they find offensive even if it is not directed at them relating to all Protected Characteristics aside from marriage and civil partnerships or pregnancy and maternity related reasons.  Employees will now also be protected from harassment because of perception n and association.

Example - Jack who is partially sighted, is continually being teased and ridiculed by his line manager, Amanda, for knocking into things around the office. Jack does not complain, but his colleague Simon does complain as he finds Amanda’s behaviour offensive.  

Harassment by a Third Party:- Employers are now potentially liable for harassment of their staff by people they do not employ.

Example – Fiona works as a junior doctor, she mentions to her boss Patrick  that a particular patient keeps making lewd comments within her hearing which are making her uncomfortable. Patrick refuses to intervene and tells Fiona that she has to accept that some patients are just like that and that she must toughen up. If the lewd comments continue and if the employer maintains his refusal to intervene then Fiona may have a case against her employer for HARASSMENT BY A THIRD PARTY.

The potential to be liable for third party harassment is again a natural development in view of the way case law has been progressing; the concept of a ‘culture’ that an employer permits to exist amounting to actionable harassment has existed for some while.  The Act simply makes the point absolutely clear; an employer can not stand by and do nothing. However, an employer will only be liable when harassment has occurred on at least two previous occasions that the employer is actually aware has taken place and has failed to take any reasonable steps to prevent it happening again.

Other Changes Introduced by the Equality Act 2010

Pre- employment health –related checks – Pre-employment enquiries about health –related matters are thought to be one of the main barriers to disabled people reaching the interview stage. The Act provides that an employer should not ask about the applicant’s health (including any disability) before offering him or her work.  Before making an offer of employment, the Act states that an employer is only permitted to ask health-related questions to help them decide whether any reasonable adjustments are needed to assist the candidate in the selection/recruitment process. Detailed or exploratory health related questions may be asked at the pre-offer stage if they relate to the candidate’s ability to carry out a function which is intrinsic to the role for which the employer is trying to recruit. For example if the role involves a lot of heavy manual handling, an employer would be able to ask a candidate with mobility problems whether they could in fact manage the handling of heavy goods.

Should an employer ask prohibited questions the candidate will be entitled to complain to the Equality and Human Rights Commission (“the EHRC”), who has been given the power to enforce this provision and, controversially, NOT the Employment Tribunal. Some employers will undoubtedly take the decision to either disregard the Act’s prohibition or at least take a slightly pragmatic interpretation of it, until such time as it becomes clearer what sanctions, if any, the EHRC can impose.

In promoting best practice, employers would now remove any questions from their application forms that relate to health save for (1) questions that relate to the recruitment/interviewing process itself or (2) that are job specific. More detailed questions about health would then form part of a robust job offer process – much as an employer might offer employment conditional upon receipt of satisfactory references, we will be advising employers to also make offers conditional on satisfactory health questionnaires being returned.  Of course, problems are likely to arise if the questionnaire reveals a disability, but in the vast majority of cases employers should still be able to withdraw from a job offer if they discover, for example, that the prospective employee had a bad attendance record in their last as a result of frequent and minor ailments. 

Our template Employmentor Application Form has been amended accordingly to ensure compliance with the Act, and our standard Offer Letter provides for the conditional offer upon receipt of a satisfactory health questionnaire.  Depending on the nature of your employment, or specific roles that you have, you should take advice from us if you do wish to ask more detailed health or medical related questions as part of the application process, so that we can advise you of your options and the risks you might face. In any event, a new general Healthcare Questionnaire has been added to the Recruitment Chapter to be sent out alongside the Offer Letter.

Extension of Tribunal Powers – The Employment Tribunal now has the power to make recommendations that an organization takes steps to eliminate or reduce the effect of discrimination on other employees, not just the complaining employee. This applies even if the complaining employee has left the organisation.

Many of you will have anti-harassment policies, or equality polices, but simply being able to point to such policies may not enough. A prudent employer may wish to train key staff in these areas. We would be happy to assist in any training needs you may have.

Pay Secrecy - The Act makes it unlawful for an employer to prevent or restrict employees from having discussions to establish if pay differences exist within the organisation which are connected to Protected Characteristics. It also makes terms of the contract of employment that require pay secrecy unenforceable.  

In Summary

There is no escaping the fact that the new Equality Act 2010 is a ‘high impact’ piece of legislation. On the 1st October 2010 mention of it will undoubtedly be made on all media. It will be reported that it is going to have a huge impact on everyone in England and Wales employers, employees, service providers, customers, clients – EVERYONE.  However, it is not to be feared and we are confident that the legislation is in most respects, in reality, little more than telling us all what we already knew and clarifying the best practice that we were already following. The Equal Opportunities Policy on the website has been updated accordingly.

What do you need to do?

As a minimum we would suggest you ensure you do the following:-

  • Update your Equal Opportunities Policy
  • If you use them, review your standard Application Form and job Offer Letter
  • Review any existing Health Questionnaire and amend / introduce such a Questionnaire into your recruitment process. . 

The Employment Team at Leathes Prior is on hand to guide you through all aspects of the Equality Act 2010 and for larger employers we are offering bespoke training sessions.  On a more informal basis we are happy to discuss without obligation any requirements you may have, or to audit your current policies and documentation for compliance (if you are not using documentation based on our templates).