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The Equality Act 2010: Your questions answered
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Questions (click the question to go to the answer)
What is the Equality Act 2010?
The majority of the provisions contained in the Equality Act 2010 (“the Act”)
will become law on 1 October 2010. The Act is the single largest piece
of discrimination legislation. It draws together all the discrimination legislation
which has been introduced on a piecemeal basis since the 1970’s. Its overall aim
is to simplify, replace and harmonise the existing legislation. Your obligations
as an employer remain largely the same.
What does the Act cover?
The Act protects the same groups that were protected by the existing legislation.
These have now been given a new name and will become known as the ‘Protected
Characteristics’ (“PC”).
The following are PC’s:
• Age
• Disability
• Gender Reassignment
• Marriage and Civil Partnership
• Pregnancy and Maternity
• Race
• Religion or Belief
• Sex
• Sexual Orientation
Essentially, if an individual holds a PC 1, they will benefit from the protection
of the Act. The PC’s are the grounds on which discrimination will be deemed unlawful.
1 Some individuals may hold more than one characteristic.
Are there any changes to the definitions
of the PC’s?
There are a few changes to some of the definitions:
-
Disability – under the Act a person is disabled if they have a physical or mental
impairment which has a substantial and long term adverse effect on their
ability to carry out normal day to day activities 2 . There is no longer a definition
for ‘normal day to day activities.’ Cancer, HIV infection and multiple sclerosis
are still deemed disabilities under the Act, meaning they benefit from
automatic protection.
-
Gender Reassignment – The Act provides protection for transsexuals.
A transsexual person is someone who proposes to, starts or has completed
a process to change his or her gender 3 . The Act no longer requires a person
to be under medical supervision in order to gain protection.
-
Race – It is worth noting that the definition of race is now non-exhaustive so now
it “includes colour, nationality, ethnic or national origin”. This suggests it could
also ‘include’ other factors.
The remaining definitions for the PC’s remain unchanged.
2 See section 6 and Schedule 1 of the Act.
3 See section 7 of the Act.
What is discrimination under the Act?
Discrimination can only take place in connection with the PC’s. There are various
types of discrimination. In fact a particular event could give rise to more than one
type of discrimination. There are also a few new changes to some of the types
of discrimination found under the Act. Set out below is a list of the main types
of discrimination found under the Act.
The main types of discrimination are:
-
Direct Discrimination – this happens where someone is treated less favourably
than another because they have a PC or they are thought (perceived) to have
a PC. It can also happen because they are associated with someone who has
a PC. This type of discrimination applies to all PC’s.
Example: An employer uses the excuse of persistent lateness to dismiss an Asian employee
because of their race; a person of a different race who has the same pattern
of lateness is not dismissed.
-
Associative Discrimination – currently applies to race, religion or belief or sexual
orientation. It will now cover age, disability, gender reassignment and sex. This
is direct discrimination and happens where someone is treated less favourably
because they associate with another person who possesses a PC.
Example: An employer selects a person for redundancy because they have a disabled child
and the employer believes they may need time off to care for their child.
-
Perceived discrimination – currently applies to age, race, religion or belief and
sexual orientation. It will now cover disability, gender reassignment and sex.
This is direct discrimination and happens where someone is treated less
favourably because they are perceived to have a particular PC. So it still
applies even if that person does not have the PC.
Example: An employer makes a member of staff redundant because they incorrectly think
they have a disability. This is almost certainly direct discrimination because
of disability based on perception.
-
Indirect discrimination – currently applies to age, race, religion or belief, sex,
sexual orientation and marriage and civil partnership. It will now cover disability
and gender reassignment. Indirect discrimination happens where you have
a condition, rule, policy or practice that applies equally to everyone, but has
the effect of being disadvantageous to a particular group who share a PC.
Example: An employer applies a policy requiring all employees to be available to work
over a 24 hour period. This new policy impacts disproportionately on the female
employees (who predominately have childcare responsibilities). Unless the
employer can show that what they have done, or intend to do, is objectively
justified, this will be indirect discrimination.
-
Harassment – this is unwanted conducted related to a relevant PC, 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.
This applies to all the PC’s. The new Act also provides that employees can
complain of behaviour they find offensive, humiliating etc even if not directed
to them and they need not have the relevant PC themselves. Likewise, employees
will now also be protected from harassment because of a perception
or association.
Example: A manager propositions one of his team members, she rejects his advances. She
is later demoted for no apparent reason. This is likely to be harassment.
-
Victimisation – this happens when an employee is treated less favourably
because they have made or supported a complaint or raised a grievance under the
Act, or they are expected to do so 4. This form of discrimination applies to all PC’s.
Example: An employee complains of discrimination and a colleague goes to their Employment
Tribunal to give them support. The colleague is subsequently selected for
redundancy because the employer resents their support for the original employee.
This is almost certainly victimisation.
4 They will not be protected if they have maliciously made or supported an untrue complaint.
Other key changes under the Act
Will pre employment questionnaires
be banned?
Whilst, the new Act is not quite a blanket ban on pre employment health enquiries,
it does limit the circumstances when you can ask health related questions before
you have offered the candidate a job. The general rule will be that an employer
must not ask about a candidate’s health before offering them the job.
You can however ask such questions where it is necessary for the purpose of:
-
establishing whether the candidate will be able comply with a requirement
to undergo an assessment (such as an interview or test);
-
establishing whether the candidate will be able to carry out a function that
is intrinsic to the work concerned (for example, if a job involves heavy lifting
it may be necessary to ask the candidate with a mobility impairment whether
they could manage this);
-
establishing whether there is a duty to make reasonable adjustments for the
disabled person in relation to the selection process;
-
monitoring diversity amongst candidates making the application for jobs
(for example, an employer may ask whether someone has a disability for the
purposes of ensuring that their adverts are reaching disabled persons);
-
taking positive action (for example, you may decide to guarantee interviews
for disabled persons); and
-
assuring yourself that a candidate has the disability where the job genuinely
requires the jobholder to have the disability (for example, a mental charity
requires a candidate with personal experience of mental health conditions.
They advertise for a candidate who has such a condition, they may ask
at interview whether the candidate has that condition).
An employer will not commit an act of disability discrimination merely by asking
about the candidate’s health, but if they rely upon this information this could
give rise to a discriminatory act.
What is disability arising from discrimination?
This is a new form of discrimination contained in the Act. It covers conduct which
arises not because of an employee’s disability itself, but because of something
arising as a consequence of that disability, for example dismissing a disabled
person because they have been absent because of their disability. It will however
be possible for employers to justify discrimination arising from disability,
provided they can show their actions are objectively justified (a proportionate
means of achieving a legitimate aim).
Can I still retire someone when they reach 65?
Provided you follow the proper process, yes. However, be aware that the
Government published a consultation document on 29 July 2010 setting out
its proposals for phasing out the default retirement age. They propose that with
effect from 6 April 2011 transitional arrangements will apply. With effect from
1 October 2011 the default retirement age will be phased out. Therefore, after
6 April 2011 no new notifications of intended retirement at the default
retirement age can be issued. The consultation ends on 21 October 2010
and we should know more information shortly thereafter.
What is positive action?
Positive action has been permitted by discrimination legislation for some time.
For example, employers are entitled to direct training at groups they consider
to be under represented.
In the Act there are two forms of positive action envisaged:
-
General positive action
-
Positive action in recruitment and selection.
The measures on positive action in recruitment and selection (which enables
employers to select someone from an underrepresented group in a recruitment
situation which would, otherwise, (be a “tie break”)) will not come into force
in October. General positive action, however, will. This allows employers
to introduce measures to help overcome a perceived disadvantage or meet
a specific need, as well as to train and encourage. This is akin to making
reasonable adjustments in “non disability” spheres (such as providing
a prayer room). Any such measures are entirely voluntary.
Will pay secrecy clauses be banned?
No. However, a secrecy clause (which requires an employee to keep their pay
details secret and prohibits them from discussing it with other employees) will
be unenforceable against employees involved in a “relevant pay disclosure”.
You can require your employees to keep their pay confidential from others
outside the workplace, for example a competitor organisation.
What is a relevant pay disclosure?
This is a pay discussion which must relate, to some degree at least, to the
possibility of discrimination. For example, a female employee has a discussion
with a male colleague to find out whether there is a difference in their pay, and
as such to determine whether there is any discrimination.
Can I dismiss another employee who tells
another they have been paid?
This would be regarded as victimising the employee because they make
a ‘relevant pay disclosure’ and will be unlawful under the Act. If you did
dismiss in this circumstance it would leave you exposed to claims.
Will I be required to publish my staff’s
rates of pay?
There is a power in the Act for the Government to require employers to publish
information relating to differences in pay where the employer has more than
250 employees (private sector) and where the employer has over 150 employees
(public sector). Public sector employers may be required to publish gender pay
gap information from April 2011. The Government is still deciding whether
to apply this power to private sector employees ‘so watch this space’.
Are there any ‘exceptions’ where the Act
is different from the old laws?
A few examples where the Act applies ‘exeptions’ differently:
-
Occupational requirements - if you can show that a particular PC is central
to a particular job, you can insist that only someone who has that particular
PC is suitable for the job. This is known as an ‘occupational requirement’.
-
Obeying another law - you can take into account a PC where not doing this would
mean you broke another law. For example, if the law said that a person had
to be a particular age to do something and you discovered that they were not
that age, you could dismiss them without this being unlawful discrimination.
-
National security - you can take a person’s PC into account if there is a need
to safeguard national security, and the discrimination is proportionate.
However, we would always recommend you take advice before applying
an exception.
What should I do now?
-
Brief your line managers and key personnel about the changes.
-
Review your policies and procedures, especially in relation to equal
opportunities and recruitment and consider whether these need updating.
-
Review your contracts of employment in relation to pay secrecy clauses.
-
Familiarise yourself with the statutory codes of practice contained
on the Equality and Human Rights Commission website 5.
-
If you feel out of your depth, seek legal advice.
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