Equality Act 2010: What does it mean for employers?
The Equality Act 2010 aims to consolidate, simplify and (to an extent) expand upon existing discrimination law, but what impact will this have on employers' practices, policies and procedures?
The Equality Act 2010 aims to consolidate, simplify and (to an extent) expand upon existing discrimination law, but what impact will this have on employers' practices, policies and procedures?
The Act retains familiar concepts enshrined in current discrimination law but also makes a number of changes, which will come into force this Autumn. The Act protects against discrimination on grounds of a protected characteristic, such as age, disability, sex and race.
Direct discrimination – associative and perceived discrimination
The Act will harmonise the definition of direct discrimination to cover 'associative' and 'perceived' discrimination. This means that it will be unlawful to discriminate against employees because of their connection with someone who possesses a protected characteristic, or because they are mistakenly perceived to possess a protected characteristic.
Indirect discrimination
Indirect discrimination occurs when you impose a 'provision, criteria or practice' (PCPs) which members of one group are less likely to be able to comply with, which is not justified by the requirements of the job. Currently, claims cannot be brought for indirect discrimination on grounds of disability or gender reassignment; the Act however will include these.
This could provide difficulties for employers as they will have to anticipate the effect their PCPs could have on employees, even where that effect is unique to one particular person and not a group of people.
The Act also extends to protect people who are put off applying for a job because the prospective employer operates certain PCPs.
Disability
The Act introduces a new type of disability discrimination – 'detriment arising from disability', which replaces 'disability-related discrimination'. This prohibits employers from treating disabled employees in a detrimental way because of their disability unless they can objectively justify the treatment or they can show that they did not know (and could not reasonably be expected to know) that the employee had a disability. This change will undoubtedly tip the scales back in the employee's favour.
Harassment
The Act revises the definition of harassment to include associative and perceived discrimination. Employees will be permitted to claim harassment on the grounds of all protected characteristics save for pregnancy/maternity and marriage/civil partnerships.
The Act also extends to liability for third party harassment to all protected characteristics, other than pregnancy/maternity and marriage/civil partnerships, where the employer has failed to take reasonable steps to prevent it, and is aware that the harassment has occurred on at least two prior occasions.
Victimisation
Under the current law, you could be victimising someone if you treat them less favourably because of their actions (or potential actions) in connection with discrimination proceedings. The Act removes the requirement for an employee to produce a 'comparator' making it easier for the employee to bring a claim.
Dual discrimination
At present, an employee cannot make one discrimination claim based on two protected characteristics, for example, an Asian woman would have to bring two claims for race and sex discrimination. The Act allows 'dual discrimination' actions allowing employees to bring claims based on a combination of two (but not more) protected characteristics, excluding pregnancy/maternity or marriage/civil partnerships. This is likely to lead to new claims against employers.
Pay transparency
The Act gives employees the right to discuss pay with each other, employers will no longer be able to prohibit this.
Tribunals' powers
In discrimination claims Tribunals will have power to recommend steps that the employer should take in relation to their workforce as a whole, within time limits, such as staff training or changes to their staff policies.
Positive action
The Act extends the scope for employers to take 'positive action' as a proportionate means of enabling or encouraging people with a protected characteristic to overcome or minimise disadvantage, or participate in an activity where they are underrepresented. This includes allowing employers, on a case by case basis, to recruit or promote employees because of their protected characteristic if they are 'as qualified as' other candidates.
Pre-employment health questions
Another new feature of the Act is a ban on asking job candidates about their health before offering them work. Some questions will still be permitted but untargeted health questionnaires will no longer be allowed. Employers that do ask candidates about their health pre-employment will struggle to defend disability discrimination claims from unsuccessful applicants.
[2010-05-31]