Changes under the Equality Act 2010

For a number of decades, discrimination legislation has played an important role in creating greater equality within society. However, despite the progress made the legislation has become overly complex and has resulted in a general lack of clarity.  

The Equality Act 2010 provides a new cross-cutting legislative framework that effectively brings together, harmonises and in some respects extends the current discrimination laws.

A number of key provisions within the Equality Act will come into force on 1 October 2010. The main changes are as follows:

1. General Discrimination

• To qualify for protection from discrimination, a disabled person no longer has to show that their impairment affects a particular 'capacity', such as mobility, speech, hearing or eyesight. This will remove one of the obstacles for disabled people in gaining protection under the legislation.
• The concept of "discrimination by association" is extended to cover age, disability, gender reassignment and sex discrimination. This is direct discrimination against an individual because they have a connection with another person who possesses such a characteristic. For example, this will provide new protection for people who care for elderly or disabled relatives.
• The concept of "perceptive discrimination" is extended to cover disability, gender reassignment and sex discrimination. This is direct discrimination against an individual because others think they possess a particular protected characteristic (whether they do or not).
• A new concept of "discrimination arising from disability" will replace protection under previous legislation that has been lost as a result of legal judgment. This means that it will be unlawful to treat a disabled person unfavourably because of something arising in consequence of that person's disability. For example, unfair discrimination against a disabled worker who requires more leave from work than his colleagues. If the treatment is justified the employer may have a defence.
• A new provision is included which makes it unlawful for employers to ask about a candidate's health before offering them work. The employer may have a defence if the employer can prove the health questionnaire is necessary to ascertain the applicant's ability to participate in the recruitment process; carry out a function intrinsic to the work; or for monitoring diversity purposes.  
• The Act provides further protection for transsexual people. A transsexual person is someone who proposes to, starts or has completed a process to change his or her gender. The Act no longer requires a person to be under medical supervision to be protected. For example, a woman who decides to live as a man but does not undergo any medical procedures would be covered.
• The Act provides further protection for transsexual people. A transsexual person is someone who proposes to, starts or has completed a process to change his or her gender. The Act no longer requires a person to be under medical supervision to be protected. For example, a woman who decides to live as a man but does not undergo any medical procedures would be covered.

2. Equal Pay - Direct Discrimination

The Act makes it unlawful for an employer to prevent or restrict its employees from having a discussion to establish if there are any differences in their pay that may be related to protected characteristics, such as gender, age etc. Effectively a ban on salary 'gagging' clauses.

2. Victimisation

The need for a comparator has been removed.

3. Harassment

The Equality Act makes employers potentially liable for harassment of employees by third parties who are not employees of the company, such as customers or clients. This will occur when there has been harassment on at least two previous occasions (a '3 strike' rule).

Alongside the above changes coming into force on 1 October 2010 there are a number of other provisions that the Government are still considering. These concern the following:

• Dual discrimination allowing people to bring a claim if they were directly discriminated against because of a combination of two relevant protected characteristics. At the moment, people may only bring separate discrimination claims in relation to each protected characteristic.
• The ability for the government to require all employers with more than 250 staff to report their gender pay gap from 2013, if sufficient progress on reporting has not already been made voluntarily.
• The new Socio-Economic Duty on public bodies will broadly require Government departments, local authorities and key health bodies to consider, in all the strategic decisions they make, how they will tackle the disadvantage some people face because of socio-economic disadvantage. This provision is far reaching and controversial and will have a large impact on how public sector bodies conduct their business.
• Provisions banning age discrimination in the provision of services and by private clubs, such as golf clubs.
• Duty to provide auxiliary aids to school pupils as a reasonable adjustment. As this is a new duty on schools and local authorities they are being given time to plan for the change and prepare for the implementation expected in September 2011.

Other miscellaneous provisions include: diversity reporting by political parties, positive action in recruitment and promotion, prohibition on age discrimination in services and public functions.

For more information on any of the issues raised in this article, please contact Tim Davies at tim.davies@michelmores.com