The Equality Act 2010 – Implications for Employers

The Equality Act received royal assent on 8 April 2010 and, according to the current Government timetable, the majority of the Act’s provisions should come into force in October 2010. The Act’s purpose is to harmonise existing discrimination legislation as well as to support progress on equality.

It remains to be seen how much of the Act will remain in place given the coalition government’s respective views on the matter since predictably, as evident from their manifestos, there is a divergence of views between the coalition parties. Below are the basic changes to current discrimination laws that will impact employers and which may require you to amend your policies.

• Association & Perception
  The new wider definition of direct discrimination means all employees are now protected against discrimination “because of” a protected characteristic. This means that it is prohibited to discriminate against someone because of their association with another person who has a protected characteristic.  For example a non-disabled carer of a disabled person could bring a discrimination claim if not permitted by their employer to work flexibly to perform their role as carer. It also extends rights to people who suffer a detriment because they are wrongly perceived to have a protected characteristic. In a recent case a heterosexual man claimed sexual orientation discrimination when he was teased and bullied by colleagues who thought he was gay.
• Combined Discrimination
  The Act creates a new claim of combined discrimination under which Claimant’s may bring a claim that they have suffered direct discrimination on grounds of two protected characteristics combined, for example that an individual has been discriminated against on the grounds that she is a black woman.  This certainly gives another string to the Claimant’s bow, and it has been predicted that this will result in a 10% increase in discrimination claims.  In practice it is highly likely that Claimant’s will take the opportunity to plead this in the alternative, running the individual claims for each ground of discrimination and a combined discrimination claim in order to cover all bases.
• Third Party Harassment
  The Act extends the liability of employers for harassment of their employees by third parties e.g. clients, customers, suppliers and consultants. The obligation will not be triggered unless the employer knows that the employee has been harassed by a third party in the course of their employment on at least two previous occasions – not necessarily by the same third party –  and the employer has not taken reasonably practicable steps to prevent the harassment on that occasion, otherwise known as the “three strikes” provision.
• Pre Employment Health Questions
  Employers will be prevented from asking candidates questions about their health that are unrelated to the job role. It will mean that those with mental health issues, medical conditions or a disability will not be forced to disclose their condition prior to an offer of employment unless it hinders their ability to do the job.
• Disability Discrimination
  The Act makes significant changes to the provisions on disability discrimination which widen the scope of the protection, creating new prohibited acts of: discrimination arising from disability and indirect disability discrimination.  The current provisions requiring reasonable adjustments for disabled people in certain circumstances and prohibiting direct discrimination on the grounds of disability remain in place.
• Occupational Requirements
  The Act has introduced the new “occupational requirement” (OR) defence which applies to all protected characteristics (replacing the “general occupational requirement” and “genuine occupational qualifications” currently applicable to certain protected characteristics). To apply this defence the employer must show that the OR was crucial to the post and applying the OR was a “proportionate means of achieving a legitimate aim”.
• Positive Action
  The Act allows employers to take under-representation into account when selecting between two equally qualified candidates for recruitment or promotion as long as it is not a general policy applied in every case and the employer reasonably believes that there is under-representation or disadvantage suffered. As it is voluntary, employees and applicants cannot claim against an employer for not using positive action, but unhappy employees or applicants who were not selected because positive action was used will be able to bring claims on the basis that the test for positive action was not met.
• Pay secrecy clauses
  Clauses which ban employees from discussing their pay will be unenforceable in relation to discussions between an employee and a colleague, or former colleague, the purpose of which is to ascertain whether there is a connection between pay and a protected characteristic (referred to as relevant pay disclosures). Employers who discipline employees for talking about pay may be faced with claims that they have victimised employees, which is prohibited under the Act. Employers will continue to be permitted to have pay clauses in employment contracts which prevent the disclosure of pay information for other purposes, for example disclosure to competitors.
• Pay equality reports
  The Act provides for powers to be made to require private sector employers with 250 or more employees to publish information concerning differences in pay between their male and female employees. The Conservatives have been staunchly against such a requirement, preferring to instead only to require employers who are found at Tribunal to have unequal pay practices to disclose the information (which would certainly ‘up the ante’ in such claims), whereas the Liberal Democrats would prefer the requirement to be applied to all employers with 100 employees or more.

Employer Action Points
As the majority of provisions come into force in October it is important that you start to consider any changes that you may need to make to your employment documents, policies and procedures. These include:

1. reviewing your policies and contracts in light of the new definitions and prohibitions (e.g. direct and indirect discrimination; pay secrecy clauses and third party harassment);
2. reviewing your application forms and recruitment processes to ensure they conform with the limited scope of pre employment health questions; and
3. educating all employees on the changes to the concept of discrimination.

The Act makes numerous other changes which have not been mentioned in this article. If you would like to know more about the implications of the Equality Act 2010 or any other employment matter, please contact our employment department.