THE EQUALITY ACT 2010 - EMPLOYER BEWARE19th Apr 2012
The New Equality Act comes into force on 1 October 2010 and with it comes some big changes to this country's anti-discrimination laws. In the following article, Neil Andrews highlights some of the key changes employers should be aware of and why this new Act is more than just a consolidation exercise.
As most employers and employees are aware, under current legislation, it is unlawful to discriminate on the grounds of: -
- Marriage and Civil Partnership
- Pregnancy and Maternity
- Gender Reassignment
- Sexual Orientation
These forms of discrimination did not all become unlawful at the same time. Changes in the law to reflect shifting attitudes and the influence of EU legislation has led to piecemeal anti-discrimination legislation which arguably lacks consistency and causes confusion for both employers and employees alike. The Equality Act (the "Act") will consolidate nine pre existing anti-discrimination Acts in an attempt to make anti-discrimination law easier to understand and comply with. Whilst a lot of the rules and principles regarding discrimination will remain, the Act does see some developments including: -
Consolidation of the groups currently protected (as listed above), by referring to them as "protected characteristics" and making the test for discrimination more uniform.
New and in some cases broader, definitions of the "protected characteristics". For example, the definition of "Disability" has been amended making it easier for people to show that they are disabled. The onus, however, remains on the Claimant to show that the "impairment has a substantial and long-term adverse effect" on his/her ability to carry out "normal day-to-day activities" (s.6 (1)(b)). Associative Discrimination is now unlawful on the grounds of sex, age and gender reassignment as well as disability etc.
Example: Lisa is offered a job as a manager of a restaurant. However, the offer is withdrawn after Lisa informs her employer that her mother, who is in a wheelchair, is coming to live with her. The restaurant owner is concerned about Lisa's caring responsibilities for her mother. This may be discrimination against Lisa because of her association with a disabled person.
New Forms of Discrimination
Introduction of "discrimination arising from disability" (s.15), where a disabled person is treated unfavourably because of something connected to their disability. Combined Discrimination claims will be permitted for up to two relevant grounds (see s.14), negating the need for claimant's to pick just one.
Example: A disabled black woman may suffer prejudice or harassment that is not faced by an able-bodied black man or white woman and therefore, under the Act, she could, if she satisfied the relevant tests, be able to claim discrimination on any of the two grounds of sex, disability and/or race.
The Act has clarified that it is unlawful to discriminate against a woman because she is breastfeeding (s.13 (6)(a)).
In all cases of indirect discrimination an employer can now seek to justify indirect discrimination if they can show it is a "proportionate means of achieving a legitimate aim". Plus the general "occupational requirement" defence previously only available to certain types of discrimination is now available for all grounds of discrimination on the basis that it is "a proportionate means of achieving a legitimate aim".
The Act will discourage employers from asking about an applicant's health (s.60) at interview stage, including whether the applicant has a disability, unless the enquiries are for particular permitted purposes and are justifiable.
Harassment by Third Parties
The Act extends the employers liability for persistent harassment of their employees by third parties from only claims relating to sexual and sex related harassment to all the protected characteristics covered by the harassment provisions. An employer, therefore, may be liable if a third party harasses an employee in the course of their employment; the employer knows that the employee has been harassed in the course of their employment on at least two other occasions by a third party; and the employer has not taken reasonably practicable steps to prevent the harassment.
Example: Dave is homosexual and works in a wine bar as a barman. He tells his boss that he is unhappy after a customer calls him offensive names. His manager takes no steps and does not talk to the customer in question. Within a few days Dave's manager overhears customers making further offensive remarks to Dave and again he does nothing. Under these circumstances, the employer could be liable for failing to take steps to protect Dave from third party harassment.
Pay secrecy clauses will also be rendered unenforceable to the extent that employers will not be able to restrict employees' discussions regarding pay if the purpose of those discussions was to try and establish disparities linked to a protected characteristic. Further, if an employee discusses pay because he/she feels that he/she has been discriminated against, any action taken by the employer to stop such discussions could give rise to a victimisation claim.
Whilst the Act may provide better clarity and uniformity it has arguably missed the opportunity to clarify certain areas. For example the Act defines both "religion" (s.10 (1)) and "belief" (s.10 (2)) but fails to fully clarify the position. This means that employers still face the possibility of disputes with employees claiming they have been discriminated against for holding a religion or belief that many might find unusual.
One could easily view this new Act as simply a consolidation of existing anti-discrimination legislation and therefore not something that employers would have to look at in any great detail. However, the changes of varying subtleties that the Act will introduce could leave employers vulnerable to a raft of potential claims if their codes and policies are not amended and adapted accordingly.
As always please feel free to contact Neil Andrews for further information or with any employment queries on 01202 673011.