• Care home – HR support
• Contracts of employment
• Children’s nursery – HR support
• Disciplinary procedures
• Employee handbooks
• Employment tribunal claims
• Equality Act 2010
• Flexible working requests
• Maternity leave rights
• Redundancy procedures & business restructuring
• Restrictive covenants – employer
• Retirement age issues
• Sickness absence
• TUPE regulations
• Whistleblowing

Equality Act 2010

To find out more about how the Equality Act 2010 will affect your business. Or to discuss how your equal opportunities policy and other HR documentation need to be amended please call us on
0161 618 1032 or click here

The headlines of the Daily Mail spoke of the death of the office joker, a myriad of new claims and asserted that anyone could now sue for anything which offended them at work. However, many commentators see the Equality Act 2010 very much as a consolidation (and perhaps a slight hardening) of existing discrimination law.

The Equality Act 2010 came into force on 1st October 2010.

The main feature of the Act is to consolidate the UK’s various discrimination statutes into one Act. The Act is based on "protected characteristics" which are essentially the ones which already exist under existing discrimination legislation:

• age
• disability
• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• race
• religion or belief
• sex and sexual orientation.

There are however some features of the Equality Act which are new which employers should be aware of. Below is a summary of the more important new features: We recommend that you review and update the wording of your policies and procedures to ensure that they reflect the terminology used in the Equality Act, and to make clear that discrimination and harassment in the workplace can extend to “discrimination by association”. Also consider your use of pay secrecy clauses and any pre employment health questionnaires.

New features

1. Wider basis of discrimination – this covers less favourable treatment of a person because they are associated with someone with a protected characteristic, e.g. an employee caring for a disabled child or based on a mistaken perception that the victim has one of the protected characteristics. Historically, this protection did not apply in some UK discrimination statutes, but it now applies to all the protected characteristics, with the exception of marriage and civil partnership (where the victim has to be themselves married or a civil partner).
2. Harassment – this now includes unreasonably failing to prevent the harassment of an employee by a third party in the course of their employment (e.g. a customer or supplier) if it occurred on more than two occasions (whether or not by the same third party) and the employer was aware of that. Protection on this basis was already available under the Sex Discrimination Act 1975. It has now been extended to the other protected characteristics. Instructing, causing or inducing discrimination, harassment or victimisation is prohibited for all the protected characteristics.
3. Pre-employment health enquiries – A new provision prevents employers from asking job candidates unnecessary questions about their health (including any disability) before they are offered a job. There are exceptions where enquiries are in order to make reasonable adjustments to enable a disabled person to participate in the recruitment process, or to establish whether they will be able to carry out a function intrinsic to the work, or for monitoring diversity in job applications. Employers who do ask health or disability-related questions before the job offer stage might be required to prove to an Employment Tribunal that they did not discriminate if the individual did not get the job, which is not likely to be easy.
   
   This provision is intended to prevent pre-employment questionnaires being used to discriminate against people who declare a disability before selection for interview or other stages. Employers will be able to screen people about their health once a job offer has been made in order to make reasonable adjustments or where necessary withdraw the offer, provided this can be properly justified.
4. Pay secrecy clauses ‘Pay secrecy clauses‘, which prohibit discussions about pay between colleagues or with ex-colleagues, will be unlawful insofar as a person seeks to make a “relevant pay disclosure”. A relevant pay disclosure is a disclosure made in order to find out whether or to what extent there is a connection between pay and a protected characteristic. A person who makes or seeks a disclosure is protected from victimisation. This is not a total ban on pay secrecy clauses but is intended to assist potential claimants in establishing if there is a pay disparity which may be discriminatory.
5. New enforcement powers – Employment Tribunals can currently make recommendations in discrimination cases if they find in favour of the Claimant, but only if those recommendations will directly benefit the successful Claimant. Since the Claimant has often left employment, this power is limited. Under the Equality Act 2010 this power is extended in order to allow for recommendations benefiting the employer‘s wider workforce with a view to preventing similar discrimination in the future. Failure to comply with a recommendation within a specified timescale could result in an award of compensation, or compensation being increased. Recommendations will be included in the Tribunal‘s judgment, which are intended to be available on their website. Future Claimants or their representatives would therefore be able to search for any existing recommendations prior to bringing employment tribunal claims.
6. A new equality duty on public bodies – Previously public authorities were subject to three separate equality duties designed to tackle discrimination and promote equality in the fields of race, disability and gender. These separate duties are replaced by a single duty that also extends to cover all the protected characteristics with the exception of marriage and civil partnerships. The Equality Duty requires public authorities to have due regard to the need to eliminate discrimination, harassment and victimization, advance equality of opportunity and foster good relations between different groups. The new duty will come into force in April 2011.
7. Extension of ‘positive action’ – The Equality Act 2010 allows employers to recruit a person from an under-represented group over another candidate who is “as qualified as” them (‘positive action’). However employers must be able to show they do not have a general policy of treating people with a protected characteristic more favourably than others (‘positive discrimination’), which remains unlawful. They also have to show that the action is a proportionate means of achieving the aim in question.
   
   It is extremely difficult to envisage how this will work in practice. It would be a brave employer who takes on the task of attempting to demonstrate to a Tribunal that the candidates are as qualified as each other and that this course of action was therefore justified.

Disclaimer – The contents of this page are provided for general guidance only and do not replace the need to obtain legal advice about any given situation.