The Equality Act 2010 - The New Law
The Equality Act 2010 received the Royal Assent on 8 April, together with a plethora of Codes of Practice and Explanatory Notes. This statute (with 218 sections and 28 Schedules) marks the culmination of some 40 years of progressive legislation to create fairness between groups. But it remains to be seen whether some of the more contentious provisions will be brought into force with the new political complexion of the progressive coalition. Most of the provisions of the Act are due to come into force in October 2010.
This article examines some of the key new measures which affect the law of employment.
Protected characteristics
The Act aims to harmonise discrimination law across the various different types of discrimination. Under the new Act the grounds upon which discrimination will be unlawful are referred to as “protected characteristics”. These characteristics are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
Having explained what is meant by those characteristics, the Act then goes onto define when discrimination occurs and in certain respects, the new legislation widens the scope of what constitutes discrimination.
Direct discrimination
Under the new definition, “direct discrimination”, occurs when “because of” a protected characteristic, a person is treated less favourably than others. This is different from the old legislation which referred to discrimination “on the ground of” e.g. a person’s sex. It remains to be seen whether this change is simply a clarification (as the Government maintained when enacting the legislation), or whether Courts and Tribunals will decide that there is a more substantive change so that in order to establish discrimination it will be necessary to prove an element of conscious motivation by the alleged discriminator.
The new definition of direct discrimination will also allow claims for discrimination by association. This is because the Act does not link the “protected characteristic” (e.g. a person’s age) to the person who is the subject of discrimination – the protected characteristic can relate to somebody else. So, the definition could cover a case where an employee is treated less favourably because she cares for an elderly relative. That can amount to age discrimination, even thought the employees age is not the reason for the treatment, (but the age of the relative) as the treatment is “because of age”.
The definition also covers “perceptive” discrimination i.e. where there is discrimination because of a person’s perceived characteristics. So if an employer rejects a job application form from a white man whom he wrongly thinks is black, because the applicant has an African-sounding name, this would constitute direct race discrimination based on the employer’s mistaken perception.
Dual discrimination
There are new provisions which allow a claimant to bring claims for two types of discrimination at once. The guidance refers to how this might apply. For example, a black woman might be refused promotion because her employer thinks that black women do not perform well in the vacancy. Currently an employer could defeat her claim by pointing to an equally qualified white female and a black male employee in the same or a similar role. Under the Equality Act, a claim could be mounted on the basis of less favourable treatment because of the combined characteristics of race and sex. Only certain combinations of dual discrimination are allowed.
Indirect discrimination
The scope of indirect discrimination has been expanded to include disability discrimination, as well as harmonising the various different definitions under current legislation for different types of discrimination.
Indirect discrimination occurs when a policy which applies in the same way for everybody has an effect which particularly disadvantages people with a “protected characteristic”. Where a particular group is disadvantaged in this way, a person in that group is indirectly discriminated against if he or she is put at that disadvantage, unless the person applying the policy can justify it as being “a proportionate means of achieving a legitimate aim”. So, an employer enforces a “no beards” policy by asking staff to shave. This could be indirect discrimination, because it would have a particular impact on Muslims or Orthodox Jews.
Disability discrimination
Following a House of Lords decision in 2008 which made bringing a disability discrimination claim more difficult, the Equality Act introduces a new definition of disability discrimination. Under this new definition there will be discrimination where a disabled person is treated unfavourably not because of the person’s disability itself, but because of something arising from, or in consequence of, his or her disability, such as disability-related absence. It is possible to justify such treatment if it can be shown to be a proportionate means of achieving a legitimate aim. For this type of discrimination to occur, the employer or other person must know, or reasonably be expected to know, that the disabled person has a disability.
An example would be where an employee with a visual impairment is dismissed because he cannot do as much work as a non-disabled colleague. If the employer sought to justify the dismissal, he would need to show that it was a proportionate means of achieving a legitimate aim.
Enquiries about disability and health
Except in the certain specified situations, an employer must not ask about a job applicant’s health. The Disability Discrimination Act 1995 did not prevent an employer from making health or disability related enquiries of applicants for a job, although it did make it unlawful to use the result of such enquiries to discriminate against a candidate because of his or her disability. This provision is aimed tackling the disincentive effect that an employer making such enquiries can have on some disabled people making applications for work.
Secrecy clauses
Another of the key new provisions is the banning of “gagging” clauses which stop employees discussing their pay with colleagues where the purpose of any disclosure is to find out whether there is unlawful discrimination. Any action taken against an employee by the employer as a result of conduct protected by this section is treated as victimisation.
For further details about the Equality Act 2010, please contact:
Mark Shulman
markshulman@cumberlandellis.com
