The Equality Act 2010

Over the last 40 years, discrimination legislation has played an important role in helping to make Britain a more equal society and a fair and enjoyable place to work.   Such is the determination to rid discriminatory practices in the workplace; Britain is governed by numerous Statutes, Statutory Instruments, European Regulations and Directives.

Discrimination legislation is vast, extremely complex and its application in the courts has been, in many areas at least, inconsistent.  Despite the obvious progress over the 40 years, regrettably claims for discriminatory treatment pervade many Employment Tribunal claims and discriminatory practices continue.

The Equality Act 2010 came into force on the 1^st October 2010 (around 90% at least). It is a single Act, consolidating nine separate pieces of legislation with the aim to harmonise and simplify existing previous provisions.  The Act also introduces new concepts, new terminology and extends the scope of previous provisions.

New terminology

There are a number of areas which remain unchanged as a result of the Equality Act 2010, as with existing legislation, the Act protects against discrimination on the following grounds:-

–      Age

–      Disability

–      Gender reassignment

–      Race

–      Religion or belief

–      Sex

–      Sexual Orientation

–      Marriage and Civil Partnership 

–      Pregnancy and maternity

However unlike previous legislation which had its own Statues and definitions therein, the Equality Act brings all of these provisions under one roof and refers to them simply as ‘protected characteristics’.

Rectifying problems in case law

A decision by the House of Lords in LB Lewisham v Malcolm UKHL [2008] severely curtailed the rights of some to claim for disability discrimination.  The Equality Act aims to shift the position back to a more balanced approach, giving disabled people wider rights by the introduction of new ways to claim for disability discrimination - called 'discrimination arising from disability’.

New provisions

The provisions relating to harassment have also changed, with a subtle alteration to the definition, and extension in scope which can potentially render employers liable for harassment against another person, even if the ill treatment is not directed at them, and has been committed by a customer or a third party. 

On the whole the Equality Act uses familiar concepts such as, such as ‘Direct’ and ‘Indirect’ discrimination but there are some interesting additions, such as the introduction of  ‘associative discrimination ‘which prevents less favourable treatment’ against a person who associates with another person, who shares a protected characteristic.   Not offering an employee a promotion because they have just told you that their wife is expecting a baby and will no longer be able to work long hours, is a popular example.

The Equality Act also introduces ‘perceptive discrimination’ to ensure one cannot discriminate against someone because they are perceived to possess a particular protective characteristic, even if they do not actually possess it.

Pre-employment health questions

Causing the most amount of controversy appears to be section 60 of the Act, which prohibits employers asking questions about a potential employee’s health before offering them work.  This will almost certainly stop employers from being permitted to asking how many days a candidate took off sick in previous years during an interview.  There are however, some exceptions to this rule, those being to permit questions to be asked to ensure that ‘reasonable adjustments’ can be made during the recruitment process, for monitoring diversity, and to ensure the person being interviewed is able to carry out the ‘intrinsic functions’ of the job.

Lawyers are already scratching their heads to find ways around this controversial provision, one suggested example being to offer potential candidates conditional offers of employment prior to obtaining further information about their medical history – but beware, there are many provisions which can still catch employers out.

Still to come

Some of the Act’s provisions are yet to come into force, some of them being the concept of dual discrimination enabling claims if individuals have suffered less favourable treatment on the grounds of having two or more protected characteristics, Single equality duty, positive action in recruitment and / or promotion and compulsory gender pay reporting.

For more information on how the Equality Act may affect you or your business, please contact our Employment law specialist Chris Aldridge at CA@kidwellssolicitors.co.uk