The new Equality Act came into force in October 2010 and replaces all previous equality legislation – namely the Race Relations Act 1976, the Disability Discrimination Act 1995, the Sex Discrimination Act, the Equal Pay Act, the Employment Equality (Age) Regulations 2006, The Civil Partnership Act 2004, the Employment Equality Regulations 2003 (religions and belief and sexual orientation). Ready for the details? Here we go.
The Equality Act covers the same characteristics that are protected by existing equality legislation
The new Act also extends protections to some other characteristics and introduces other changes. This Act applies equally to employees, workers and many of those who are self-employed (only Freelancers who fall under Part 5 of the Equality Act 2010 are covered – that is those who are described as ‘contract workers’ and are contracted personally to do the work, i.e you cannot claim discrimination against your Employer if you are contracted for the provision of services and hire someone else, or sub-contract someone else, to do the work – you must do the work yourself personally).
The Act protects people of all ages. However, different treatment because of age is not necessarily unlawful (direct or indirect) discrimination if Employers can justify it, i.e. they can demonstrate that it is a proportionate means of meeting a legitimate aim
The Act continues to allow employers to have a default retirement age of 65.
Disability (the new Act introduces a new definition and other changes)
The Act has made it easier for a person to show that they are disabled and so protected under disability discrimination. Under the new Act, a person is disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities (which would include things like using a telephone, reading a book or using public transport).
Previous legislation provided a list of capacities that must be impaired, that a person must have at least one of, to be classified as disabled under the act. These were mobility; manual dexterity; physical coordination; continence; ability to lift, carry or move everyday objects; speech, hearing or eyesight; memory or ability to concentrate, learn or understand; perception of the risk of physical danger. This list has now been removed.
As before, the Act puts a duty on Employers to make reasonable adjustments for staff to help them overcome disadvantage resulting from an impairment. Disabled people are no longer required themselves to establish that their treatment is less favourable than that experienced by a non-disabled employee.
The Act includes a new protection from discrimination arising from disability – namely that it is discrimination to treat a disabled person unfavourably because of something connected with their disability (e.g. a tendency to make spelling mistakes arising from dyslexia). This type of discrimination is unlawful where the employer or other person acting for the employer knows, or could reasonably be expected to know, that the person has a disability. This type of discrimination is only justifiable if an employer can show that it is a proportionate means of achieving a legitimate aim.
Additionally, indirect discrimination now covers disabled people.
The Act also includes a new provision which makes it unlawful, except in certain circumstances, for employers to ask about a candidate’s health before offering them work (see below).
Gender reassignment (The new Act introduces a new definition)
The Act provides protection for transsexual people. A transsexual person is someone who proposes to, starts or has completed a process to change his or her gender. The Act no longer requires a person to be under medical supervision to be protected – so a woman who decides to live permanently as a man but does not undergo any medical procedures would be covered.
Transgender people such as cross dressers, who are not transsexual because they do not intend to live permanently in the gender opposite to their birth sex, are not protected by the Act.
It is discrimination to treat transsexual people less favourably for being absent from work because they propose to undergo, are undergoing or have undergone gender reassignment than they would be treated if they were absent because they were ill or injured. Medical procedures for gender reassignment such as hormone treatment cannot be treated as a ‘lifestyle’ choice.
Race
For the purposes of the Act ‘race’ includes colour, nationality and ethnic or national origins. A racial group can be made up of two or more different racial groups (eg Black Britons).
Religion or belief
Both men and women are protected under the Act.
Sexual orientation
The Act protects bisexual, gay, heterosexual and lesbian individuals.
Marriage and civil partnership
The Act protects employees who are married or in a civil partnership against discrimination. Single people are not protected.
Pregnancy and maternity
A woman is protected against discrimination on the grounds of pregnancy and maternity during the period of her pregnancy and any statutory maternity leave to which she is entitled up to 6 months after the birth or while still breastfeeding. During this period, pregnancy and maternity discrimination cannot be treated as sex discrimination. For example, an Agency cannot refuse to place a worker, or a hirer refuse to accept a worker because she is pregnant, or terminate the placement. If you are an ‘Agency Worker’ please see our new Guide to the Agency Worker Regulations and what this will mean if you are pregnant.
The concept of dual discrimination is introduced by the Act and was due to come into effect in March 2011, but was later postponed. This is where an individual, who believes that he or she has been treated less favourably because of a combination of two protected characteristics can bring a combined claim, but only for direct discrimination (and with the exception of the protected characteristics of marriage/civil partnership and preganancy/maternity). If this concept is re-examined we will update accordingly.
The new Equality Act limits the circumstances when Employers (or Agencies) can ask health-related questions (of the applicant or in a reference request letter) before they offer an individual a job.
Now, before a job offer, Employers can only ask health-related questions that help them:
Extension of employment tribunal powers
Under previous legislation, an employment tribunal could make a recommendation that an employer must eliminate or reduce the effect on the claimant of any discrimination. The Act extends this power so that it will now be possible for a tribunal to make recommendations that an organisation takes steps to eliminate or reduce the effect of discrimination on other employees, not only on the claimant (even if the claimant has left their employer).
For example, the tribunal might specify that an employer needs to train all staff about the organisation’s bullying and harassment policy. This power does not apply to equal pay cases.
Equal pay – direct discrimination
The Equality Act retains the previous framework that was in place. This means that in most circumstances a challenge to pay inequality and other contractual terms and conditions still has to be made by comparison with a real person of the opposite sex in the same employment.
However, a change in the Equality Act allows a claim of direct pay discrimination to be made, where no real person comparator can be found. This means that a claimant who can show evidence that they would have received better remuneration from their employer if they were of a different sex may have a claim, even if there is no-one of the opposite sex doing equal work in the organisation. This would be a claim under sex discrimination.
The Act carries provisions to introduce compulsory pay audits for Employers with more than 250 employers from 2013 (if felt legislatively necessary). Public sector bodies with more than 150 employees will be required to report on gender pay (as well as other equality data) by April 2011.
Pay secrecy
The Act makes it unlawful for an Employer to prevent or restrict their employees from having a discussion to establish if differences in pay exist that are related to protected characteristics and outlaws pay secrecy clauses in contracts of employment.
An employer can require their employees to keep pay rates confidential from some people outside the workplace, for example a competitor organisation.
Your Employer must, by law, have an Equal Opportunities policy
The following must also be considered:
The Equal Opportunities Commission, the Disability Rights Commission and the Commission for Racial Equality were merged in October 2007 to form a single equality body called the Commission for Equality and Human Rights. It offers various publications and advice to explain the above in more detail.
