Key employment changes in the Equality Act 2010

The Equality Act 2010 brings together existing legislation on discrimination and equality. The up side to this is that your responsibilities as an employer will mainly stay the same. However, there are a number of new provisions included in it which all employers should be aware of, including third party harassment, positive action provisions, pay secrecy and changes to disability discrimination.

 

What is The Equality Act 2010?

The Equality Act is a new piece of legislation which brings together and replaces the following legislation:

• The Equal Pay Act 1970
• The Sex Discrimination Act 1975
• The Race Relations Act 1976
• The Disability Discrimination Act 1995
• The Employment Equality (Religion and Belief) Regulations 2003
• The Employment Equality (Sexual Orientation) Regulations 2003
• The Employment Equality (Age) Regulations 2006
• The Equality Act (Sexual Orientation) Regulations 2007

The Act is scheduled to come into effect in October 2010.

 

Key changes affecting employment law

Protected characteristics

The Act defines nine ‘protected characteristics’ of groups protected by the legislation. These include age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion and belief, gender and sexual orientation.

 

Although many of the definitions of these groups/characteristics have carried over from previous laws, some changes have occurred in the following areas:

 

• Disability – The Act is designed to make it easier for a person to show that they are disabled and protected from disability discrimination. A new definition of disability has been introduced, which means a person is disabled if they have “a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities”.
• Gender reassignment – The Act will provide protection for transsexual people, someone who is “proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex”. The Act no longer requires a person to be under medical supervision to be protected.

 

Types of discrimination

The Act defines discrimination by reference to direct, associative, perceptive and indirect discrimination, harassment, third party harassment and victimisation.

 

• Associative discrimination refers to when someone is discriminated against because of their association with someone who has a protected characteristic.
• Indirect discrimination can happen when a company policy or practice, which applies to everyone, particularly disadvantages people with a protected characteristic.  
• Third party harassment refers to harassment by people who are not employed by your company, for example contractors, suppliers or customers. This already applies to sex but will now be extended to other protected characteristics. 

 

Positive action

The Act allows you to take what is known as ‘positive action’ if you think that employees or applicants for a job who share a protected characteristic suffer a disadvantage connected to that characteristic.

 

Pre-employment health questionnaires

Your ability to ask questions about an applicant’s health before offering them a job will be limited. This will discourage the use of pre-employment health questionnaires as part of your recruitment process.

 

You will only be able to ask applicants questions about health if:

• The information will be used to make reasonable adjustments for them to take part in the interview process or carry out their job
• To decide whether the applicant could carry out essential elements of the job
• To monitor diversity and take positive action.

 

Direct discrimination in equal pay

Most pay inequality claims will be dealt with in the same way as the existing legislation, which requires a comparison to be made with a real person of the opposite sex working in the same company.

 

However, the Act will also allow a claim of direct pay discrimination with regards to sex, even if no comparator exists in the business. Therefore, a claimant who can demonstrate that they would have received better pay if they were a member of the opposite sex could make a claim.

 

Pay secrecy

It will be unlawful to prevent employees from discussing differences in pay that are related to protected characteristics.

 

Any terms and conditions in your contracts of employment that require pay secrecy will be unenforceable in these circumstances, unless they refer to discussing pay with competitors.

 

Employment tribunals

The powers given to tribunals have been extended under the Act. If a tribunal finds an employer guilty of discrimination, it will be able to make recommendations that they eliminate or reduce the effect of discrimination on employees other than the claimant. This is meant to prevent further discrimination in the workplace.

 

Please note: This article is meant as guidance and does not constitute legal advice.