The Equality Act 2010 (the "Act")

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As of 1 October 2010 the Act harmonises and replaces previous legislation such as the Race Relations Act 1976 and the Disability Discrimination Act 1995. The Act is aimed at providing consistency in what you need to do to make your workplace a fair environment and to comply with the law.

The Act covers the same groups that were protected by existing equality legislation such as age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership and pregnancy and maternity. These are now known as “Protected Characteristics”.

Although your obligations as an employer remain largely the same, the Act extends some protections to characteristics that were not previously covered and it also strengthens particular aspects of equality law.


What’s New & What’s Changed?

Extension of Scope of Legislation

Associate discrimination
Associate discrimination is direct discrimination against someone because they associate with another person who has a Protective Characteristic - for example, discrimination against a partner of a disabled person. The Act extends protection for this type of discrimination to disability; gender reassignment and sex.

Discrimination by perception
Discrimination by perception is direct discrimination against someone because others think they possess a certain Protective Characteristic – for example, an individual is not offered a job because an employer believes that individual has particular religious beliefs. The Act extends protection for this type of discrimination to disability; sex and gender reassignment.

Indirect Discrimination
Indirect discrimination can happen when there is a policy or a rule that applies to everyone but disadvantages someone with a particular Protective Characteristic – for example, an employer requires its employees to work fewer days but longer hours with the result that an employee with a fatigue based disability may be unable to perform his/her duties to the requisite standard and therefore is at a disadvantage. Unless the new work schedule can be objectively justified the employee may have suffered indirect discrimination. The Act extends protection for this type of discrimination to disability and gender reassignment.

Harassment
Employees can now complain about behaviour that they find offensive even if it is not directed at them. The Act extends protection for this type of discrimination to age; disability; gender assignment; race; religion or belief or sexual orientation.

Harassment by a third party
Employers are potentially liable for harassment of their staff by a third party. The Act extends protection for this type of discrimination to age; disability; gender reassignment; race; religion or belief and sexual orientation.

Victimisation
This type of discrimination may occur when someone is treated badly because they have previously made or supported a complaint or grievance under the Act – for example, an employee is overlooked for a promotion because they challenged the failure of the company to previously employ a job applicant because of a particular sexual orientation. Under the act there is no longer a need to compare treatment of a complainant with that of a person who has not made or supported a complaint.


Recruitment & Remuneration

Pre-employment health related checks:
The Act now limits the circumstances when an employer can ask health related questions before offering an individual a job.

Employers are now only permitted to ask health related questions to help decide whether:

 

  • they need to make any reasonable adjustments for a person to take part in the selection process – for example changing the application form to an alternative format; and 
  • an applicant can carry out a function that is essential to the job.

Note:
A job applicant cannot take a prospective employer to an employment tribunal if they think the employer is acting unlawfully by asking questions that are prohibited. They can, however, complain to the Equality and Human Rights Commission (EHRC). An employer who is found guilty by the EHRC will be required to draw up an action plan. Failure to comply could result in a £5,000 fine.

Once an applicant has been offered the job (whether unconditional/conditional) then the employer is permitted to ask appropriate health related questions.

Equal pay – direct discrimination:
A change in the Act allows a claim of direct pay discrimination to be made even if no real person comparator is found. A claimant who can show evidence that he or she 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 within the organisation.

Pay secrecy in the workplace:
The Act makes it unlawful for the employer to prevent or restrict its employees from having a discussion to establish if differences in pay exist that are related to Protected Characteristics. It also makes the terms of a contract of employment that requires pay secrecy unenforceable.

An employer can still require that its employees keep pay rates confidential from certain persons outside of the work place - for example a competitor organisation.

Extension of employment tribunal powers

Under previous legislation, an employment tribunal could make a recommendation that an employer must eliminate or reduce the effect of any discrimination on the claimant. The Act extends this power so that it will now be possible for a tribunal to recommend that an organisation takes steps to eliminate or reduce the effect of discrimination on other employees and not just the claimant - for example the tribunal might specify that an employer needs to train all staff about the organisation’s bullying and harassment policy.

This new legislation does not apply to equal pay cases.


What do you as an employer need to do now?

You should review your policies and procedures, employee handbook and employment contracts and make any appropriate changes. 



20 October  2010 


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About Throgmorton: Throgmorton is one of the leading companies specialising in the provision of financial and administrative outsourcing in the UK SME financial services sector.

The information in this notice is intended for general guidance only. Throgmorton does not accept any responsibility for losses incurred to any person acting or refraining to act as a result of the information in this notice. Advice should be taken in the context of specific circumstances.