Legal Framework

Overview

The Equality Act came into force on 1st October 2010 and replaced previous anti-discrimination laws with a single act to make the law simpler and to remove inconsistencies. This makes the law easier for people to understand and comply with. The act also strengthened protection in some situations.

The act covers nine protected characteristics, which cannot be used as a reason to treat people unfairly. Every person has one or more of the protected characteristics, so the act protects everyone against unfair treatment. They protected characteristics are:

• age
• disability
• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• race
• religion or belief
• sex
• sexual orientation

The Equality Act sets out the different ways in which it is unlawful to treat someone, such as direct and indirect discrimination, harassment, victimisation and failing to make a reasonable adjustment for a disabled person.

The act prohibits unfair treatment in the workplace, when providing goods, facilities and services, when exercising public functions, in the disposal and management of premises, in education and by associations (such as private clubs).

The provisions of the act are being brought into force at different times (known as commencement dates). This is to ensure people and organisations affected by the new laws have plenty of time to prepare. Most of the provisions came into force in October 2010. Further provisions came into force in April 2011.

The Public Sector Equality Duty

The Act included a new Public Sector Equality Duty which came into force in April 2011 and which replaces the current public sector duties in the Race Relations (Amendment) Act, the Disability Discrimination Act and the Equality Act 2006. In order to meet this ‘general duty’ all public bodies are required to:

• eliminate unlawful discrimination, harassment or victimisation
• advance equality of opportunity between people who do and do not share a protected characteristic, and
• foster good relations between people who share a protected characteristic

The Protected Characteristics

The Equality Act 2010 covers nine protected characteristics, which cannot be used as a reason to treat people unfairly. Every person has one or more of the protected characteristics, so the act protects everyone against unfair treatment. They protected characteristics are:

Age

The Act protects employees of all ages but remains the only protected characteristic that allows employers to justify direct discrimination, i.e. if an employer can demonstrate that to apply different treatment because of someone's age constitutes a proportionate means of meeting a legitimate aim, then no discrimination will have taken place. The default retirement age (that was set at 65) was abolished from 6th April 2011.

Disability

A person has a disability if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day to day activities. Employers have a legal duty to make reasonable adjustments for disabled staff and students. The Act includes a new protection arising from disability and now states that it is unfair to treat a disabled person unfavourably because of something connected with a disability. An example provided is the tendency to make spelling mistakes arising from dyslexia. Also, indirect discrimination now covers disabled people, which means that a job applicant could claim that a particular rule or requirement disadvantages people with that disability.

The Act includes a new provision which makes it unlawful, with limited exceptions, for employers to ask about a candidate's health before offering them work.

Gender reassignment

It is discriminatory to treat people who propose to start to or have completed a process to change their gender less favourably, for example, because they are absent from work for this reason. The Act no longer requires a person to be under medical supervision to be protected. Transgender people who do not plan a permanent gender transition are not protected by the Act.

Marriage and civil partnership

The Act continues to protect employees who are married or in a civil partnership. Single people are however not protected by the legislation against discrimination.

Pregnancy and maternity

Women are protected during the period of their pregnancy and any statutory maternity leave they are entitled to. Any period of absence due to pregnancy-related illness cannot be taken into account when making a decision about a woman’s employment and an employer cannot refuse to employ and woman because she is pregnant, on maternity leave or because she has (or has had) an illness related to her pregnancy.

Race

The Act continues to protect people against discrimination on the grounds of their race, which includes colour, nationality, ethnic or national origin.

Religion or belief

The Act continues to protect people against discrimination on the grounds of their religion or their belief, including a lack of any belief. For a belief to be protected by the Act it must be:

• genuinely held
• a belief and not an opinion or viewpoint based on information available at the moment
• a belief as to a weighty or substantial aspect of human life and behaviour
• attain a certain level of cogency, seriousness, cohesion and importance
• be worthy of respect in a democratic society and
• be compatible with human dignity and not conflict with the fundamental rights of others

Sex

The Act continues to protect both men and women against discrimination on the grounds of their sex.

Sexual orientation

The Act continues to protect bisexual, gay, heterosexual and lesbian people from discrimination on the grounds of their sexual orientation.

Types of Discrimination – Definitions

Direct discrimination

Direct discrimination occurs when someone is treated less favourably than another person because of a protected characteristic they have or are thought to have (see perception discrimination below), or because they associate with someone who has a protected characteristic (see discrimination by association below).

Discrimination by association

Already applies to race, religion or belief and sexual orientation. Now extended to cover age, disability, gender reassignment and sex. This is direct discrimination against someone because they associate with another person who possesses a protected characteristic.

Perception discrimination

Already applies to age, race, religion or belief and sexual orientation. Now extended to cover disability, gender reassignment and sex. This is direct discrimination against an individual because others think they possess a particular protected characteristic. It applies even if the person does not actually possess that characteristic.

Indirect discrimination

Already applies to age, race, religion or belief, sex, sexual orientation and marriage and civil partnership. Now extended to cover disability and gender reassignment. Indirect discrimination can occur when an organisation has a condition, rule, policy or even a practice that applies to everyone but particularly disadvantages people who share a protected characteristic. Indirect discrimination can be justified if an employer can show that they have acted reasonably in managing their business, ie; that it is ‘a proportionate means of achieving a legitimate aim’. A legitimate aim might be any lawful decision made in running a business or organisation, but if there is a discriminatory effect, the sole aim of reducing costs is likely to be unlawful. Being proportionate really means being fair and reasonable, including evidencing that ‘less discriminatory’ alternatives have been considered for any decision made.

Harassment

Harassment is “unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual”. Harassment applies to all protected characteristics except for pregnancy and maternity and marriage and civil partnership. Employees will now be able to complain of behaviour that they find offensive even if it is not directed at them, and the complainant need not possess the relevant characteristic themselves. Employees are also protected from harassment because of perception and association.

Third party harassment

Already applies to sex. Now extended to cover age, disability, gender reassignment, race, religion or belief and sexual orientation. The Equality Act makes employers potentially liable for harassment of their employees by people (third parties) who are not employees of their organisation, such as customers or clients. Employers will only be liable when harassment has occurred on at least two previous occasions, they are aware that it has taken place, and have not taken reasonable steps to prevent it from happening again.

Victimisation

Victimisation occurs when an employee is treated badly because they have made or supported a complaint or raised a grievance under the Equality Act; or because they are suspected of doing so. An employee is not protected from victimisation if they have maliciously made or supported an untrue complaint. 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 under the Act

Equality Act 2010 – key changes in Employment Law

Positive action

As with previous equality legislation, the Equality Act allows employers to take positive action if they think that employees or job applicants who share a particular protected characteristic suffer a disadvantage connected to that characteristic, or if their participation in an activity is disproportionately low. The Equality Act 2010 from April 2011 allows employers to take a protected characteristic into consideration when deciding who to recruit or promote. However, employers can only do this when they have candidates who are “as qualified as” each other for a particular vacancy. This does not mean they have to have exactly the same qualifications as each other, it means that the selection assessment on a range of criteria rates them as equally capable of doing the job. Employers would also need some evidence to show that people with that characteristic face particular difficulties in the workplace or are disproportionately under-represented in the workforce or in the particular job for which there is a vacancy. In these circumstances, employers can choose to  use the fact that a candidate has a protected characteristic as a ‘tie-breakers when determining which one to appoint. Employers must not have a policy of automatically treating job applicants who share a protected characteristic more favourably in recruitment and promotion. This means they must always consider the abilities, merits, and qualifications of all of the candidates in each recruitment or promotion exercise. Otherwise, their actions would be unlawful and discriminatory.

Pre-employment health-related checks

The Equality Act limits the circumstances when employers can ask health-related questions before they have offered the individual a job. Up to this point, they can only ask health-related questions to help them to:

• decide whether they need to make any reasonable adjustments for the person to the selection process
• decide whether an applicant can carry out a function that is essential (‘intrinsic’) to the job
• monitor diversity among people making applications for jobs
• take positive action to assist disabled people
• assure them that a candidate has the disability where the job genuine requires the jobholder to have a disability

Once a person has passed the interview and has been offered the job (whether this is an unconditional or conditional job offer) the employer is then permitted to ask appropriate health-related questions.

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. 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 framework that was previously 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, even if 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.

Pay secrecy

The Act makes it unlawful for employers to prevent or restrict employees from having a discussion to establish if differences in pay exist that are related to protected characteristics. It also makes terms of the contract of employment that require pay secrecy unenforceable because of these discussions. An employer can require their employees to keep pay rates confidential from some people outside the workplace, for example a
competitor organisation