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The majority of the Equality Act 2010 came into force 1st of Oct 2010, bringing together existing equality law into one place so that it is easier to understand and extending protection to some groups so that they are treated more fairly.
The new law protects everyone in Britain as it covers, age, race, religion and belief, sex (meaning gender) and sexual orientation; disability, gender reassignment, marriage and civil partnership, pregnancy and maternity.
Under the Act people are not allowed to discriminate, harass or victimise another person because they belong to a group that the Act protects, are thought to belong to one of those groups or are associated with someone who does.
Gender
Pay discrimination remains one of the most persistent forms of inequality in the Britain. Women earning on average 17 per cent less than men. A range of measures are designed to target this, largely through transparency about pay. Pay information must now be made available. Monitoring and reporting on gender pay by employers is encouraged, with the expectation that larger organisations will do so voluntarily; there is potential for this to become compulsory in four years time
Age
An important new feature under the Act will be to protect all from age discrimination, making it unlawful to offer less favourable treatment on the ground of age without justification
Disability
To tackle the stigma too often faced by job-seekers with disabilities, it will now be unlawful to ask questions relating to health or disability in the recruitment process (unless intrinsically necessary for the role). This is particularly important for those with mental health or other conditions involving social stigma, such as HIVor Aids. The very fact of having to decide whether to disclose his or her condition, or to lie on an application form, can form a stumbling block for an individual at the outset of the recruitment process.
But after the job-offer stage, an employer can ask these questions, in order to consider whether any specific adaptations will be necessary. However, if an individual finds that his or her job offer is withdrawn after such a disclosure, he or she will have a claim and the employer will have to prove that this was not due to discrimination (rather than the other way round).
Sexual orientation and religion
The Act extends beyond the workplace to cover the provision of goods and services to consumers. It is now unlawful discrimination under the new Act not to offer a service e.g. Bed and breakfast to same couple.
There is no express prohibition of harassment on grounds either of sexual orientation, or religion or belief for consumers, a matter of considerable debate and controversy as the Bill passed through the Lords. However, it is likely that in most instances, an individual who experienced harassment could still bring a claim for discrimination
What is unlawful discrimination?
Unlawful discrimination can take a number of different forms:
Employer must not treat a person worse than someone else just because of a protected characteristic (this is called direct discrimination).
For example:
An employer does not interview a job applicant because of the applicant’s ethnic background.
An employer says in a job advert ‘this job is unsuitable for disabled people’.
Employer must not do something to someone in a way that has a worse impact on them and other people who share a particular protected characteristic than on people who do not have that characteristic. Unless Employer can show that what Employer have done, or intend to do, is objectively justified, this will be indirect discrimination. ‘Doing something’ can include making a decision, or applying a rule or way of doing things.
For example:
A job involves travelling to lots of different places to see clients. An employer says that, to get the job, the successful applicant has to be able to drive. This may stop some disabled people applying if they cannot drive. But there may be other perfectly good ways of getting from one appointment to another, which disabled people who cannot themselves drive could use. So the employer needs to show that a requirement to be able to drive is objectively justified, or they may be discriminating unlawfully against people who cannot drive because of their disability.
Employer must not treat a disabled person unfavourably because of something connected to their disability where Employer cannot show that what Employer are doing is objectively justified. This only applies if Employer know or could reasonably have been expected to know that the person is a disabled person. This is called discrimination arising from disability.
For example:
An employer tells a visually impaired person who uses an assistance dog that they are unsuitable for a job because the employer is nervous of dogs and would not allow it in the office. Unless the employer can objectively justify what they have done, this is likely to be discrimination arising from disability. The refusal to consider the visually impaired person for the job is unfavourable treatment which is because of something connected to their disability (their use of an assistance dog). It may also be a failure to make a reasonable adjustment.
Employer must not treat a person worse than someone else because they are associated with a person who has a protected characteristic.
For example:
An employer does not give someone the job, even though they are the best-qualified person, just because the applicant tells the employer they have a disabled partner. This is probably direct discrimination because of disability by association. Direct discrimination cannot be justified, whatever the employer’s motive.
Employer must not treat a person worse because Employer incorrectly think they have a protected characteristic (perception).
For example:
An employer does not give an applicant the job, even though they are the best-qualified person, because they incorrectly think the applicant is gay. This is still direct discrimination because of sexual orientation.
Employer must not treat a person badly or victimise them because they have complained about discrimination or helped someone else complain or have done anything to uphold their own or someone else’s equality law rights.
For example:
An employer does not shortlist a person for interview, even though they are well-qualified for the job, because last year they said they thought the employer had discriminated against them in not short listing them for another job.
Employer must not harass a person.
For example:
An employer makes someone feel humiliated by telling jokes about their religion or belief during the interview. This may amount to harassment.
In addition, to make sure that disabled people have the same access, as far as is reasonable, to everything that is involved in getting and doing a job as a non-disabled person, Employer must make reasonable adjustments.
If an applicant asks for information about the job and the application forms (if there is one) in an alternative format which they require because they are a disabled person then Employer must provide this, so long as it is a reasonable adjustment – and it is likely to be.
If an applicant needs reasonable adjustments to participate in any interview or assessment process, then Employer must make them.
When Employer assess an applicant’s suitability for the job Employer must take account of how reasonable adjustments could enable them to do the job.
If, after taking reasonable adjustments into account, they would not be the best person for the job, Employer do not have to offer it to them.
But if they would be the best person with the reasonable adjustments in place, Employer must offer them the job. In any event, it would make sense for Employer to do this, as Employer want the best person for the job.
Question on Disability
Except in very restricted circumstances or for very restricted purposes, Employer are not allowed to ask any job applicant about their health or any disability until the person has been:
Offered a job either outright or on conditions, or
Included in a pool of successful candidates to be offered a job when a position becomes available (for example, if an employer is opening a new workplace or expects to have multiple vacancies for the same role but doesn’t want to recruit separately for each one).
This includes asking such a question as part of the application process or during an interview. Questions relating to previous sickness absence count as questions that relate to health or disability.
No-one else can ask these questions on Employer’s behalf either. So Employer cannot refer an applicant to an occupational health practitioner or ask an applicant to fill in a questionnaire provided by an occupational health practitioner before the offer of a job is made (or before inclusion in a pool of successful applicants) except in very limited circumstances, which are explained next.
The point of stopping employers asking questions about health or disability is to make sure that all job applicants are looked at properly to see if they can do the job in question, and not ruled out just because of issues related to or arising from their health or disability, such as sickness absence, which may well say nothing about whether they can do the job now.
Employer can ask questions once Employer have made a job offer or included someone in a group of successful candidates. At that stage, Employer could make sure that someone’s health or disability would not prevent them from doing the job.
But Employer must consider whether there are reasonable adjustments that would enable them to do the job.
There are several exceptions which relate to recruitment and which apply to all employers.
There are others that only apply to particular types of employer.
There are more exceptions which apply in other situations, for example, when Employer are selecting someone for redundancy. In addition to these exceptions, equality law allows Employer to:
Treat disabled people better than non-disabled people.
Age
Age is different from other protected characteristics. If Employer can show that it is objectively justified, Employer can make a decision based on someone’s age, even if this would otherwise be direct discrimination.
However, it is very unusual to be able to objectively justify direct age discrimination of this kind. Be careful not to use stereotypes about a person’s age to make a judgment about their fitness or ability to do a job.
For example:
An employer rejects someone for a management job just because they are 25 years old and much younger than the people they would be managing.
An employer only makes people over 50 do an aptitude test, because they believe that people over 50 do not have the mental agility to learn to do a job.
These are both examples of age discrimination which an employer would find it very difficult to objectively justify.
But special exceptions apply for people close to retirement age, and in this situation Employer do not have to show that the age limit Employer are using is objectively justified.
Employer can decide not to employ someone because of their age if within 6 months of applying for the job, they will be 65 or older or over the organisation’s normal retirement age if that is higher than 65.
For example:
An organisation has a normal retirement age of 70. An applicant for a job is 69 years and 8 months old at the time of making an application to work for it. The employer is allowed to refuse the application just because the applicant will reach the age of 70 within six months.
Occupational requirements
If Employer can show that a particular protected characteristic is central to a particular job, Employer can insist that only someone who has that particular protected characteristic is suitable for the job. This would be an ‘occupational requirement’.
For example:
A women’s refuge may want to say that it should be able to employ only women as counsellors. Its client base is only women who are experiencing domestic violence committed by men. This would probably be a genuine occupational requirement.
Obeying another law
Employer can take into account a protected characteristic where not doing this would mean Employer broke another law.
For example:
A driving school must reject a 19 year old who applies for a job as a driving instructor because to offer them a job – even if they are otherwise the best candidate – would involve breaking the law because a driving instructor must be aged at least 21.
National security
Exceptions that only apply to some employers
Single equality duty
At the moment there are three separate ‘public sector equality duties’ applying to public bodies. These are for race, disability and gender. Under the Equality Act 2010 there is to be a single public sector equality duty which will also embrace other grounds such as sexual orientation and religious belief, as well as the existing grounds. Not only the scope but also the content of the duty will be changed, for example there is likely to be a requirement to publish workforce disability information. A consultation document was issued in August 2010. Expected to come into force: April 2011 and (in part) April 2012
General duty
Public Sector Equality Duty will have two parts. First there is the ‘general duty’, which will oblige public authorities to have due regard to the need to: eliminate unlawful discrimination, harassment, victimisation;
advance equality of opportunity between those covered by the Equality Act and those not covered, e.g. between disabled and non-disabled people; foster good relations between these groups.
S.156 Equality Act says that a failure in respect of a performance of the Public Sector Equality Duty does not confer a cause of action at private law. However, the Government has confirmed (e.g. in explanatory notes published with the Equality Bill) that the option of judicial review proceedings will remain open to anyone who wishes to challenge a public body’s implementation of the general duty. This is important given the tough line the courts have been taking on the general duty.
Specific duties
The second part of the Public Sector Equality Duty is the ‘specific’ duties, designed to support performance of the general duty. These will be set out in regulations. In August 2010 the Government issued a consultation document setting out its proposals for the new specific duties: The public sector Equality Duty: Promoting equality through transparency (link to equalities.gov.uk). The consultation closes on 10th November. Some key points are as follows:
The existing requirement to publish equality schemes is being abolished. The focus will be on measurable outcomes rather than processes.
Transparency is important to enable public bodies to be judged by citizens. Therefore one specific duty will require publication of various equality-related information, as from April 2011. The Equality and Human Rights Commission working with the Public Sector Transparency Board will set out standard requirements for the equality data to be published by different types of public bodies.
From one year later, April 2012, public authorities will also have to publish one or more specific measurable objectives to achieve, stating how progress towards these objectives should be measured. Unlike Labour’s proposals, there will be no duty to set out the steps the authority proposes to take to meet equality objectives.
There is to be no specific duty to engage with disabled people or other
Workforce disability information
One specific duty will be a requirement on public sector employers with over 150 employees to publish data on equality in their workforces. This must be done at least annually.
An Equality and Human Rights Commission Code of Practice and guidance will set out the data to be published by different types of public bodies, and “we would expect this to include data on important inequalities such as the gender pay gap, the proportion of staff from ethnic minority communities and the distribution of disabled employees throughout an organisation’s structure.
Procurement – promoting equality in the private sector
The Equality Act makes clear that public bodies can use procurement to drive equality (Schedule 26, amending Local Government Act 1988). It also enables Ministers to make regulations setting out how public bodies should go about doing so (s.156).
The Equality Duty requires public bodies have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between different groups across all their functions.
Some points from Parliament
House of Lords Committee on the Equality Act – January 2010
The Government accepted an amendment to provide that, in having due regard to the need to advance equality of opportunity, a public body must give consideration to the fact that meeting the needs of disabled people may, in particular, involve taking steps to take account of their disabilities. The Government recognised that the needs of disabled people are different from the needs of persons who share one or more other protected characteristics, and had sympathy with the argument that the lack of explicit reference to disability may, in practice, lead to public bodies thinking that they need to do less than they are required to do under the existing disability.
“In simple terms, employment will be caught where integral to the performance of a public function. For example, where a contractor runs a prison it will need to comply with the duty in relation to its employees working in the prison but not those involved in other work such as collecting cash from a bank.”
Discrimination by association and perception
Direct discrimination or harassment based on association or perception are made unlawful, or in some cases more clearly unlawful. This might apply for example where a friend of a disabled person is harassed, or where an impairment does not actually have a substantial effect but someone thinks it does. This change implements a European Court decision in Coleman v Attridge Law, but also goes beyond it.
Reasonable adjustments by service providers
It is now easier to claim reasonable adjustments from service providers.
The Equality Act 2010 will make it easier to claim reasonable adjustments from service providers. It will no longer be necessary to show that the provider’s practice etc makes it ‘impossible or unreasonably difficult’ to access the service. The test will be whether the practice places the disabled person at a substantial disadvantage. This is the threshold currently used for employment
Definition of disability
The Government is not broadening the definition of disability as recommended by the Disability Rights Commission, but the Act removes the list of ‘capacities’
A tribunal will be able to make a recommendation benefiting the wider workforce, even if it is no longer relevant for the individual claimant. This is most likely to happen where the individual has left the employer.
Dual discrimination
Claims for direct discrimination on two combined grounds (but no more than two) are to be allowed – e.g. discrimination for being a disabled woman. Expected to come into force: possibly April 2011, but not yet decided.
(New ‘Dual discrimination’ clause now contained in Equality Act 2010
The Equality Act 2010 will cover direct discrimination on up to two combined grounds, e.g. disability and gender, or disability and race. The Government considers it too complicated and burdensome to allow claims on three or more different discrimination grounds.
Dual discrimination is covered in a new clause added to the Bill in July 2009 and subsequently amended. It is now s.14 Equality Act 2010: “Combined discrimination: dual characteristics. As well as being limited to two combined grounds, s.14 is limited to direct discrimination. So it does not apply to harassment, nor to indirect discrimination, nor to discrimination arising from disability. However:
In the case of harassment, combined discrimination should often be covered on the basis that the harassment ‘relates’ to each of the grounds.
It remains to be seen how s.15 of the Act on discrimination arising from disability is interpreted – where A treats B unfavourably “because of something arising in consequence of B’s disability.
It is not clear when the provision will come into effect. The Labour Government had envisaged that s.14 would come into force in April 2011. However the Coalition Government said in late August 2010 that this was an area they are still considering: www.equalities.gov.uk/equality_bill.aspx.
The Government has confirmed to Parliament that for the purpose of dual discrimination, even if one satisfies the definition of disability by a combination of impairments, that will be treated as the single protected characteristic of disability)
Liability for harassment by customers etc
In some circumstances employers are now liable if staff are being harassed by third parties, such as customers or suppliers.
Will be interesting what the UK will adopt after Brexit.