The Equality Act 2010 – a guide for employers

The Act protects against discrimination in the workplace on the grounds of:

• Race;
• Sex;
• Disability;
• Age;
• Gender reassignment;
• Marriage and civil partnership;
• Pregnancy and maternity;
• Religion or religious belief; and
• Sexual orientation.

These will be described as ‘protected characteristics’ and will reflect and update the existing laws.

The definition of disability, currently set out in the Disability Discrimination Act has been widened and it will no longer be necessary for employees’ impairments to affect specified ‘capacities’ such as mobility.  The requirements for gender reassignment have also been widened and the Act will also cover those whose reassignment process is not medically supervised.

The Act will still refer to direct discrimination, indirect discrimination, victimisation and harassment, but there will be some changes.

Direct discrimination

Direct discrimination occurs if an employer discriminates against an employee because of a protected characteristic, e.g. their race.  It will be unlawful to discriminate against employees because of their connection with someone else who has a protected characteristic or because they are mistakenly believed to have a protected characteristic.  This is more commonly known as discrimination by association or perception.  Discrimination against a woman who is breastfeeding will be considered to be sex discrimination.

Indirect discrimination

The Act will also extend indirect discrimination to include gender reassignment and disability.

Harassment

Employers can already be held liable for third party acts of discrimination, e.g. sexual harassment of an employee by a third party.  The Act will extend third party harassment to all protected characteristics (save for pregnancy / maternity and marriage / civil partnerships) where the employer has failed to take reasonable steps to prevent such harassment and if the employer is aware that the employee has experienced third party harassment on more than two occasions.

There will be two entirely new concepts of discrimination introduced by the Act:

Combined discrimination

This will enable claims to be brought by employees who have been directly discriminated against because of a combination of protected characteristics (excluding pregnancy / maternity and marriage / civil partnerships).

Detriment arising from disability

This will replace the concept of ‘disability related discrimination’ and occurs when an employer treats someone in a detrimental way because of something that is in consequence of their disability. 

Equal Pay

Employees who currently claim they are being paid less because of their sex have to identify a comparator of the opposite sex who is in the same employment, doing equal work, but being paid more.  Whilst the new Act will retain the requirement for a comparator, there will be two changes:

(i)       A comparator can be a successor to a post; and

(ii)    Hypothetical comparators will be allowed where there is direct sex discrimination in contractual pay, but no actual comparator exists.

Pay Transparency

The Act prevents employers from taking action against employees who discuss their pay with a view to finding if there has been any unlawful discrimination.  In addition to that, larger employers could eventually be forced to publish their gender pay gap.

Positive Action

The Act extends the scope for employers to take ‘positive action’ as a proportionate means of enabling or encouraging people with a protected characteristic to overcome or minimise disadvantage, or participate in an activity where they are underrepresented.

This will allow employers to recruit or promote employees because of their protected characteristic if they are as qualified as other candidates, if this is done on a case by case basis, rather than as a matter of policy.

Pre-employment questionnaires

Under the Act, pre-employment questionnaires will be banned, although some questions will still be permitted, providing they are necessary to determine whether a candidate can undergo an assessment for the job.

Employers should also note that the Equality and Human Rights Commission has the power to intervene if this rule is breached.

This also means that employers who do ask candidates about their health pre employment will find it more difficult to defend disability discrimination claims from unsuccessful applicants.  A tribunal would presume that the employer had discriminated and the burden of proof would then be on the employer to prove they had not.

Remedies

The Act extends the power of tribunals to make recommendations to employers on the action they should take where discrimination has been found.  The tribunal recommendations can be aimed at reducing the effect of discrimination on either claimants (as at present) or the wider workforce (which is new).  There is however, currently no sanction for employers failing to follow a recommendation that does not relate to the claimant in a case.

Compensation for successful discrimination claims will continue to be unlimited, meaning that employers more than ever, need to ensure that they are abreast of the Act.