The Equality Act 2010 (“the Act”) has been heralded by the Equality Human Rights Commission (EHRC) as a “once in a generation chance to rationalise and strengthen…equality legislation”. Its main aims are to bring all discrimination legislation ‘under one roof’ and to ensure a single approach to the law so that all “protected characteristics” (that is age, disability, sex, race, sexual orientation, religion or belief, gender reassignment, pregnancy and maternity) have common concepts. However, it also introduces a number of new concepts.
The main changes can be summarised as follows:
• harmonising the definition of indirect discrimination across all protected characteristics. This has largely been done in the employment field but currently there is no such protection on the basis of gender reassignment or disability;
• standardising the concept of justification in discrimination cases so that employers can defend indirect discrimination (across all protected characteristics) and direct age discrimination claims if their conduct can be shown to be a “proportionate means of achieving a legitimate aim”;
• there will be no need for a claimant to have a comparator in victimisation cases. He will simply have to prove that he suffered a “detriment” as a result of undertaking a protected act;
• direct discrimination will cover “associative” and “perceptive” cases by replacing the words “on grounds of” with the word “because”. This means that there will be protection, for example, for those affected by discriminatory conduct where the person is associated to someone with a protected characteristic e.g. a carer for a disabled person as was the case in Coleman -v- Attridge Law;
• broadening the definition of harassment to cover “associative” and “perceptive” cases and to make employers liable for harassment by third parties (that is, those who are not employees of the employer);
• permit claims of “combined discrimination” where the basis of the discrimination is the interaction of two protected characteristics, for example, age and sex. This will only apply to direct discrimination claims;
• introducing an “occupational requirement” defence across all areas of discrimination, replacing the current “genuine occupational requirement” (GOR) and “genuine occupational qualifications” (GOQs) defences;
• introducing the concept of positive discrimination to allow employers to recruit or promote those from under-represented groups where they have a choice between two or more equally qualified candidates;
• reversing the effects of the House of Lords decision in London Borough of Lewisham -v- Malcolm so that employees will have better protection in disability related discrimination cases;
• prohibiting health questions being asked pre-employment apart from in limited circumstances, for example, to establish whether the candidate can do the job or in order to make reasonable adjustments;
• limiting the enforceability of clauses which prevent employees from revealing their pay to colleagues or former colleagues and protecting them against victimisation after having made such a disclosure;
• the introduction of a power to require employers with 250 or more employees (but not certain public authorities) to publish information about the differences in pay between the sexes;
• remove the requirement that a person must be under medical supervision to be protected under the gender reassignment provisions; and
• permitting tribunals to make recommendations in discrimination cases that benefit the wider workforce and not just the claimants.
There was speculation as to whether the Coalition Government would retain the whole of the Act following the General Election. However, it has confirmed its commitment to the Act and that its main provisions will come into force in October 2010. The provisions relating to combined discrimination and some specific public sector duties will be implemented in April 2011. If retained, the controversial private sector gender pay reporting provision will take effect in 2013. However, there is no indication of when the positive action provisions will be implemented.
To assist employers in preparing for the Act, ACAS has recently published guidance – ‘The Equality Act: What’s New for Employers?’ It is not a formal code of practice but aims to help employers identify which of their policies and procedures they need to review. We are still awaiting the codes of practice from the EHRC that will accompany the Act.
The Act will strengthen equality law. However, it is likely to lead to increased litigation as claimants will want to test the new concepts such as “combined discrimination” and “associative” claims. Employers should review all policies and procedures to ensure that they will be compliant.
Magrath LLP will be running a mock employment tribunal in Central London in the Autumn, covering some of the concepts introduced by the Act. If you would be interested in attending please email firstname.lastname@example.org.