Next month we see the introduction of the Equality Act 2010. The intention of the Act is to bring together all the fragmented discrimination legislation which has been passed over the last 30 years but it also introduces some new provisions which employers need to be aware of. The Act introduces the concept of “protected characteristics” which correlate to the existing discrimination strands (with the exception to those contained in the Sex Discrimination Act).
Below are the main differences, from an employment perspective, which are due to come into force on 1st October 2010:
Direct discrimination – the definition of direct discrimination will apply where someone is treated less favourably “because of a protected characteristic”. This deliberately broad definition extends to associative and perceptive cases; where someone is discriminated against because of their association with a member of a protected group or because they are perceived to have a protected characteristic.
Indirect discrimination – this will now cover circumstances where someone is put at a disadvantage but also where they would be put at a disadvantage and applies to all protected characteristics.
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”. This means that harassment is now based on perception and association, as well as “on the grounds of” from the previous definition, ie employees will now be able to complain about behaviour that they find offensive even if it is not directed at them. Employers will also be liable for harassment by third parties in the workplace if they fail to take reasonably practicable steps to prevent the third party from harassing an individual in circumstances where they have been harassed on two previous occasions.
Victimisation – the definition is no longer based on less favourable treatment and now occurs when an employee is subjected to a detriment, such as being denied a training opportunity or a promotion because he or she made or supported a complaint or raised a grievance under the Equality Act 2010, or because he or she is suspected of doing so, or being about to do so.
Discrimination arising from disability – the Act has made it easier for someone to show they are disabled; if they have a mental or physical impairment which has a substantial and long term adverse effect on their ability to carry out normal day-to-day activities, which would include using a telephone, reading instructions. The Act includes a new protection; stating that it is discrimination to treat a disabled person unfavourably because of something connected with their disability.
Positive action – the Act allows an employer to take positive action if you think that employees or prospective employees who have a “protected characteristic” suffer a disadvantage connected to that characteristic.
Pre-employment questionnaires – the Act will limit the circumstances when you can ask a candidate about their health. Employers can only ask health-related questions 1) to decide whether you need to make any reasonable adjustments for the person for the interview process 2) to decide whether an applicant can carry out a function that is intrinsic to the job 3) to monitor diversity 4) to assist disabled people 5) to assure yourself that a candidate has the disability where the job genuinely requires the jobholder to have a disability.
Equal pay – a claim for ‘equal pay’ can be made in the absence of a comparator under the remit of direct sex discrimination where the treatment can be shown to be because of a person’s sex. For example where an employer says ‘I would pay you more if you were a man’.
Secrecy clauses – it will be unlawful to prevent or restrict your employees from having a discussion to establish if differences in pay exist that are related to protected characteristics.
What to do next: Check your policy:
Ensure the policy covers all nine ‘protected characteristics” in the Equality Act 2010. These are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
State that is unlawful for staff to discriminate directly or indirectly, or harass customers or clients because of the protected characteristics of disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex, and sexual orientation in the provision of goods and services.
Make clear that perceptive and associative discrimination are covered in the Equality Act (the exemption of harassment because of marriage and civil partnership, and pregnancy and maternity).
Ensure your policy covers third-party harassment where the harassment is related to a protected characteristic (although this does not cover harassment because of marriage and civil partnership, and pregnancy and maternity), by third parties such as clients or customers.
Update your definitions of victimisation and harassment to conform to the new Equality Act definitions.
If you have a topic that you’d like us to cover in a future update, please let us know by emailing us at Adviceline@vizualhr.com.
The information contained above is for guidance only and represents our understanding of employment law and employee relations issues as at 4th October 2010. VizualHR cannot be held responsible for any action or inaction taken in reliance upon the contents. Specific advice should be sought on any individual matter.
