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What will the Equality Act 2010 mean for employees?

The Equality Act 2010 is a landmark piece of legislation that received royal assent on 08 April 2010 and most of its provisions will come into force in October 2010.  The premise behind the new legislation is to consolidate all existing strands of anti-discrimination law in order to make it simple and easier to understand.  Employees and Trade Unions should be aware that the new Act not only harmonises existing legislation, but also introduces new important rights for employees.

The grounds on which discrimination shall be unlawful by the Act are brought together and termed “Protected Characteristics”.  There are no new types of discrimination and so they remain as:  Age, Disability, Gender Reassignment, Marital and Civil Partnership Status, Pregnancy and Maternity, Race, Colour, Nationality, Ethnic Origin, Religion or Belief, Sex and Sexual Orientation.  The well known terms of current anti-discrimination legislation are preserved and have been extended across all the strands which include:  Direct Discrimination, Indirect Discrimination, Harassment and Victimisation.  This means there shall be for the first time provision for indirect disability discrimination.  The Act also broadens the definition of Direct Discrimination to include discrimination by association or perception.  The inspiration for this extension of the law was brought about through the Employment Appeal Tribunal’s decision in Coleman –v- Atteridge Law where it was held that the Disability Discrimination Act should be read as covering discrimination on the grounds of association with a disabled person.  Importantly, the Act also extends protection from harassment by third parties which existing legislation only protects on the grounds of sex related harassment, to all strands.  The Act also introduces changes to the Disability Discrimination Act in order to address the difficulties introduced by the House of Lords in the case of London Borough of Lewisham –v- Malcolm.

The new provisions include the following: 

• Protection for those who are discriminated against on the grounds of combination of age, disability, gender reassignment, race, religion or belief, sex or sexual orientation.  The Act therefore means that a person can raise a claim that they have been discriminated against because of the combination of Protected Characteristics.

• It will be unlawful for an employer to prevent their employee from discussing pay differences if they are seeking to establish that the differences are related to Protected Characteristics.  The Act also makes it unlawful for the terms in a Contract of Employment to prevent such discussions.

• It shall allow employers to take positive action if they believe employees who share a particular Protected Characteristic suffer a disadvantage connected to that characteristic, or if their participation in an activity is particularly low.

• It will limit the circumstances when an employer can ask a prospective employee health related questions before offering that individual a job.  Health related questions can be asked if they are to:  Determine whether reasonable adjustments are necessary; to decide whether a person can carry out part of a job that is intrinsic to it; for the purposes of monitoring diversity among job applicants; to determine that a candidate has a genuine disability where a disability is a requirement of that particular role.

• It shall provide an extension to existing equal pay legislation to provide that a worker can raise a claim of direct pay discrimination without the need to establish an actual comparator.

• It will increase the scope for Employment Tribunals to make recommendations that will benefit not only the Claimant but also the wider workforce.  An example of this might be an Employment Tribunal recommending that an employer retrain staff on particular equality measures.

The new Act is by far the single biggest piece of anti-discrimination legislation to be created in the UK.  While The Act draws together all existing strands of legislation it does attempt to deal with inconsistencies created by case law.  Employees and Trade Unions should familiarise themselves with the new Act in order to safeguard employees’ rights and facilitate their employment.