Most of the provisions of the Equality Act 2010 (the Act) came into effect from the beginning of October 2010. The Act consolidates all the existing anti-discrimination legislation, i.e. the legislation banning discrimination (direct and indirect) on the grounds of sex (including equal pay), race, disability, religion or belief, sexual orientation and age. The Act applies to England, Wales and Scotland but not to Northern Ireland.
Explains Tar Tumber of Workplace Law Group:
“The Equality Act 2010 distils and extends existing legislation in order to provide a more consistent and effective legal framework for preventing discrimination.”
Its key provisions include the following:
- Harmonisation and extension of discrimination law. The prohibition in directly or indirectly discriminating ‘because of a protected characteristic’ will cover age, disability, sex, gender reassignment, sexual orientation, race, religion or belief and, in many but not all instances, marriage and civil partnerships. Disability-related discrimination will be replaced with a prohibition on discriminating against a disabled person by treating them unfavourably where that treatment is not a proportionate means of achieving a legitimate aim.
- Discrimination by association or based on perception. The ban on discrimination by association will be extended to protect spouses, partners, parents and carers who look after a disabled person or older relative, from discrimination.
- Pre-employment health questionnaires. This new provision prohibits employers asking job applicants questions about their health and whether they have a disability.
- Positive action in recruitment and promotion. If this provision is brought in, it would enable employers to pick someone for a job from an under-represented group when they have the choice between two or more applicants who are ‘as qualified’ as each other – but they must not have a policy of doing that in every case.
- Equal pay. The Act incorporates provisions to cover existing equal pay and sex discrimination law, with the aim of reflecting key decisions in equal pay case law and avoiding any gap or overlap between provisions.
- Recommendations by Tribunals. The Act aims to widen Tribunals’ powers to enable wide-ranging recommendations to be made applying across the workplace, such as re-training staff.
- Specific duties for public bodies to adhere to. Ensuring equal opportunities for all backgrounds within the community.
Types of discrimination: some definitions
Direct discrimination occurs when someone is treated less favourably than another person because of a protected characteristic they have or are thought to have (see perceptive discrimination right), or because they associate with someone who has a protected characteristic (see associative discrimination below).
Associative discrimination already applies to race, religion or belief and sexual orientation. Under the Act, associative discrimination is now extended to cover age, disability, gender reassignment and sex. This is direct discrimination against someone because they associate with another person who possesses a protected characteristic. For example, someone is bypassed for promotion because their manager is aware they have a dependent who is disabled and it’s believed the employee will be too busy looking after their dependent to concentrate on the role. This would be discrimination against the employee because of their association with the disabled person.
Perceptive discrimination already applies to age, race, religion or belief and sexual orientation and is now extended to cover disability, gender reassignment and sex. This is direct discrimination against an individual because others think they possess a particular protected characteristic. It applies even if the person does not actually possess that characteristic. For example, someone is denied an opportunity because they look much younger than they actually are; this could be discrimination on the perception of a protected characteristic, in this case age.
Indirect discrimination already applies to age, race, religion or belief, sex, sexual orientation, marriage and civil partnership and is now extended to cover disability and gender reassignment. Indirect discrimination can occur when a condition, rule, policy or even a practice in the company applies to everyone but particularly disadvantages people who share a protected characteristic. Indirect discrimination can be justified if the employer can show that it acted reasonably in managing its business, i.e. that it is ‘a proportionate means of achieving a legitimate aim’.
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 for that individual’. Harassment applies to all protected characteristics except for pregnancy and maternity, and marriage and civil partnership. Employees will now be able to complain of behaviour that they find offensive, even if it is not directed at them, and the complainant need not possess the relevant characteristic themselves. Employees are also protected from harassment because of perception and association.
Third party harassment already applies to sex and is now extended to cover age, disability, gender reassignment, race, religion or belief and sexual orientation. The Equality Act makes employers potentially liable for harassment of employees by third parties, such as customers or clients. However, the employer will only be liable when harassment has occurred on at least two previous occasions, the employer is aware that it has taken place, and has not taken reasonable steps to prevent it from happening again.
Victimisation occurs when an employee is treated badly because they have made or supported a complaint or raised a grievance under the Equality Act, or because they are suspected of doing so. An employee is not protected from victimisation if they have maliciously made or supported an untrue complaint.
The Equality Act will continue to protect the same groups that are protected by existing discrimination legislation, including:
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Religion or belief
- Sexual orientation
However, these will now be called ‘protected characteristics’.