*Steve Tullock

8th December 2011

The Equality Act 2010What changes?

Background

The Equality Act repeals most of the existing discrimination legislation

It condenses nine pieces of legislation into one single Act

Received royal assent 8 April 2010

Staged implementation from October 2010

Protected characteristics

agedisabilitygender reassignmentracereligion or beliefsexsexual orientation marriage and civil partnershippregnancy and maternity

Discrimination

Employer liable for…

AND employees can be personally liable for their own actions

Own actions

Some employee

actions

Some 3rd

party actions

Who is liable?

Discrimination

equality law has been broadened

while others have remained the same

with some new definitions added

Direct Discrimination

no change

occurs when someone is treated less favourably than another person because of a protected characteristic

Discrimination by association

has been extended

this is direct discrimination against someone because they associate with another person who possesses a protected characteristic

Discrimination by perception

has been extended

this is discrimination against an individual because others think they possess a protected characteristic.

it applies even if the person does not actually possess that characteristic

Indirect Discrimination

has been extended

occurs when a company has a rule, policy or practice which applies to everyone but particularly disadvantages people who share a protected characteristic

indirect discrimination can be justified if it is a “proportionate means of achieving a legitimate aim”

Harassment

has changed

“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”.

Third party harassment

has been extended

employers can potentially be liable for harassment of employees by people (third parties) who are not employees of the company (e.g. customers).

liability arises 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

has changed

victimisation occurs when someone is treated badly because they have made a complaint or raised a grievance under the Equality Act.

there is no longer a need to compare treatment of an alleged victim with that of a person who has not made or supported a complaint under the Act.

Other key changes

Discrimination arising from a disability

New type of discrimination

Disabled person is treated unfavourably, not because they have a disability (which would be direct discrimination), but because of something that is connected with their disability; and

That treatment cannot be objectively justified as being a proportionate means of achieving a legitimate aim.

Pre-employment health questionnaires

Applies to questions asked about health or disability before offering employment

The Act prohibits these questions but…there are exemptions

EHRC can take action

Jobseekers are still able to make claims

Gender reassignment

New definition

No longer requires a person to be under medical supervision for protection

Positive action

employers can take positive action if they think that employees or job applicants who share a protected characteristic suffer a disadvantage connected to that characteristic

Positive action recruitment – currently on hold

Allows a protected characteristic to be taken into account during the recruitment process

When the selection assessment rates them as equal

Can choose to recruit or promote because of the protected characteristic

Extension of employment tribunal awards

Previously tribunal recommendations only applied to claimants involved

Employers now required to act on the recommendations of the employment tribunal for the benefit of the whole workforce

Failure to do so can be used as evidence in subsequent tribunal cases

Equal pay and pay secrecy

The framework for equal pay remains the same

A claim of direct pay discrimination can be made even if no real person comparator can be found

The Act makes it unlawful to prevent or restrict employees from having a discussion to establish if differences in pay exist that are related to protected characteristics

Exemptions and Justification

Occupational requirement

Religion or belief

Organised religion

Age discrimination

How Acas can help

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