BARRY SPEKER OBE DLSENIOR PARTNER

SAMUEL PHILLIPS LAW FIRMbarryspeker@samuelphillips.co.uk

16 and 23 NOVEMBER 2010

CIPD NORTH EAST BRANCHNewcastle Business School – Northumbria University

EQUALITY ACT 2010

Background:Discrimination Law Review and Equalities

Review 2005Fairness and Freedom: Final Report of Equalities

Review 2007Green Paper June 2007 A Framework for FairnessWhite Paper June 2008 A Framework for a Fairer

FutureEquality Bill introduced April 2009 with further

White Paper A Fairer FutureEquality Act Royal Assent 8 April 2010

KEY CHANGES

Extension of Definition of Direct Discrimination to cover “associative” and “perceptive” cases

Replace “on grounds of” with “because of” Harmonise definition of indirect discrimination across all

protected characteristics Harmonise justification in discrimination cases as “proportionate

means of achieving a legitimate aim Remove requirement for a comparator in victimisation cases Harmonise harassment to cover “associative” and “perceptive”

cases Permits positive discrimination Introduction of “combined” discrimination Ban on pay secrecy clauses Ban on pre-employment health questionnaires before a job offer is

made Allows equal pay claims to be brought as direct sex discrimination

claims obviating the need for an actual comparator GORs for all strands of discrimination Changes to victimisation

EQUALITY ACT 2010

Consolidates and harmonises existing law:The Equal Pay Act 1970The Sex Discrimination Act 1975The Race Relations Act 1976The Disability Discrimination Act 1995The Employment Equality (Religion of Belief)

Regulations 2003The Employment Equality (Sexual Orientation)

Regulations 2003The Employment Equality (Age) Regulations 2006Part 2 of the Equality Act 2006The Equality Act (Sexual Orientation) Regulations

2007

EQUALITY ACT – PURPOSE OF CODE OF PRACTICE

“The authoritative comprehensive and technical guide to the detail” of the Act

Replaces several existing codes and draws on case law and precedent

The code can be used in evidence and legal proceedings brought under the Act

Tribunals and Courts “must take into account any part of the code that appears to them relevant to any questions arising in proceedings”

IMPLICATIONS OF THE COALITION GOVERNMENT

Plan to “review employment and work place laws” Emphasis on family friendly policies System of flexible parental leave Extension of right to request flexible working to all employees Aim to promote equal pay and undertake a fair pay review in the

public sector Tackle unacceptable bonuses in the financial services sector New protection for whistleblowers in the public sector New right to form employee owned cooperatives Phase out the default retirement age Limit the application of the Working Time Directive Promote de-regulation and reduce red tape Review the Agency Workers Regulations Rein in the effect of TUPE Changes in the Employment Tribunal system and merging with

the Courts

EQUALITY ACT (Commencement No 4 Savings, Consequential, Transitional, Transitory and Incidental Provision and Revocation)

Order 2010

Brings majority of Act into force 1.10.10 but not• Socio-Economic Inequality Duty on Public

Authorities (s.1)• Dual discrimination (on 2 Protected Categories)

(s.14)• Requirement on private sector employers to

publish gender pay gap information (s.78)• Positive action in recruitment and promotion

(s.159)• The single public sector equality duty (s.149-157)

PROTECTED CHARACTERISTICS (s.4)AgeDisabilityGender reassignmentMarriage and civil partnershipPregnancy and maternityRaceReligion or beliefSexSexual orientation

BUT not genetic pre-disposition 0r Welsh-speaking or fatism or gingerism!

DEFINITION OF PROTECTED CHARACTERISTICS (s.5-12)

Broadly as before“Because of” not “on grounds of”Race including casteDisability need not involve effect of one or

more “specified capacities.”

DIRECT DISCRIMINATION

S13“A discriminates against B if, because of a protected characteristic, A treats B less favourably than he treats or would treat others.”

‘because of’ instead of ‘on the grounds of’ but no practical difference

Associative and perceptive discrimination are both covered within this definition

COMBINED DISCRIMINATION

S14(1)“A discriminates against B if, because of combination of two relevant protected characteristics, A treats B less favourably than A treats or would treat a person who does not share either of those characteristics.”

S14(2)Protected Characteristics :- age, disability, gender reassignment, race, religion or belief, sex , sexual orientation.

DISCRIMINATION ARISING FROM DISABILITY

S15(1)“A discriminates against a disabled person B if :- (a) A treats B unfavourably because of something

arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim”

(2) “.... does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had a disability”

DISABILITY: PRE-EMPLOYMENT QUESTIONNAIRES

s.60(1) A person (A) to whom an application to work is made must not ask about the health of the Applicant (B):-

[a] before offering work to B, or[b] where A is not in a position to offer

work to B before including B in a pool of Applicants from whom A intends to select a person to whom to offer work

PRE-EMPLOYMENT QUESTIONNAIRES s.60(6)

Questions may be asked if necessary for the purpose of:-

[a] establishing whether B will be able to comply with a requirement to undergo an assessment

or establishing whether to make a reasonable adjustment in connection with the assessment

[b] establish if B can carry out a function intrinsic to the job

[c] monitoring diversity in range of persons applying

[d] whether the work requires the person to have a particular disability

REINTRODUCTION OF INDIRECT DISABILITY DISCRIMINATION

S19(1)“A discriminates against another B if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.”

(2)a PCP is discriminatory if:-(a) “A applies, or would apply, it to persons with

whom B does not share the characteristic;(b) it puts, or would put, persons with whom B shares the

characteristic at a particular disadvantage when compared with persons with whom B does not share it;(c) it puts, or would put, B at that disadvantage; and(d) A cannot show it to be a proportionate means of

achieving a legitimate aim.”

DUTY TO MAKE REASONABLE ADJUSTMENTS

S20(3) - (4)Where a PCP or a physical feature puts a disabled

person at a substantial disadvantage, Employer to:-“take such steps as it is reasonable to have to take to avoid the disadvantage”

Employer to take reasonable steps to provide auxiliary aid to a disabled person who would otherwise be at a substantial disadvantage without one

Where this relates to the provision of information, A to provide the information in a form accessible to B.

POSITIVE ACTION

S158Act does not prohibit Employers from taking any action which is a proportionate means of achieving a legitimate aim of:-(a) overcoming/minimising a shared disadvantage;(b) meeting a shared need of those with a protected characteristic; or(c) enabling/encouraging participation in an activity

*NB Unclear whether Coalition Government will revoke these provisions.

POSITIVE ACTION: RECRUITMENT AND PROMOTION

S159(3)Employer may treat A more favourably in recruitment or promotion than B, where A has a protected characteristic but B does not

(4) ..... only if(a) A is as qualified as B to be recruited or promoted;(b) Employer does not have a policy of favourable treatment; and (c) It is a proportionate means of achieving a legitimate aim.

OCCUPATIONAL REQUIREMENTSReplace Genuine Occupational Requirements and General

Occupational Requirements

Schedule 9, Part 1(1)Must be a proportionate means of achieving a

legitimate aim No contravention of Act to apply requirement

(regarding sex, marital status, sexual orientation etc) if :-(a) for the purposes of organised religion; and(b) application is proportionate means of complying with doctrines of religion or to avoid conflict with strongly held religious convictions.

DISCLOSURE OF PAY INFORMATION

S77(1)A term that purports to prevent/restrict disclosure of pay information about the terms of a person’s work is unenforceable.

(2) A term that purports to prevent/restrict P from seeking disclosure of pay information from a colleague/former colleague is unenforceable.

EQUAL PAY

s.69 Defence of Material Factor[1] A sex equality clause in A’s terms has no effect in

relation to difference between A’s and B’s terms if the responsible person shows that the difference

is because of a material factor reliance on which:

[a] does not involve treating A less favourably because of A’s sex than the responsible person treats B, and

[b] if the factor within sub-section (2) is a proportionate means of achieving a legitimate aim

[2] Are persons A and persons of same sex at a particular disadvantage when compared with persons of the opposite sex doing work equal to A’s?

EQUAL PAY

No hypothetical comparators.There must be an identifiable colleague of the

opposite sex performing equal work

GENDER PAY REPORTING

S78“Regulations may require employers to publish information relating to the pay of employees for the purpose of showing whether ... There are differences in the pay of male and female employees.”

Employers with 250 + employees from 2011

*NB unlikely to come into force under new Coalition Government

PUBLIC SECTOR SOCIO-ECONOMIC DUTY

S1“when making decisions of a strategic nature about how to exercise functions, have due regard to the desirability of exercising them in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage.”

applies to Government Ministers and departments, Local Authorities, NHS Trusts

*NB Unlikely to come into force under Coalition Government

EMPLOYMENT TRIBUNAL: REMEDIES

S124a new power to make a “Recommendation” to obviate/reduce adverse effect on(a) the complainant (b) any other person.

Recommendations are not enforceable.

S124(7)failure to comply may result in increased award of compensation.

NATIONAL MINIMUM WAGE

Increases from 1 October: Standard (Adult) rate (workers over 21)

£5.93 (rising from £5.80) Development rate (workers aged between

18 and 20) £4.92 (rising from £4.83) Young workers rate (workers aged under

18 but above the compulsory school age who are not apprentices) £3.64 (rising from £3.57)

CONDUCT OF EMPLOYMENT AGENCIES AND EMPLOYMENT BUSINESSES (AMENDMENT) REGULATIONS 2010

In force from 1 October 2010Restructure the existing Regulations on obtaining

work seekers’ consent to terms before providing service

Modify the suitability checks that employment businesses and employment agencies must carry out on work seekers

Provide that advertisements for jobs no longer have to state whether the advertiser is an employment agency or an employment business but must state whether the position is permanent or temporary

Introduce 30 day cooling off period applicable to performers

NEW PROCEDURE FOR COT3

From 1 October 2010 new streamlined process to allow enforcement of un-honoured settlements

Employees can instruct a High Court Enforcement Officer to issue proceedings for a Writ of Fieri Facais

New Form N471A for use in the Courts

LEGISLATION ON HOLD OR UNDER REVIEW

Additional paternity leave and pay regulations were to come into force in April 2011

Agency Worker Regulations were to come into force on 1 October 2011

Vetting and barring scheme. This is to be remodelled

Right to request time off for training subject to consultation

Employment of children under review

FORTHCOMING CASES

Age Discrimination: Can an employer dismiss an employee to avoid paying enhanced pension?

“Woodcock –v- Cumbria Primary Care Trust”Can the buyer of a pre-packed business in

administration avoid the automatic transfer of employees?

“Olds –v- Late Editions LtdEmployment status: “Sham” contractual

documentation stating individuals are self-employed.

Appeal before the Court – “Autoclenz –v- Belcher and Others” and “Alstom Transport –v- Tilson”

Samuel Phillips Law Firm