Introduction
The Equality Act 2010 is now in force. It replaces previous legislation (such as the Race Relations Act 1976 and the Disability Discrimination Act 1995) and ensures consistency in what you need to do to make your workplace a fair environment and to comply with the law It is the single largest piece of anti-discrimination legislation to be created in this country.
When does it happen?
1 October 2010: The key provisions coming into force on this date are:
Protected characteristics – the grounds on which employees can be discriminated against;
The provisions that consolidate discrimination under each of its categories – direct discrimination, indirect discrimination, harassment and victimisation;
The parts of the act that prohibit employers from asking pre-employment health questions, except in limited circumstances; and
The provisions that restate and revise equal pay law.
April 2011: Likely to come into force next April are:
Public-sector equality duty – the obligation on public-sector employers to eliminate discrimination and promote equality; and
Dual discrimination provisions – the ability for employees to bring discrimination claims based on a combination of two protected characteristics.
Date to be confirmed- if at all: Due to the differing views of the new government changes to the act may result with regard to:
Positive action; these provisions permit employers to select a prospective candidate for recruitment or promotion on the basis of a protected characteristic.
Pay audits: ie employers’ reporting on the disparity between what men and women in their workforce earn.
What do these changes mean?
The Equality Act covers the same groups that were protected by existing equality legislation – age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership and pregnancy and maternity – but extends some protections to groups not previously covered, and also strengthens particular aspects of equality law.
The Act will protect individuals on the grounds of sex, race, age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, religion or belief (including lack of belief) and sexual orientation. These are called the ‘protected characteristics’.
The definition of gender reassignment has been broadened and disability changed slightly, making it easier for employees to fall within this definition.
Employees will not need to show that they themselves have a protected characteristic. Instead, if they can show they have been treated less favourably because they associate with someone who, for example, has a certain sexual orientation or is of a certain race, then this is potentially discriminatory
Furthermore, claims will also be able to be made on the basis of perception (even if it is mistaken) of a protected characteristic. So, for example, if an individual is not sent to client meetings because the employer thinks they are younger than they are, this is potentially discriminatory on the grounds of perception of age.
The Act will also prohibit the use of pre-employment questionnaires before a job offer is made. These should only be used in very limited circumstances and strictly to assess a candidate’s ability to perform an ‘intrinsic function’ of the job. However, employers will still be able to ask generic health questions once a job offer is made.
Employers should also be aware that they are potentially liable if their employees are harassed by people they don’t employ such as external suppliers or customers.
Do I need to make salaries public?
A further change being brought in by this Act is in relation to pay secrecy. If your employment contracts require employees to keep their own pay secret, the Act makes this requirement unenforceable, and as a consequence employers won’t be able to take action if an employee decides to share this information.
The aim of the Act is not to force employers to disclose the pay of individuals to other employees, but to increase transparency around pay in the workplace. Employers are being encouraged to take action to link equal work to equal pay to ensure employees are rewarded fairly for the work they do. By doing this employers will also protect themselves from a potentially costly and time consuming equal pay claim.
What should employers do?
As successful discrimination claims have unlimited financial liability, employers need to take notice of this new Act; Harwood HR recommends the following actions
Review your Equal Opportunities Policy and your contracts to make sure it covers the new provisions
Train your managers so that they clearly understand what constitutes discrimination, especially in areas around association and perception.
Re-issue your Equal Opportunities Policy, making it clear that your organisation will not tolerate acts that could be considered discriminatory.
As always Harwood HR are available to help you amend your policies and behaviours to reflect the new legislation,
