The long overdue modernisation of discrimination legislation is complete and the Equality Act 2010 is now Law.

The majority of the Act’s provisions came into force on 1 October 2010.

Key aims
The aims of the Act are stated to be:-

• Strengthen and extend discrimination protection
• Harmonise and consolidate existing discrimination legislation
• Increase pay transparency

Discrimination

The Act’s key discrimination provisions include:-

• Protection against discrimination remains on the grounds of age, disability, gender re-assignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. These are now collectively known as "protected characteristics".
• Disability discrimination - direct discrimination and the duty to make reasonable adjustments remain. However, the Act introduces two new types of disability discrimination:
  
  Discrimination arising from disability: This replaces the now largely redundant disability - related discrimination. Discrimination arising from disability protects a disabled person from less favourable treatment which arises in consequence of their disability. Employers can justify discrimination arising from disability by showing it is a “proportionate means of achieving a legitimate aim”. Importantly, if an employer can establish that it did not know (and could not reasonably have been expected to know) that an individual has a disability, it is not caught by the provisions of the Act.
  
  Indirect discrimination: This is a new provision in which Claimants will need to establish that those who share their disability are also adversely affected by the application of an Employer’s “provision, criterion or practice”. As with all indirect discrimination claims, employers can justify indirect discrimination if it acts proportionately.

Perception and association

• Employees were, prior to the Act, already afforded limited protection if they were associated with someone with certain protected characteristics or if they were wrongly perceived to have some of the protected characteristics. This protection is extended by the Act to all protected characteristics except marriage/civil partnership and pregnancy/maternity. This means, for example, individuals are protected if they care for someone who has a protected characteristic (for example, a disabled child or an elderly parent) or if they are wrongly perceived to have a protected characteristic. Claims based on association and perception can be brought in relation to direct discrimination and harassment only.

Harassment

• A uniform test of harassment will apply to all of the protected characteristics (with the exception of marriage/civil partnership and pregnancy/maternity).
  
  The Act changes the way harassment is defined to being “related to” the protected characteristic. It means in practice that employees will be able to complain of behaviour they find offensive even if it is not done directly to or about them. For example, if an employee overhears and is offended by a joke mocking people with a protected characteristic, this could amount to harassment of that employee. Importantly, the change in the definition also means that the person to whom the comments are directed need not even possess the protected characteristic provided the harassment is related to it. An example of this would be somebody who was being teased for being a transsexual, even though they were not and everyone knew that they were not.

Gender Re-assignment

• The Act extends protection to transsexuals who are committed to living in their non-birth gender. It also covers those who are proposing to undergo, or in the process of undergoing gender re-assignment, even if they are not undergoing medical supervision or intervention.

Harassment by a third party

• Protection is extended to all protected characteristics (except marriage/civil partnership and pregnancy/maternity). The three strikes rule remains. Harassment has to have occurred on at least two other occasions (but not necessarily by the same person) and the employer must know about it. The defence remains if an employer can demonstrate that it took reasonable steps to prevent the discrimination.

Indirect discrimination

• The Act changes definition of indirect discrimination allowing an individual to claim if a “provision, criterion or practice” of the employer deters a candidate from applying for a job because of their protected characteristics.

Pay transparency

Key provisions in the Act include:-

• Secrecy clauses are not “banned” and there may remain good reasons to keep secrecy clauses for those who wish to deter idle tea-break chat about pay. However, any attempt to discipline or victimise employees who disclose or discuss pay with colleagues or trade union representatives will be unlawful under the Act if those involved are having a relevant pay disclosure. The discussion will be a relevant pay disclosure if its purpose is to determine whether pay is linked to any of the protected characteristics. In reality, many employees who discuss pay do so to check that they are being treated fairly and as a result are unlikely to comply with the requirements of the Act. In practice, however, if an employer is facing a claim related to a discussion, it could be difficult to prove that the conversation was not in some way linked to a protected characteristic.

Equal Pay Act

• The Act incorporates the Equal Pay Act provisions as amended by the ever emerging case law of recent years. The Act’s provisions recognise that it will always be a legitimate aim for an employer defending a claim for equal pay if the long term objective is to reduce the inequality between men and women’s pay. This means, in theory at least, defences such as pay protection can amount to a material defence although employers will still be required to demonstrate that they have acted proportionately.

Direct Sex Discrimination in relation to contractual pay

• The Act introduces a new type of claim where there is evidence of direct sex discrimination in relation to contractual pay. Unlike equal pay claims, an individual can now use a hypothetical comparator to bring a claim based on contractual pay. In practice, Tribunals are likely to use their tried and tested methods of inference to determine whether discrimination has occurred. As such, this opens up considerably the ability of a woman to bring an equal pay claim based on a hypothetical comparator through the back door. The Act does not permit indirect pay discrimination claims based on contractual pay where there is no actual comparator.

Recruitment Issues

• The prohibition on pre-employment health questions is a new and much discussed addition to the Act. Employers will not be permitted to ask pre-employment health questions before a candidate is offered the job. The Act provides no individual remedy where an employer asks a pre-employment question before the job offer stage provided it does not rely on that information to discriminate against a disabled job applicant. Instead, the Equality and Human Rights Commission (EHRC) may bring enforcement proceedings against employers who routinely ask such questions. If employers prematurely ask health related question and do not take the application further, the onus will be on the employer to prove there was no discrimination. In practice, this is likely to prove difficult.
• There are limited exceptions when employers may ask pre-employment health questions before the offer stage. These includes, in order to make reasonable adjustments for the interview, to find out whether a candidate is able to undergo an assessment for the job, to monitor for diversity, or to assess whether a candidate is able to perform the intrinsic functions of the job.
• Asking questions about health after a job offer, or making a job offer conditional upon a satisfactory medical, is not directly prohibited under the Act. The situation remains as it is currently:-
  
  Employers will not be able to directly discriminate on the grounds of disability and will be expected to make any adjustments that are reasonable to a role or the premises to accommodate a candidate’s disability.

Positive action

• Employers may already take measures to train or encourage underrepresented groups to apply for vacancies but there is no legal obligation to do so. The Act enables employers to continue to do this by taking proportionate measures to overcome perceived or actual disadvantages of any of the protected groups.
• In a recruitment context, this means an employer is permitted to take positive action and recruit from an underrepresented or disadvantaged group where two candidates are “as qualified” as each other, provided such action is proportionate. How an employer determines whether candidates are “as qualified” remains to be seen. A broad approach that includes an objective assessment of skills, qualifications, work experience and professional performance in relation to the job is encouraged.
• Any positive action must not be taken in accordance with the company policy or employment quota and employers must also be able to demonstrate that they reasonably think people who share that protected characteristic suffer a disadvantage connected with it. Taking positive action remains entirely voluntary.

Employment Tribunals

• The Act contains the power for Employment Tribunals to make recommendations that benefit not only the individual Claimant, but also the employer’s wider workforce. Recommendations could include:-
  
  The introduction of an Equal Opportunities Policy;
  Ensuring harassment policies are more effectively implemented;
  Setting up a review panel to deal with equal opportunities, harassment and grievances;
  Re-training staff;
  Making public selection criteria used for staff transfer/promotion
  
  There is no direct sanction if an employer fails to take on board the recommendations although bear in mind that they can be raised by a future Claimant in any similar discrimination proceedings.

What action should Employers be taking?

We at Temple Heelis LLP would make the following suggestions:-

• Ensure line managers are trained on the changes to the Act and that employees are aware of what is and what is not acceptable behaviour.
• Adopt a complete approach to discrimination on any basis.
• Harmonisation of definitions make it easier to bring discrimination claims going forward. Be aware that there may be legal technicalities that can get you out of a claim but do not rely on these in your approach to diversity issues.
• Familiarise your business with the new statutory codes published by the EHRC.
• Train managers or those involved in the recruitment process about what they should and should not be asking and when.
• Check how your organisation advertises for jobs. For example, if your advert states that the hours are full time or require a degree of flexibility or mobility, consider the potentially indirect discriminatory impact of those provisions on candidates. Adverts could also state that any job requirements are subject to any reasonable adjustments that could be made.
• When requesting medical opinions on an employee absent on long term sick leave, ask the doctor to consider specifically the provisions of auxiliary aids in relation to any reasonable adjustments that may facilitate an employee’s return to work.
• Assess your employee’s exposure to third party harassment. Consider whether you need to put measures in place to demonstrate you are taking reasonable steps to prevent it.
• Consider whether positive action may be something you wish to consider as an organisation. If you do, do not create a policy on it.

Temple Heelis LLP
January 2011