The Equality Act 2010

90% of the Equality Act 2010 (“the Act”) came into force on 1 October 2010 and the hyperbolic headlines followed.  Duncan Bannatyne labelled the Act “lunatic legislation” in the Daily Mail (4 October 2010), and according to the Daily Express on 11 October 2010 “Harman’s Equality Act outlaws humour”, funnily enough I haven’t come across that provision in the Act.

The Act draws together the different strands of UK anti-discrimination legislation to simplify and harmonise the legal position, and in some cases, extend the remit of UK organisations’ equality obligations.  Fears about the Act are unfounded. 

So what’s new?

The most significant changes for employers are as follows:

The definition of discrimination has been widened to include “perceptive” and “associative” discrimination.  This means it is no longer essential for a complainant to have a protected characteristic (e.g. age, race, sex, disability etc).  It will be enough if they associate with someone with a protected characteristic and suffer from that association, or if they are perceived (wrongly) to have a protected characteristic.

Pre-employment health questionnaires – step away from the shredder.  Contrary to the reports of many commentators, pre-employment health questionnaires have not been outlawed.  Generic questions about the health of a job applicant at pre-offer recruitment stage are prohibited, but the Act sets out permitted reasons for employers asking pre-employment health questions. 

Questions will not be prohibited where they are "necessary for the purpose of" any of the following:

• determining whether any adjustments need to be made to enable the applicant to participate in a recruitment exercise;
• establishing if the applicant will be able to carry out a function that is intrinsic to the work concerned;
• enabling an employer to identify suitable candidates for a job where there is an occupational requirement for the applicant to be disabled;
• to enable them to take positive action in employment for disabled persons; and
• diversity monitoring.

Disability

Protection from indirect discrimination has been extended to cover disability.  So where a provision applies equally to disabled and non-disabled staff, but it adversely affects those individuals with the type of disability suffered by the complainant, it will potentially be discriminatory. 

A new concept of “discrimination arising from disability” has been introduced.  So if, for example, an employee who has been absent for nine months because of a disability related illness is dismissed, he/she can challenge the dismissal as being discriminatory even if the employer would always dismiss someone after nine months absence, regardless of whether or not they were disabled.

Third party harassment

Harassment by non-work colleagues (e.g. customers, clients) on discriminatory grounds can give rise to legal liability for an employer if the complainant suffered such harassment on at least two occasions.  To defend such a claim the employer must be able to show that it took reasonable steps to prevent the third occasion of harassment occurring.

Pay secrecy

Contrary to some reports, pay secrecy clauses have not been banned.  It will be unlawful to discipline an employee for requesting pay details from a colleague or providing pay details to a colleague if the pay discussion falls within the ambit of the Act i.e. where such details have been requested or provided with a view to establishing whether any differential in pay is discriminatory.  Employers may continue to include pay secrecy clauses in contracts/policies for their deterrence value, however the limitations on enforcing them must be appreciated.

Some measures contained in the Act are not being brought into force at the current time.  These include:

• The concept of ‘dual discrimination’ – the ability to bring a claim of combined discrimination, whereby employees will be able to bring discrimination claims based on a combination of two protected characteristics (e.g. age and sex);
• Positive action in recruitment and promotion, permitting employers to select candidates for recruitment or promotion on the basis of a protected characteristic;
• Gender pay gap information, requiring employers with 250 or more employees to report on the disparity between what male and female employees are paid.

The chances are, employers’ values and policies will already embrace the spirit of the Act.  The changes are few, and technical in nature.  So to conclude, don’t panic, take note of the recommendations below, and if still in any doubt, talk to us.

• Review your policies i.e. Equal Opportunities Policy, Bullying and Harassment Policy, Sickness Absence/Capability Policy to ensure that they are consistent with the new provisions relating to discrimination under the Act
• Review any use of pre-employment health questionnaires or application forms and assess whether their use can be continued or whether the questionnaire/form needs to be revised.
• Consider the use and enforcement of any confidentiality provisions that relate to pay.
• Template compromise agreements should be amended to include reference to claims under the Equality Act 2010. 

For further information, contact Melissa Edmond, Solicitor specialising in Employment Law on 01227 763939.