As recently as only 30 years ago the term "employment lawyer" was a completely alien expression. However, since the United Kingdom's membership of the EU, in 1973, employment law - or labour law as it was once commonly known - has developed rapidly.
Long established employers will no doubt be all too aware that successive Governments have introduced a vast array of legislation concerning labour relations. The result of this is that employment law has become a separate field of its own within the legal sector.
The main reason that the field has developed so quickly is not only the Government's attempts to keep up with European Directives, but is also down to the rise of the Unions in the late 1970s. Since then, the powers that be have always sought to quell the angst of the unions and public opinion with new legislation to defeat discrimination and promote equality. The result of this is that employers have had to grapple with 116 different Acts of Parliament, Regulations and Codes of Practice when promoting equality within the workplace.
Finally, however, we now see an attempt to harmonise this legislation into one Act of Parliament - the Equality Act 2010. With some of the main provisions scheduled to come into force in October 2010, we look now to comment on some of its features and what employers can expect.
The Protected Characteristics
The Act attempts to merge discrimination and equality legislation together by fusing the main complaints, under the legislation, into categories called "protected characteristics."
The new Act will seek to ensure that people in employment, education, housing, service provision and public functions cannot be discriminated against on the basis of a protected characteristic. These characteristics include: age, disability, gender-reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
These characteristics will become the language of equality and the basis for discrimination from October. While, at first glance, this would seem quite a wide ranging list, there is nothing there that is not already covered by existing legislation. In fact, the only new characteristic that the Act may see implemented is the race characteristic may be extended to cover caste discrimination. The Act imbues the Government with the powers to do this should future research determine it to be necessary.
Employers will be relieved to know that because of this, their obligations will remain largely the same after October 2010.
One of the most important changes the Equality Act incorporates could also be noted as the most subtle - the change to the definition of direct discrimination.
Whilst the soon to be redundant legislation defined direct discrimination as: treat less favourably "on the grounds" of a protected characteristic, the new Act re-words the definition to read: treated less favourably "because of" a protected characteristic. The explanatory notes, published with the Act, justify this change by claiming that it "is designed to make [direct discrimination] more accessible to the ordinary user of the Act."
In essence, what this means is that the protected characteristic does not need to be the only or main reason for less favourable treatment. This could serve to make it easier for the individual to prove direct discrimination; however, he/she would also have to prove a causal link to show that the protected characteristic was an effective cause of the treatment.
Combined Discrimination: Dual Characteristics
Despite the depth of the previous legislation, the creators of the Equality Act noted a serious limitation. This was its inability to offer protection in situations where a Claimant was treated less favourably by reason of a combination of characteristics.
An example of a situation such as this would occur where a black woman was passed over for a promotion because the employer believed that black women are not competent in customer facing roles. Before the Equality Act 2010, the employee could not combine the characteristics of sex and race. Under the old legislation, the employer would have been able to defend the race allegations by pointing to the equal treatment of black men. The sex discrimination aspect of the claim could be defended by demonstrating that women were treated equally. Now, a Claimant can be successful by showing that the less favourable treatment was because of the combination alleged, as compared with how a person, who does not have either of the characteristics is treated. The protected characteristics which may be combined, from April 2011, are: age, disability, gender re-assignment, race, religion or belief, sex and sexual orientation.
Indirect discrimination occurs when a particular group is disadvantaged due to a protected characteristic. This has the effect of indirectly discriminating against any member in that group. The only defence to a claim for indirect discrimination is if the person applying the policy, criterion or practice ("PCP") can justify it by showing it has a legitimate aim.
The Equality Act has sought to strengthen provisions in previous legislation by seeking to increase uniformity of protection in relation to all the characteristics. It has sought to achieve this by applying the EU definition of indirect discrimination and replacing previous definitions in the Sex Discrimination Act 1975 and the Race Relations Act 1976. The result of this is that no further obligations will be imposed upon employers. Under previous legislation, employers already had a duty to avoid PCP's which put a particular group of people at a disadvantage, unless they could properly justify it. The new Act preserves this obligation and does not burden the employer any further.
What’s New for Employers?
ACAS has produced an in depth guide for employers entitled "The Equality Act - What's New for Employers". The guide covers the provisions which will become law in October 2010 and also provides employers with information as to how their obligations will change in different areas after the Act comes into force. The Act has introduced changes to positive action by employers to create a balanced work force; pre-employment health checks; equal pay; it has made it illegal for employers to stop employees speaking about their rates of pay and has extended Tribunal powers to eliminate discriminatory practices by employers.