The Equality Act 2010 brings together existing legislation preventing discrimination on grounds of age, disability, sex, gender reassignment, sexual orientation, race, religion or belief, and marriage and civil partnerships into a single piece of legislation. The aims of the Act are firstly to harmonise current legislation, secondly to strengthen protection in some areas, and lastly to impose a duty on public sector bodies to promote equality generally.

But has anything really changed and, if so, what changes do you need to make?  

Harassment by third parties

Under the old legislation, employers were potentially liable for harassment of employees by third parties for sexual harassment and harassment on grounds of sexual orientation only. However, under the Act, employers will be liable for third party harassment of employees in relation to the relevant protected characteristic of age, disability, gender reassignment, race, religion or belief, sex and sexual orientation.

A person harasses another if they engage in unwanted conduct related to a relevant protected characteristic, or unwanted conduct of a sexual nature and the conduct has the purpose or effect of:

  •  Violating that person’s dignity.
  •  Creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.

In addition, a person harasses another if they engage in unwanted conduct of a sexual nature or related to gender reassignment or sex, with the above purpose or effect; and, because of their rejection of or submission to the conduct, that person treats the other less favourably than they would treat them if they had not rejected or submitted to the conduct.

Employers will be liable if:

  • The employee has been harassed on at least two previous occasions, either by the same person or different people.
  • The employer is aware that the harassment has taken place.
  • The employer has not taken reasonable steps to prevent the harassment happening again.

ACTION:  Ensure that any third parties such as clients, customers and contractors are notified that harassment of an employee is unacceptable.

ACTION: Ensure that partner organisations and suppliers have adequate policies on equal opportunities and dignity at work.

Pre-employment health questions

The Act contains a new provision that is designed to protect disabled candidates from pre-employment discrimination. Employers will be prohibited from asking applicants questions about their health and whether they have a disability prior to them being offered a job or being placed in a pool of successful candidates for subsequent vacancies.

However questions can be asked to:

  • Ascertain whether an applicant will be able to comply with the interview or selection process and whether any adjustments will need to be made.
  •  Ascertain whether an applicant will be able to carry out any “intrinsic” functions of the job.
  • Monitor diversity.
  • Support positive action in employment for disabled people.  

If an employer who asks health questions then rejects the applicant, the applicant can bring a disability discrimination claim and the burden of proof is on the employer who must show that it did not discriminate.

ACTION: Review application forms and recruitment processes to comply with these restrictions, and consider whether any health or disability questions are linked to the job.

Disability

The definition of disability is still “a physical or mental impairment which has a substantial and long-term adverse effect on the ability to carry out normal day-today activities”. However the list of specified capacities such as mobility or manual dexterity, etc, no longer applies.

Discrimination arising from disability

Along with the established prohibition on direct discrimination, the Act brings in a new claim of discrimination “arising from” disability. Employers are prohibited from treating a disabled person unfavourably because of something arising from their disability unless:

  • The treatment is a proportionate means of achieving a legitimate aim.
  •  The employer did not know, and it was reasonable for the employer not to have known, that the person had the disability.

Importantly, the disabled person does not have to establish that they were treated less favourably than a comparator.

Discrimination by association or perception

The Act protects not only the person having the protected characteristics, but also outlaws discrimination against anyone who receives less favourable treatment because of their association with that person. For example, a spouse or carer should not be treated less favourably because they care for an elderly or disabled relative.  

The Act also prohibits “perceptive” discrimination ie where someone is perceived as having a protected characteristic even if this is not in fact the case. For example, it protects a male job applicant who has a name that is commonly used as a woman’s name, and who is discriminated against on the grounds that the employer thinks he is female.

Protection of transgender employees

The definition of transgender is widened to include those who are proposing to undergo, as well as those undergoing or have undergone sex reassignment. It will also protect those who choose to live permanently as a member of the opposite sex. However, it is likely that an employee will need to provide some evidence of a genuine intention to undergo sex reassignment. It will not be enough for a person to say “I propose to do this”.

ACTION: Be aware that an employee who is intending to undergo the process of sex reassignment or who is living as a member of the opposite sex can bring a claim of discrimination.  

ACTION: Consider amending your equal opportunities policy so that your employees are aware that if they are proposing to undergo sex reassignment they should advise HR at the earliest possible opportunity.

Unenforceability of pay secrecy clauses

A clause that restricts someone from disclosing information about the terms of their work is unenforceable if that person makes or seeks to make a “relevant pay disclosure”.

A “relevant pay disclosure” is defined as one made for the purpose of finding out whether there is a connection between pay and having (or not having) a particular protected characteristic.

Therefore pay secrecy clauses are still possible but may be unenforceable should an employee seek to establish whether they may have, for example, an equal pay claim under current equal pay protection.  

Protection of transgender employees

The definition of transgender is widened to include those who are proposing to undergo, as well as those undergoing or have undergone sex reassignment. It will also protect those who choose to live permanently as a member of the opposite sex. However, it is likely that an employee will need to provide some evidence of a genuine intention to undergo sex reassignment. It will not be enough for a person to say “I propose to do this”.

ACTION: Be aware that an employee who is intending to undergo the process of sex reassignment or who is living as a member of the opposite sex can bring a claim of discrimination.

ACTION: Consider amending your equal opportunities policy so that your employees are aware that if they are proposing to undergo sex reassignment they should advise HR at the earliest possible opportunity.

Unenforceability of pay secrecy clauses

A clause that restricts someone from disclosing information about the terms of their work is unenforceable if that person makes or seeks to make a “relevant pay disclosure”.

A “relevant pay disclosure” is defined as one made for the purpose of finding out whether there is a connection between pay and having (or not having) a particular protected characteristic.

Therefore pay secrecy clauses are still possible but may be unenforceable should an employee seek to establish whether they may have, for example, an equal pay claim under current equal pay protection.

  •  Review your communication and working arrangements with customers, suppliers and partners to ensure that employees are protected against third party harassment.
  •  Ensure your employees are aware of flexible working policies and the possibility of indirect discrimination claims being made for those protected by the associative discrimination provisions.