Most of the provisions of the Equality Act 2010 come into force today, 1 October. Key changes include:
- new claims for direct discrimination because an individual is perceived to have, or is associated with someone who has, a protected characteristic
- new claims for harassment because an individual is perceived to have, or is associated with someone who has, a protected characteristic
- new claims for third party harassment
- new claims for indirect disability discrimination and discrimination arising from a disability
- new prohibition on pre-job offer generic health questionnaires
- new direct sex discrimination claim for same pay as hypothetical comparator
- pay secrecy clauses unenforceable in certain situations
- tribunals to decide when employees working abroad can bring discrimination claims.
Transitional provisions have at last been published. Claims concerning acts occurring wholly prior to 1 October must be brought under the old regime. Claims about continuing acts straddling 1 October can be brought solely under the Equality Act (including in relation to the pre-October period) if the act was unlawful under the old regime as well as the Equality Act.
The immediate impact for employers is to ensure they:
- update procedures including recruitment procedures, absence control policies, performance policies, procedures for dealing with flexible work requests, and equal opportunities and harassment policies
- train managers and staff, particularly on changes in recruitment and harassment
- consider auditing their risk to equal pay claims
- consider whether to remove pay secrecy clauses
- update standard compromise agreements (and any other standard documents referring to the current legislation, such as warranties in business sale agreements) with the new statutory references. Note that, due to a drafting error, a literal interpretation of the Act would make it impossible to agree a valid compromise contract to waive discrimination claims. The Act provides that any person acting for "a party to the contract or complaint" cannot be an independent adviser (required to advise the employee on the rights being waived). Literally "a party" could include the employee himself as well as the employer. This is a clear error and the tribunals should hopefully find no difficulty in interpreting it to avoid absurdity, ie as only referring to parties other than the employee.
The Act is supported by various regulations, statutory Codes and Guidance, and non-statutory guides, not all of which have been finalised in time.
Two new statutory question and answer forms (one for seeking information about a potential equal pay case and one for all other types of discrimination) are available instead of the old statutory questionnaires. It remains optional whether to use the forms. Employers should note that the time limits have changed: individuals can submit questions at any time before issuing a claim and within 28 days of bringing the claim. Answers should still be given within eight weeks, otherwise tribunals may draw an adverse inference.
The statutory codes to which tribunals must refer where relevant are not yet finalised and will not come into force until later on this year. The Government is also still consulting (until 31 October 2010) on revised statutory guidance on the definition of disability.
A Herbert Smith briefing on the Act, including a detailed checklist of steps for HR to take, is available for clients – click here to request a copy or to discuss your training needs.
The national minimum wage also changes from 1 October. The hourly rate increases to £5.93 for workers aged 21 (previously 22) and over, £4.92 for workers aged 18-20, £3.64 for workers aged 16 and 17 and £2.50 for apprentices aged under 19 or in the first year of their apprenticeship. The accommodation offset is now £4.61 a day.