The main provisions of the Equality Act 2010 come into force today, 1 October 2010. The Act harmonises and replaces previous discrimination legislation and provides a "one stop shop" for discrimination law going forward.
As a general rule, employers' obligations under the Act remain largely the same as under the old laws. There are some key differences to be aware of, although several of the more controversial provisions of the Act have been postponed while the Government considers how best to implement them. In this special e-bulletin we set out what's coming into force today, which issues have been postponed and what steps employers should be taking now.
What's coming into force on 1 October?
The provisions of the Equality Act that will be of interest to employers and come into force on 1 October include the following:
- a new definition of "protected charateristics", which is short-hand for referring to unlawful discrimination on any of the grounds of age, disability, sex, race, religion or belief, sexual orientation, gender reassignment, marriage and civil partnership and pregnancy and maternity. The definition of gender reassignment is also changed by removing the requirement for medical supervision;
- the provisions prohibiting discrimination in the workplace and the framework of protection against discrimination in services and public functions, premises, education, associations, and transport; •the prohibition of direct discrimination, which is less favourable treatment because of a protected charateristic. This includes protection for individuals discriminated against because they are associated with someone who has a protected charateristic or because they are mistakenly perceived to have a protected characteristic;
- the prohibition of indirect discrimination, where a provision, criterion or practice is discriminatory in relation to a protected characteristic, including, for the first time, indirect disability discrimination;
- the new protection from “discrimination arising from disability”, which is unfavourable treatment because of something connected with an individual's disability;
- the duty to make reasonable adjustments where a provision, criterion or pratice or a physical feature puts a disabled employee at a disadvantage and the duty to take reasonable steps to provide an auxiliary aid where a disabled person is put at a substantial disadvantage without it;
- the prohibition of harassment related to most protected characteristics (the exceptions being pregnancy and maternity and marriage and civil partnership). This will, as with direct discrimination, also protect against harassment because of perception or association. Employees can now also claim harassment even if the offensive behaviour is not directed at them and they do not themselves possess the relevant protected characteristic;
- the extension of protection from third party harassment to all protected characteristics (other than pregnancy and maternity and marriage and civil partnership);
- the prohibition of victimisation because an employee has made or supported a complaint or raised a grievance under the Equality Act (or previous discrimination legislation); •the provisions limiting the circumstances in which an employer can ask health-related questions before making a job offer. It will only be possible to do so where the information is required to decide whether an applicant can carry out a function that is intrinsic to the job they are applying for or to decide whether any reasonable adjustments to the selection process are required for that person;
- the provisions limiting an employer's right to impose pay secrecy. These provisions protect employees against victimisation because they have either asked for or given information about pay, so long as the purpose of seeking or giving the information is to discover whether there is any pay discrimination. Contractual terms that seek to restrict an employee disclosing or asking for such information will also be unenforceable;
- the provisions allowing hypothetical comparators for direct gender pay discrimination claims; and
- the new powers for employment tribunals in discrimination cases to make recommendations which benefit the wider workforce.
What is not coming into force on 1 October?
The Government is still considering the implementation of the following provisions and announcements will be made in due course:
- the new public sector single equality duty, which is intended to come into force in April 2011 and is currently the subject of a consultation. For more information listen to the September edition of Employment News;
- positive action in recruitment and promotion; •dual discrimination, allowing a discrimination claim to be brought on the basis of two combined protected characteristics e.g. a claim that an individual faced discrimination because she was a black woman;
- the gender pay report provisions that would require private sector employers with 250 or more employees to publish their gender pay gap data on an annual basis; and
- the socio-economic duty on public authorities.
Practical steps for employers
- Brief managers about the changes brought in by the Act.
- Review employment policies and diversity statements and update as necessary so that they reflect the new definitions and protections.
- Review and update training materials and courses.
- Review any use of pre-employment health questionnaires or requests for information about health and assess whether their use can be continued or whether changes may be required.
- Policy and practice on sickness absence should be reviewed and assessed taking into account the new disability provisions.
- Consider the use and enforcement of any confidentiality provisons that relate to pay.
- Carry out a risk assessment in relation to potential exposure of staff to third party harassment (and vice versa) and review and update policies and training as required.