Anyone listening to the radio or watching the news on 1st October will have picked up on the fact that new discrimination legislation took effect at the beginning of the month. But will the Equality Act have as much impact on most people’s lives as the journalists might have suggested?
The Act brings together a lot of existing legislation and uses slightly different terminology - the grounds for discrimination such as race, sex, age or marital status are now known as “protected characteristics” – but it is the practical impact rather than the legal detail of the Act that will be of interest to the general public.
So what do you need to know about? For one thing employers are now prevented from asking job applicants about health (including any disability) before making a job offer except in limited specified circumstances such as to establish whether reasonable adjustments need to be made to allow the job applicant to undertake the role. The Act also puts in statutory form the right to claim “associative discrimination” and “perceptive discrimination”. The first of these makes clear that employees can claim that they have been discriminated against as a consequence of their association with someone else who has a protected characteristic, perhaps giving protection to the parent of a disabled child. The latter means employees will be able to claim they have been discriminated against as a consequence of the incorrect perception that they have a particular characteristic, for example where it is assumed a heterosexual employee is actually gay and is harassed as a consequence of that. Protection from “third party harassment” - in other words employees claiming they have been harassed at work, but by a member of the public or a client rather than a colleague – is also significantly extended by the Equality Act. There were already rules in place protecting employees from sexual harassment of this kind, but the Act extends this to include age, disability, gender reassignment, race, religion or belief and sexual orientation. Employers must take reasonable steps to prevent this sort of harassment from occurring.
The Government are still considering whether or when to implement some of the other provisions of the Act, including positive action on recruitment and promotion which would mean applicants with protected characteristics could be selected for jobs before other candidates who are equally qualified.
So have the press got it right? Partially. The Act is likely to impact on people’s lives, but perhaps not in the areas that have been focussed on such as pay secrecy clauses. The extension of harassment protection referred to above and the fact that disability discrimination claims will arguably be made easier as a result of some of the changes are likely to have a more direct impact.