The Law

The Equality Act 2010 came into force on 1 October 2010. This new Act brings together and restates the previous discrimination legislation concerning:-

  • sex
  • race
  • disability
  • sexual orientation
  • gender reassignment
  • marriage and civil partnership
  • pregnancy and maternity
  • religion or belief;
  • age

These features are known as the “protected characteristics” and the law seeks to adopt a single approach where appropriate.

It prohibits discrimination, harassment and victimisation on the basis of the protected characteristics. It is therefore unlawful to discriminate against someone based on any of these grounds and the provisions are intended to cover all parts of the employment relationship, including recruitment, terms and conditions, promotions, transfers, dismissals and training.

Types of Discrimination

There are various types of discrimination and other unlawful conduct set out in the Equality Act 2010 that apply to most (and in some cases all) of the protected characteristics. A brief overview of the main types are given below.

Direct Discrimination

This is where discrimination occurs where “because of a protected characteristic, A treats B less favourably than A treats or would treat others”.

Indirect Discrimination

This is where acts, decisions or policies are made which are not intended to treat anyone less favourably, but which in practice have the effect of disadvantaging a group of people with a particular protected characteristic. Where such an action disadvantages an individual with that characteristic, it will amount to indirect discrimination unless it can be shown that the actions were a proportionate means of achieving a legitimate aim.

Harassment / Victimisation

The law also prohibits an employer harassing an employee or prospective employee on the grounds of a protected characteristic. Similar protection exists for individuals in respect of being victimised because they have enforced or attempted to enforce their rights under the Equality Act.

New Provisions

The new Act makes some changes to the law in relation to each of the protected characteristics but there are some general changes which will affect all of the characteristics.

  1. Associated Discrimination and Harassment

The new Act extends this protection to all of the protected characteristics with the exception of marriage and civil partnership.

  1. Discrimination and Harassment Because of Perceived Characteristics

The definition of perceived characteristics is sufficiently broad to cover an incorrect perception. For example an employee who is not homosexual could raise a complaint alleging discrimination or harassment in circumstances where the employee is not actually homosexual but this is the perception of the perpetrator of the harassing behaviour.

  1. Harassment

The definition of harassment in the Act refers to harassment which is ‘related to’ a particular characteristics rather than the former test of ‘on grounds’ (excluding pregnancy, maternity and marriage and civil partnership). This extends the definition to harassment based on perception or association. For example, harassment based on an employee’s spouse’s religion or belief or harassment on account of a misperception that someone is homosexual when they are not.

  1. Victimisation

Previously the law involved the need for a comparator. This has been removed by the new Act, but it is unlikely to have any effect in practice.

  1. Remedies Available To The Employment Tribunal

The previous legislation meant that the Employment Tribunal could only make recommendations in relation to the Claimant only. However, this was often not a very effective remedy as many employees will leave the employer as a result of the treatment they have received. The new Act gives the Employment Tribunal the power to make recommendations in relation to the “wider workforce”.

  1. Positive Action

This is perhaps the most significant change brought about by the Act. The previous law stated that positive action involved “training and encouraging” underrepresented groups. The new Act takes this further and introduces a general provision that allows employers to take proportionate means to assist the employee to overcome the disadvantage, or meet specific needs of the employee relevant to a protected characteristic.

Provisions Not Yet In Force

The Equality Act also makes provision for various other areas some of which are yet to come into force. These include:

  1. Multiple Discrimination claims

As the law stands at the moment it is not competent to bring a claim to an Employment Tribunal on more than one ground of discrimination.

  1. Public Sector Equality Duty

An important part of the Act is the public sector Equality Duty, which once implemented will have a key role in ensuring that fairness is at the heart of public bodies’ work and that public services meet the needs of different groups. The Government is in the process of consulting further about these provisions.

Current Cases

Before the Equality Act came into force, discrimination law in Great Britain was contained in various different pieces of legislation and for the next year or so the previous legislation will continue to apply to claims progressing through the Tribunal system. There are also transitional provisions to deal with situations which were ongoing on 1 October 2010.