On 3 July 2010, the Government announced that the first wave of implementation of the Equality Act 2010 would take place on 1 October 2010, bringing into force the majority of the Equality Act’s provisions.
The Government Equalities Office has now confirmed that the provisions of the Equality Act coming into force on this date in the employment context will include:
- the basic framework of protection against, and standardised definitions of, prohibited conduct embracing direct and indirect discrimination (which has been extended to include disability as a protected characteristic);
- the amended definition of gender reassignment removing the requirement for medical supervision;
- the provisions establishing the ability to claim discrimination on the grounds of a perceived protected characteristic or association with someone who has a protected characteristic;
- the new concept of “discrimination arising from disability” (replacing the limited concept of disability-related discrimination following the decision in Malcolm);
- removal of the comparator requirement for victimisation claims;
- harmonising the thresholds for the duty to make reasonable adjustments for disabled people;
- extending protection from third party harassment to all protected characteristics;
- preventing employers from asking job applicants questions about their health or any disability before making a job offer, except in certain prescribed circumstances;
- allowing the use of hypothetical comparators for direct gender pay discrimination;
- making pay secrecy clauses unenforceable; and
- new powers for employment tribunals to make recommendations which benefit the wider workforce.
The Equality Act 2010 (Disability) Regulations 2010 were laid before Parliament on 31 August 2010 and clarify the definition of disability for the purposes of the Equality Act. These Regulations clarify that the following are not to be treated as impairments:
- addiction to alcohol, nicotine or any other substance (except where the addition was originally the result of the administration of medically prescribed drugs or other treatments); and
- tendency to start fires, to steal or to physically or sexually abuse other people, exhibitionism or voyeurism.
Additionally, tattoos and piercings are not to be treated as severe disfigurements having a substantial adverse effect on an individual’s ability to carry out normal day-to-day functions.
The Government is currently consulting on the best way to implement the public sector equality duty, introduced by the Equality Act, which requires public sector employers to eliminate discrimination and promote equality.
The Government is still deciding on the best way to implement the remainder of the provisions contained in the Equality Act and no definite timetable for implementation has been given. These include provisions relating to:
- combined discrimination, allowing employees to bring discrimination claims based on a combination of two protected characteristics;
- gender pay gap information, requiring employers with 250 or more employees to report on the disparity between what male and female employees are paid; and
- positive action in recruitment and promotion, permitting employers to select candidates for recruitment or promotion on the basis of a protected characteristic.