September A Quick Guide to: The Equality Act 2010

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1 September 2010 A Quick Guide to: The Equality Act 2010

2 Introduction The law relating to unlawful discrimination in Great Britain has evolved over the last 40 years. Until October 2010, it was to be found in a number of different Acts and Regulations. The Equality Act 2010 is the latest step in the evolution of discrimination legislation. It contains a number of new concepts, but primarily seeks to pull all the existing legislation into one place, consolidating and harmonising the legislation. The majority of the Equality Act comes into force on 1 October Defining Discrimination: One Size Fits All Protected Characteristics The Equality Act centres around nine different protected characteristics which are fundamental to discrimination law: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation. There is no change here from the list of characteristics protected prior to 1 October 2010 and the definitions used in existing legislation are largely unamended. However, there are some minor changes. For example, gender reassignment will no longer require medical supervision to attract protection from discrimination. The definition of disability has also been amended, with the government currently carrying out a consultation on this point, and it is arguable that this may make it easier for workers to seek protection from disability discrimination. Harmonisation As a result of the way that the various Acts and Regulations dealing with discrimination have developed, many of the legal tests used before 1 October 2010 to identify acts of discrimination depend on the protected characteristic in question. The Equality Act aims to harmonise the tests for different forms of discrimination and iron out discrepancies between different protected characteristics where possible. Admittedly, whilst there are still some wrinkles in the Equality Act, essentially the harmonisation of discrimination law under the Equality Act should make it easier to identify discrimination in the workplace. What s Changed: New Definitions of Discrimination? As part of the government s wider aim to reduce inequality, the Equality Act has also introduced some new areas of discrimination, with the following key changes: September Mishcon de Reya

3 1. Associative and Perceptive Discrimination The definition of direct discrimination has been amended under the Equality Act so as to remove the need for a claimant to establish that the protected characteristic is held by them: they merely need to show that the conduct complained of was because of a protected characteristic. This change in wording will give protection to those claimants associated with someone with a protected characteristic (such as the carer of a disabled person) or those who are perceived to have, but do not have, a protected characteristic. The only characteristics that will not be covered by this change are marriage/civil partnership and pregnancy/maternity. 2. Harassment by Third Parties With the exception of pregnancy and maternity, and marriage and civil partnership, protection from harassment will be harmonised across the protected characteristics. Employer liability for third-party harassment will also be widened to apply to the same protected characteristics, which at present is only applicable to sex discrimination claims. The definition of harassment will also be broadened to incorporate harassment due to associative and perceptive discrimination. This will afford protection to cases, for example, where someone is harassed because a family member is gay or they are wrongly perceived to hold a particular religious belief. 3. Dual Discrimination The Equality Act recognises that people who hold more than one protected characteristic may find it difficult to bring a claim successfully. At present, in a claim for direct discrimination, each protected characteristic must be considered alone as a single ground for discrimination. The claimant would need to demonstrate that they have been treated less favourably than a comparator holding each one of the protected characteristics for the claim to succeed. For instance, if a black woman complains that she has been passed over for promotion because she is a black and a woman (i.e. has two protected characteristics), the employer would be able successfully to defend such a claim if it can show that a black man and a white woman have both been recently promoted. Under the Equality Act someone will be able to bring a combined or dual-discrimination claim where they are treated less favourably in relation to a combination of two (and not more) of certain (but not all of) the protected characteristics. Pregnancy and maternity, and marital / civil partner status are both excluded from the list of protected characteristics which may be combined in this way. The provisions relating to dual discrimination will not come into force until April 2011 at the earliest and the impact of introducing dual-discrimination may well prove to be overstated. Whilst this new provision will certainly help to increase awareness of dual-discrimination, in practice it will only assist a very small number of claimants, with most claimants suffering from dual discrimination already able to prove discrimination on the grounds of a single protected characteristic. September Mishcon de Reya

4 4. Disability Discrimination Some of the most significant changes under the Equality Act are in relation to disability: Under the Disability Discrimination Act 1995 ( DDA ), disability is defined as an impairment which has a long-term adverse effect on someone s ability to carry out normal day-to-day activities. Normal day-to-day activities are not defined by the DDA, and instead reference must be made to the effect of the disability on one of a list of specific capacities. The Equality Act will amend the definition of disability by removing the list of capacities that must be affected by an impairment. Whilst this is not likely to greatly broaden the definition of disability, it should make it easier for employees to show they are disabled. Following the House of Lords decision in London Borough of Lewisham v Malcolm [2008], it is now difficult for an employee to claim disability-related discrimination under the DDA. Following Malcolm, a claimant who wishes to show that they have been treated less favourably by their employer for a reason related to their disability, has to compare their treatment with someone who is a non-disabled person in similar circumstances. For example, if a claimant has been dismissed as a result of poor performance, which has arisen from a disability, they will need to compare their treatment with a real or hypothetical non-disabled person whose performance is poor. In many cases, the claimant will not be able to show any difference in treatment. The Equality Act has responded to this by replacing the concept of disability-related discrimination with discrimination arising from a disability, which aims to avoid the unwanted effects of the Malcolm decision. In line with other forms of indirect discrimination, an employer will only be able to avoid liability for detrimental treatment of someone who is disabled where the treatment in question is "a proportionate means of achieving a legitimate aim". An employer will only be liable under this form of discrimination if they knew, or ought to have known, of the claimant s disability. When recruiting, employers will not be permitted to ask pre-employment health questions except in specific circumstances. This includes where a question is necessary for the purpose of establishing whether the applicant will be able to carry out a function that is intrinsic to the work concerned. It is not currently clear what form these questions may take in order not to infringe the new rules. Health and Disability at Work: Points to Consider Following the Equality Act and other recent changes in case law in this area, some of the key areas for employers to consider relate to health and disability: Employers will need to carefully consider the wording of any questions put to job applicants. Employers should ensure that these questions do not go further than is necessary to establish whether the applicant will be able to do the role. For example, questions about a candidate s current health are more likely to be acceptable than questions about past health. Where an applicant or employee tells their employer that they have a medical condition, or their employer might reasonably be expected to know this, the employer should consider whether this falls under the new definition of disability under the Equality Act. It is worth remembering that the Equality Act makes a number of exceptions and some medically recognised conditions do not attract protection from disability discrimination. Under the Equality Act, a carer of a disabled person does not have explicit protection from all forms of discrimination. However, as a result of their association with a disabled person, carers will be protected from associative direct discrimination and harassment. September Mishcon de Reya

5 Following other recent developments outside of the Equality Act, employees are now entitled to accrue holiday whilst off sick. Employers should consider a review of their permanent health insurance schemes to assess what provision, if any, is made for this and whether the employer may have to cover payments for accrued holiday for employees on long term sick absence who are receiving permanent health insurance payments. Beyond Employment Law As well as employment, the Equality Act 2010 impacts on a variety of areas including Pensions, Commercial Law, Financial Services, Private Members Clubs and Associations, Private Client, Property and the Public Sector. If you think that your business may be impacted in these areas by the Equality Act, we can put you in touch with our specialists in these areas. Evolution not Revolution The changes coming into place under the Equality Act are not the watershed for equality that many thought they might be. However, these changes in discrimination law are set to continue and we are clearly going to experience a transitional period of adjustment: There are currently over 30 different sets of regulations implementing, explaining and clarifying the different aspects of the Equality Act which are going through Parliament, bringing further guidance and potential change. The previous government set a timetable for the introduction of further provisions to be introduced, beginning in April The coalition government has yet to commit to any of these provisions but they could include: dual-discrimination, the obligation on employers to provide information relating to gender pay gaps and provisions relating to positive action in recruitment and promotion. In addition, it is likely that case law will emerge to clarify the Equality Act. We can keep you updated on these developments as they arise. Contact If you would like any further information or want to discuss an area of interest to you, please contact your matter partner or speak direct with Will Winch or Sarah Lister, Solicitors in the Employment Department. Will Winch Sarah Lister Solicitor Solicitor DDI: DDI: September Mishcon de Reya

6 Mishcon de Reya Summit House 12 Red Lion Square London WC1R 4QD T: F: E:

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