The Act outlaws discrimination and other forms of prohibited conduct in relation to the following

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1 Employer Guide to the Equality Act 2010

2 2 The Equality Act 2010 brings together and harmonises lots of previous equality law which had been enacted over a long period, so that the law will become simpler and easier both to understand and to comply with. Most of the Act s provisions came into effect on 1 October 2010 and this guide is intended to give a general introduction to its employment-related provisions. HARMONISING THE LAW Protected characteristics The Act outlaws discrimination and other forms of prohibited conduct in relation to the following nine protected characteristics. Age Disability - the definition of which is changed. A disabled person no longer has to show their impairment affects a particular capacity, such as mobility or speech. It now relies on the general requirement that impairment has a substantial and long term effect on a person s ability to carry out normal day-to-day activities. Gender Reassignment to qualify from protection from discrimination a transsexual person no longer has to show they are under medical supervision. Marriage and Civil Partnership Pregnancy and Maternity Race Religion or Belief includes discrimination on grounds of what an employee does not believe in as well as what he or she does believe in. Sex Sexual Orientation. Prohibited conduct Direct discrimination someone is treated less favourably than others because of a protected characteristic. It applies to all nine protected characteristics, and is always unlawful, except in the case of age where it can be objectively justified (using the same test as for indirect discrimination). Discrimination against a woman because she is breastfeeding is deemed to be a case of sex discrimination. Associative discrimination (New for Age, Disability, Gender Reassignment and Sex) this is direct discrimination against someone because they associate with another person who possesses a protected characteristic. Discrimination by perception (New for Disability, Gender Reassignment and Sex) direct discrimination against someone because it is thought they possess a particular protected characteristic.

3 Indirect discrimination (New for Disability and Gender Reassignment) arises when you have a rule or policy (a provision, criterion or practice) that applies to everyone but disadvantages those sharing a particular protected characteristic. This is unlawful unless the employer can show that it is objectively justified i.e. a proportionate means of achieving a legitimate aim. Discrimination arising from disability - discrimination arising from disability replaces the previous concept of disability related discrimination. The new provision is as follows: The employer or provider of services or public functions must know or could reasonably be expected to know that the person is disabled. In the Disability Discrimination Act it was an objective test. The treatment that the disabled person experiences must be detrimental because of their disability. There is no requirement for a comparator i.e. the disabled person does not have to show that they have been treated or would have been treated less favourably than someone else. The detrimental treatment may be justified if is a proportionate means of achieving a legitimate aim. Harassment (Harassment applies to all protected characteristics except for Pregnancy and maternity, and marriage and civil partnership) the definition of harassment 1 has changed so that employees can now complain of behaviour they find offensive even if it is not directed at them. Also, the victim does not need to possess the relevant characteristic themselves. Protection now extends to harassment because of association and perception. Harassment by a third party (New for Age, Disability, Gender Reassignment, Race, Religion or Belief and Sexual Orientation) employers are potentially liable for harassment of their staff by people they don t employ. The three-strikes rule used in sex/sexual harassment cases applies to all protected characteristics. It means an employer cannot be held responsible unless the employer knows that the employee has experienced third-party harassment on at least two prior occasions (although the perpetrator need not be the same person on all three occasions). Victimisation (Victimisation applies to all 9 protected characteristics) victimisation arises where someone is treated badly because they have made or supported a complaint or grievance under the Act. There is now no need for a comparison between the person who has made or supported a complaint and someone who has not. Duty to make reasonable adjustments for disabled persons The Equality Act retains the duty to make reasonable adjustments. There are three requirements relating to 1) provisions, criteria or practices, 2) physical features of the built environment and 3) auxiliary aids. Reasonable adjustments must be made if a disabled person is at a substantial disadvantage. This can include providing information in accessible formats. The cost of making the adjustments cannot be passed on to the disabled person. 1 unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual 3

4 4 KEY CHANGES Pre-employment health-related checks Under the Act, an employer is not allowed to ask about a candidate s health before offering them work. This is a new provision designed to try to prevent employers making assumptions about an applicant s capability because of their medical history. The rule doesn t apply to questions that are to: decide whether you need to make any reasonable adjustments for the person in the selection process decide whether an applicant can carry out a function that is essential to the job monitor diversity among people making applications for jobs take positive action to assist disabled people assure a candidate has a disability where the job genuinely requires the job holder to have a disability The job applicant would need to make a complaint to the Equality and Human Rights Commission in the first instance, who can take enforcement action against an employer who asks questions about health or disability. A job applicant who believes they suffered a detriment may use the questions asked as evidence of disability discrimination in a tribunal claim. The employer would have to be able to prove the answers to the questions did not influence the decision not to appoint the applicant. Once a person has been offered the job you are permitted to ask health-related questions. Positive Action You can use positive action (but not to decide between candidates in relation to their suitability for promotion or recruitment) where you reasonably think, based on evidence, that: people who share a protected characteristic suffer a disadvantage connected to that characteristic people who share a protected characteristic have needs that are different from the needs of people who do not share it, or participation in an activity by people who share a protected characteristic is disproportionately low You will need to have some evidence to show that your belief is reasonable, but it does not need to be sophisticated statistical data or research. For example, you could look at the profile of your workforce and compare it to several comparable employers in your area or sector before deciding to make efforts to attract more applicants from an under-represented group. Positive action is not compulsory. It is still unlawful to have a policy of favouring individuals from under-represented groups.

5 5 Extension of Employment Tribunal powers The Act extends the powers of employment tribunals so that they can now make recommendations that an organisation takes steps to eliminate or reduce the effect of discrimination on other employees, not only the claimant. For example, the tribunal might specify that an employer needs to train all staff about the organisation s diversity policy. This power does not apply to equal pay cases. There is also an exception to the wider scope of the tribunal s powers in national security proceedings where recommendations affecting the wider workforce will generally be excluded. Equal Pay To claim for discrimination in respect of pay, an individual under previous law had to establish a comparator of the opposite sex who was in the same employment, doing equal work and was better paid. This is still the case but the new Act has introduced the concept of a hypothetical comparator. If an individual can show there is evidence that they would have received better remuneration if they were of a different sex they can make a claim, even if there is no-one of the opposite sex doing the equal work in the organisation. It would be a claim under sex discrimination rather than equal pay therefore a tribunal would be able to award damages for injury to feelings. An employer can use a material factor defence where they can show that the difference in pay is because of a material factor. This factor must be nothing to do with sex or must show that it is a proportionate means of achieving a legitimate aim. An employer s long term objective of reducing pay inequality between men and women will be always be considered a legitimate aim. Discussions about pay The Act says that an employer cannot restrict an individual from discussing the terms of work where the discussion is a relevant pay discussion. It is unlawful victimisation to take action against an employee who has engaged in a relevant pay discussion. A relevant pay discussion is a discussion relating to whether pay is connected to a protected characteristic, such as sex or age. This could be a grey area because how the employer can find out if the discussion is related to a protected characteristic can be tricky. This makes it difficult for an employer to take disciplinary action against an employee discussing pay. Advice is to think carefully before doing so. An employer can, however, require their employees keep pay rates confidential from people outside the organisation, for example competitors. EXCEPTIONS Occupational requirements If you can show that a particular protected characteristic is central to a particular job, you can insist that only someone who has that particular protected characteristic is suitable for the job. This would be an occupational requirement. It is not enough for an employer to decide they would prefer to employ someone with a protected characteristic, it must be crucial to the post. It must also relate to the nature of the job not the employing organisation.

6 6 Applying the occupational requirement must also be shown as being a proportionate means to achieving a legitimate aim. For example: A women s refuge may want to say that it should be able to employ only women as counsellors. Its client base is only women who are experiencing domestic violence committed by men. Religion or Belief There is a separate (but very similar) exclusion that applies to organisations with an ethos based on religion or belief. They may be able to say that a job requires a person doing the job to hold a particular religion or belief if, having regard to the nature or context of the job, this is an occupational requirement and it is objectively justified. For example: A Humanist organisation which promotes Humanist philosophy and principles would probably be able to apply an occupational requirement for its chief executive to be a Humanist. Organised Religion Where employment is for the purpose of an organised religion some roles may be restricted. The employer may be able to say that a job or role requires a person to have or not have a particular protected characteristic or to behave or not behave in a particular way. The exemption only applies where: a job or role exists for the purposes of an organised religion, such as being a Minister or otherwise promoting or representing the religion, and because of the nature or context of the employment, it is necessary to avoid conflict with the strongly held religious convictions of a significant number of the religion s fol lowers or to conform to the doctrines of the religion by applying a requirement to the job or role. In such cases, some roles can be restricted to people of a particular sex or sexual orientation, non-transsexuals, people who are not married or in a civil partnership; or people who are not divorced or married to (or in a civil partnership with) someone who has been divorced. In addition, requirements related to sexual orientation can be imposed on certain roles, i.e. a requirement to be celibate if gay. Obeying another law You can take into account a protected characteristic where not doing this would mean you broke another law. For example: A driving school must reject a 19 year old who applies for a job as a driving instructor because to offer them a job even if they are otherwise the best candidate would involve breaking the law because a driving instructor must be aged at least 21.

7 7 PROVISIONS STILL TO BE IMPLEMENTED Public Sector Equality Duty The Act introduces a new public sector equality duty which is expected to come into force in April The new duty covers all of the protected characteristics apart from marriage and civil partnership. It will apply not only to public sector bodies (government departments, local authorities, NHS Trusts etc) but also to organisations in the private and third sectors that carry out functions of a public nature. The duty will require all public bodies to have due regard to the need to: eliminate discrimination, harassment, victimisation and any other conduct that is prohibited advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it, and foster good relations between persons who share a relevant protected characteristic and persons who do not share it. The Act gives the governments of England, Wales and Scotland power to impose specific duties on specified public authorities. The specific duties will be different in England, Wales and Scotland and each country is undertaking their own consultation. For England, the specific duties are likely to be light touch and much less prescriptive than the current duties in respect of race, gender and disability. PROVISIONS WHICH THE GOVERNMENT IS STILL CONSIDERING Combined discrimination Direct discrimination because of a combination of protected characteristics e.g. a Muslim woman. This new concept only applies to claims brought based on two combined protected characteristics (excluding pregnancy and maternity, or marriage and civil partnerships). However an individual will still be able to bring a claim of harassment based on separate characteristics. Positive action as a tie-breaker in recruitment and promotion Positive action in recruitment and promotion may be permitted if two people who have applied for a job are equally qualified but one person is from an under-represented group and so can be chosen in preference to the other. For example: A man and a woman apply for the same position. Both are equally qualified for the job. The employer will be able to take positive action to employ the man if they can show that men are under-represented in their workforce. However, if the woman was better qualified than the man and the employer still decided to offer him the job because men are under-represented then this would be unlawful direct discrimination. Socio-economic duties This new duty would require certain public bodies to have due regard for reducing socio-economic disadvantage when making strategic decisions. This would not give an individual a stand-alone right to claim for discrimination; would not extend to private employers; and would apply only to a restricted list of public bodies.

8 Pay transparency Employers with 250+ employees in the private and voluntary sector may at some date be required to publish gender pay gap information. The Act does not specify how the pay gap is to be calculated or the timing and form of publication. The Government has asked the EHRC to develop workable arrangements for voluntary reporting by employers. The Commission issued a public consultation paper on this matter last year and published its resulting proposals on 19 January The details of these proposals can be found on the Commission s website: PRACTICAL SUGGESTIONS Review policies, including recruitment and harassment Review contracts of employment e.g. pay secrecy clauses Consider what adjustments may be required in order to meet obligations in relation to disability Review recruitment processes and application forms to ensure that any pre-employment health-related questions are lawful Public sector employers will need to prepare for the extended scope of the public sector equality duty Training in the core provisions of the Act and its extended requirements Acknowledgements Eversheds Employers Forum on Disability ACAS Government Equalities Office Further reading Equality & Human Rights Commission 8

9 The Employers Forum on Age (EFA), founded in 1996, is the UK s leading authority n age and an independent network of leading employers who recognise the value f an age diverse workforce. In addition to supporting employers, the EFA influences overnment, business and trade unions, campaigning for real practical change. Advises Government on age related policy issues Supports members in creating an age neutral workplace by taking a practical approach to achieving equality Represents the views of UK employers Challenges the status quo by presenting real alternatives Highlights the pros and cons of new employment laws Campaigns against age discrimination ontact EFA 2-36 Loman Street, London SE1 0EH F W E

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