The Equality Act 2010

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1 The 1. In 2010 the landscape of equality law changed. It had, over the years, got rather messy, with different statutes covering all of the main stands of discrimination. The sought to:- (1) tidy up ( reform and harmonise ) discrimination law; and (2) promote progress on equality. 2. According to the Government Equalities Office website:- One of the key priorities of the Coalition Government is to support economic recovery and remove unnecessary burdens on business. The is a major simplification of discrimination legislation that makes the law easier to understand and comply with and delivers significant benefits for business, public bodies and individuals. 3. The problems are:- (1) This is new law. With new law comes new problems. (2) This is developing law. At the moment new provisions are coming in and out of the Act all the time. The political bits 4. It s worth dealing with some of the politically hot sections of the Act at the outset. (4.1) The Government Equality Office said of the Act (quoting Harriet Harman when the Bill was passed):- This is a historic piece of legislation that contains a range of new rights, powers and obligations to help the drive towards equality, including tackling the overarching inequality caused by where you are born and what your parents do for a living. (4.2) There is a new public sector duty regarding socio-economic inequalities which requires various public authorities (including government departments (except the spooks), county and district councils, police and some healthcare authorities) to have due 1

2 regard to the desirability of reducing inequalities arising from socio-economic disadvantage when making strategic decisions on how to exercise their functions (s.1). Note that any failure in this regard would not confer a private cause of action (s.3). The new Government announced on 17/11/10 that this section would be scrapped. Their stated reason:- The Government is focused on specific policies and practical actions that will deliver real change in tackling poverty and promoting social mobility. The Government will be using transparency to drive changes in attitudes and behaviours, rather than pushing ahead with ineffective, bureaucratic measures like the socio-economic duty. It remains to be seen what the WAG do about this. (4.3) Distinct from that, but similarly titled, section 149 and following deal with a Public Sector Equality Duty which obliges public authorities to have due regard to the need to advance equality. This came into force on 5/4/11. There is a useful guide at yduty%20guide%20-%20final.pdf. The (Statutory Duties) (Wales) Regulations 2011 requires publication of equality objectives. (4.4) By s.77 contractual terms purporting to prevent employees disclosing their salaries (or any terms of their work) are unenforceable insofar as the employee wishes to see whether or not discrimination is occurring. Note the limit of this:- employees may talk about their salaries if they are trying to find out whether or not the salary structure is discriminatory. Simple gossip about salaries can still be prohibited. (4.5) Gender pay gap information. Section 78 provides that regulations may require the pay of male and female employees to be published by larger employers (over 250 employees). As I understand it the political idea is to encourage private sector employers to publish this information without the need for regulations. The old Government committed not to introduce 2

3 regulations until 2013, and only then if employers did not publish voluntarily. The new Government s position (as I understand it) is that it will not implement the gender pay reporting measures while it is working with business to encourage the publication of equality workforce data on a voluntary basis. (4.6) The positive action regime (in force from April 2011):- This allows an employer to select a candidate from an under-represented group when considering two equally qualified applicants (what does equally qualified mean? I wonder). See ss For the politically interested there are plenty of other tit-bits (the Lords removed the ban on civil partnerships taking place in religious buildings, political parties might now have to publish information on the diversity of their candidates, pregnant schoolgirls and young mothers have extra protection, churches can still refuse to employ gay and transsexual people). Protected characteristics 6. Protection against discrimination on account of protected characteristics has been spread over a number of pieces of legislation. The Act brings them under one roof, and seeks to harmonise (to some extent) the law of discrimination in respect of them. 7. The 9 protected characteristics identified in the Act (s.4) are:- age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; sexual orientation. 3

4 Direct discrimination 8. By s.13(1):- A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. 9. There are some significant things to note about that phrasing:- (i) A discriminates against B if A treats B less favourably because of a protected characteristic. B does not have to have the characteristic. Associative discrimination is therefore now wider than it was before. If the less favourable treatment of B is because someone else has the characteristic, that can be discrimination against B. (ii) A discriminates against B if A treats B less favourably because of a protected characteristic. No-one has to have the characteristic. Perception that someone has the characteristic will (probably) do. Thus if A treats B less favourably because A (wrongly) thinks that B has the protected characteristic, that can be discrimination against B. (iii) These two things can work together. Thus A can discriminate against B on the basis that he treats B less favourably than he would treat others because A wrongly thinks that someone other than B has the protected characteristic. Dual characteristics 10. These provisions were due to be implemented in April 2011, but the government has delayed implementation. It remains to be seen what (if anything) happens to this. Just in case... (1) Section 14(1) provides:- A person (A) discriminates against another (B) if, because of a combination of two relevant protected characteristics, A treats B less favourably than A treats or would treat a person who does not share either of those characteristics. 4

5 (2) The relevant characteristics are age, disability, gender reassignment, race, religion or belief, sex, and sexual orientation (so not marriage/civil partnership, pregnancy/maternity). (3) It remains to be seen how useful this section is if it comes into force. To get home on a breach of s.14 a claimant needs to show that the discrimination was caused by the combination of characteristics. Thus C needs only prove, say, that he was discriminated against because he is a black man (and he does not need to separately prove that the discrimination was because he is (a) black; and (b) a man). It seems to me that this section risks increasing the number of bogus claims. As things stand a claimant with a legitimate unfair dismissal claim will frequently try to find a way to make it a discrimination claim to avoid the statutory cap and increase pressure on the employer to settle the claim. It seems to me that that process has got easier:- in the above example the claimant might have complained that his treatment was because he is black (but the employer might have been able to show the same treatment to other black employees) or because he is male (but the employer might have been able to show the same treatment to other male employees). Now the claimant can say that the treatment was because he was a black male. The employer might have fewer employees sharing the combined characteristics, and might accordingly find the defence harder to make out. On the positive side, the new provision does increase protection for genuine claimants. Indirect discrimination 11. Section 19:- (1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B s. 5

6 (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B s if (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim. 12. That is familiar from the more recent discrimination legislation. It now applies almost across the board (but not quite). The relevant protected characteristics exclude pregnancy and maternity (which have their own code in ss.17-18). Harassment 13. The definition is widened to include association/ perception cases in line with the new definition of direct discrimination. So s.26 starts:- (1) A person (A) harasses another (B) if (a) A engages in unwanted conduct related to a relevant protected characteristic [or of an unwanted sexual nature], and (b) the conduct has the purpose or effect of (i) violating B s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. 14. Note s.40 which provides that an employer is liable for a third party harassing his/her employee if the employer knows that a third party has harassed the employee on at least 2 previous occasions and the employer has failed to take reasonably practicable steps to prevent further 6

7 harassment. This section is in force, but the Government has announced a consultation (to begin in the autumn) to consider taking it out. Occupational requirement 15. The word genuine has been dropped. There is now a (rather squirreled away) defence (in relation to all strands of discrimination) of occupational requirement provided that it is a proportionate means of achieving a legitimate aim (see Schedule 9(!)) Recommendations 16. Section 124(3) entitles the ET to make recommendations in relation to employer respondents even when carrying out the recommended action cannot benefit the employee who brought the complaint. Benefit to any other person will do. That might well focus the minds of employers when deciding whether or not to settle a claim (albeit that it remains to be seen how often the power is used). Relationships which have ended 17. These are still covered:- see s.108. Vicarious liability 18. By s.109:- (1) Anything done by a person (A) in the course of A s employment must be treated as also done by the employer. (2) Anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal. (3) It does not matter whether that thing is done with the employer s or principal s knowledge or approval. (4) In proceedings against A s employer (B) in respect of anything alleged to have been done by A in the course of A s employment it is a defence for B to show that B took all reasonable steps to prevent A (a) from doing that thing, or 7

8 (b) from doing anything of that description. 19. The law has been harmonised on this issue since these vicarious liability provisions now apply across all of the strands of discrimination. General Tribunal procedure 20. Jurisdiction (ss.120 and 127) covers what you would expect. The time limit is still 3 months subject to a just and equitable extension (s.123). The time limit is 6 months for armed forces cases which have to jump through an internal hoop first (s.121 and 123(2)). The time limit is 6 months in equality clause cases (see below). 21. Igen v. Wong appears as s.136(2-3). 22. Questions (and inferences from failing to answer) are in s.138. What lurks in the Schedules 23. For reference, note:- Schedule 1 now contains what was Schedule 1 to the DDA 1995 (determination of disability). Schedule 8 adds detail to the reasonable adjustments requirement. This includes a defence of no knowledge (at Schedule 8 Part 2 paragraph 20). Schedule 9 contains the occupational requirement defence (see above). Codes of Practice and subordinate legislation 24. Relatively recently (6/4/11) the Equality and Human Right Commission Codes of Practice came into force. (1) Employment (309 pages); (2) Equal Pay (68 pages); and (3) Services, Public Functions and Associations (270 pages) (this code covers Parts 3 and 7 of the Act:- not the typical stomping ground 8

9 of an employment lawyer, but necessary reading for anyone with a broader equality practice). The codes are admissible in evidence in civil proceedings. Failure to comply with a code must be taken into account by a court or tribunal, where relevant. The relevant parts are, therefore, necessary reading when preparing a discrimination case. 25. Remembering that the states aim of the Act was to collect discrimination law in one place, since the Act came into force (less than a year ago), there has been a load of subordinate legislation dealing with dates in force, adding to and amending the Act. Make sure that you are using an up to date version. A CLOSER LOOK AT SOME PROTECTED CHARACTERISTICS Disability 25. Disability-related discrimination does not appear. Instead we have s.15 dealing with discrimination arising from disability (in addition to the direct and indirect discrimination provisions which also apply to disability). (1) A person (A) discriminates against a disabled person (B) if (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability. 26. This seems to reverse London Borough of Lewisham v. Malcolm. The Tribunal considers whether the issue arises as a consequence of the disability (poor time-keeping, say), and then looks to the justification defence (rather than the post Malcolm position of using a non-disabled 9

10 comparator with poor time-keeping as a comparator). The words something arising in consequence of B s disability might be considered broader than the old reason which relates to a person s disability test. 27. The statute uses a slightly convoluted route to say that it is permissible to treat a disabled person more favourably. Section 13(3):- If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B. 28. The adjustments provisions are broadly the same as we are used to (albeit more codified). See sections 20 and As a way to try to prevent disability discrimination (particularly discrimination on the basis of psychiatric conditions, I think), s.60 prohibits employers asking about the health of applicants before work is offered. An applicant who thinks that questions are unlawful cannot bring a claim on that basis (rather (s)he complains to the Equality and Human Rights Commission who can bring enforcement action). That said, if the question is asked and the answer is used to discriminate, that can set up a discrimination claim:- simply asking about health does not equal disability discrimination, but conduct in reliance on the answer might be. The Tribunal is entitled to use the fact of the question to draw an inference (s.60(5)). There are various situations in which asking about health is permitted (intrinsic function capability check, diversity monitoring, two-ticks scheme (guaranteeing interview) etc.) Sex/ Equal Pay 30. A chapter of the Act has been given to equality of terms. Time does not permit detailed exploration of this, but note sections 64 onwards dealing with sex equality. In a nutshell a sex equality clause is implied into all contracts such that where there is like work, there must be like terms subject to a material factor defence. 10

11 Age 31. The main change is unlikely to bother employment lawyers:- supply of goods, services etc (which, the GEO told me a while ago, is not expected to come into force until 2012 there is currently a consultation exercise going on to try to ensure that good discrimination is not inadvertently rendered unlawful). The proportionate means of achieving a legitimate aim defence remains in normal age discrimination claims. How to find your way through the new legislation 32. Until we are all used to it, I suggest that a sensible way to deal with discrimination claims will be as follows:- (1) Does C have the protected characteristic? See Act sections 4-12? (2) Check the available discrimination under s.25 (which summarises the available discrimination claims under each of the strands). (3) Dealing with the main discrimination concepts; is what is alleged:- (a) Direct discrimination (s.13); (b) Indirect discrimination (s.19); (c) Harassment (s.26); or (d) Victimisation (s.27) within the definitions given? (4) If not, does it fit within one of the other strand-specific types of discrimination:- Discrimination arising from disability (s.15) A failure to make reasonable adjustments re disability (s.21) Work absence due to gender reassignment (s.16) Pregnancy/ maternity (s.18)? MATTHEW WHITE St John s Chambers, Bristol, BS1 6PU June

12 We ll all get used to the before you know it. Until then, you might find the following to be a useful guide to the sections which will need to be considered in ordinary discrimination claims. (1) Does C have the protected characteristic? See Act sections 4-12? (2) Check the available discrimination under s.25 (which summarises the available discrimination claims under each of the strands). (3) Dealing with the main discrimination concepts; is what is alleged:- (a) Direct discrimination (s.13); (b) Indirect discrimination (s.19); (c) Harassment (s.26); or (d) Victimisation (s.27) within the definitions given? (4) If not, does it fit within one of the other strand-specific types of discrimination:- Discrimination arising from disability (s.15); A failure to make reasonable adjustments re disability (s.21); Work absence due to gender reassignment (s.16); or Pregnancy/ maternity (s.18)? Simple! MATTHEW WHITE 26 August 2010

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