EQUALITY ACT PART 1 Introduction to the Equality Act 2010

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1 EQUALITY ACT PART 1 Introduction to the Equality Act 2010

2 CONTENTS INTRODUCTION Aims of the act Key concepts New Protection Scope of the act statutory codes of practice and guidance Repeal of existing legislation Territorial application Executive summary dla piper s equality and diversity group key contact Equality Act Survival Guide 2

3 INTRODUCTION The much anticipated Equality Bill was finally published on 27 April 2009, together with detailed Explanatory Notes. The Bill received Royal Assent in April 2010, becoming the Equality Act 2010 ( Equality Act ). The key provisions of the Equality Act will come into force in October 2010, with further provisions coming into force in 2011 and beyond. The Equality Act and Explanatory Notes are available to download on Parliament s website, The Act contains 16 Parts comprising a total of 218 sections. Parts 1 and 11 of the Act are relevant to the public sector. Parts 2, 5, 8 and 9 are most relevant to the employment field. In addition, there are 28 schedules supplementing the Equality Act. Schedules 1, 6, 7, 8 and 9 are key in the employment field. AIMS OF THE ACT The Equality Act has two clear aims. First it seeks to harmonise discrimination law and, second, it aims to strengthen the law to support progress on equality. KEY CONCEPTS Protected characteristics The Equality Act brings together over 100 separate discrimination measures into one place, and provides a single approach where appropriate. It does this through a new concept of protected characteristics which encompasses all the existing grounds on which discrimination is prohibited (age, disability, gender reassignment, marriage/civil partnership, pregnancy/maternity, race, religion/belief, sex and sexual orientation). The substantive provisions of the Equality Act apply to all these protected characteristics with limited exceptions. The exceptions arise due to the conceptual differences between the different protected characteristics. For further details, please see parts 3 to 11 of DLA Piper s Survival Guide to the Equality Act which relate to each of the protected characteristics. Prohibited conduct The Equality Act retains the familiar concepts of direct and indirect discrimination, victimisation and harassment. The definition of direct discrimination makes it unlawful to treat an individual less favourably than someone else is, or would be, treated because of a protected characteristic. The definition is the same for each of the protected characteristics, save that in respect of age, disability, marriage/civil partnership, race and sex, additional provisions apply. Further information can be found in the relevant parts of the Survival Guide. The definition is wide enough to cover discrimination by association or discrimination based on perception. This means that unlawful discrimination may occur where an employee is treated less favourably because they have a protected characteristic (eg they are male, black, Muslim etc), or because their employer wrongly perceives that they have a protected characteristic (for example, where an employee is treated less favourably because his colleagues think he is gay when in fact he is not) or where the employee is treated less favourably because someone else has a protected characteristic (for example, an employer treats a white employee less favourably because she has a black boyfriend). In the case of discrimination by association, the association is not restricted to particular relationships; the important factor is why the less favourable treatment occurred. The definition of indirect discrimination makes it unlawful to apply a provision, criterion or practice ( PCP ) which is discriminatory in relation to one of the protected characteristics. The PCP must be applied to everyone, but put, or would put, persons with whom the individual shares the characteristic at a particular disadvantage and put, or would put, that individual at that disadvantage. Indirect discrimination can be objectively justified. The definition mirrors the existing definition in the majority of the existing discrimination legislation and is the same for each of the protected characteristics (with the exception of pregnancy/maternity for which there is no protection against indirect discrimination). The key issues to note are that the Equality Act (i) removes the existing anomaly in the Race Relations Act 1975 which currently applies two different tests for indirect discrimination and, (ii) for the first time, makes it unlawful to indirectly discriminate against someone because of disability and gender reassignment. In the case of indirect discrimination, it is necessary for the protected characteristic to be a characteristic of the employee claiming discrimination, ie the employee must actually be disabled, black, a woman, etc. in order to claim. Equality Act Survival Guide 3

4 The harassment provisions broadly reflect the existing discrimination legislation. It is unlawful to engage in unwanted conduct relating to one of the protected characteristics which has the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. However, the protection of employees against third party harassment is significantly extended. Under the existing provisions, protection against third party harassment only applies in relation to gender harassment, sexual harassment or harassment relating to gender reassignment. The Equality Act extends this protection to each of the protected characteristics except pregnancy/maternity and marriage/civil partnership. In order for an employer to be liable, however, it must know that the employee has been harassed in the course of their employment on at least two other occasions by a third party (not necessarily the same third party) and it must have failed to take such steps as would have been reasonably practicable to prevent the harassment. The definition of victimisation broadly reflects the existing provisions. It is unlawful to subject someone to a detriment because they have brought proceedings under the Equality Act, given evidence or information in connection with proceedings under the Equality Act, done any other thing for the purposes of or in connection with the Equality Act or alleged that the employer or another person has contravened the Equality Act. However, importantly, the Equality Act removes the requirement for complainants of victimisation to identify a comparator. NEW PROTECTION Combined discrimination The Equality Act contains new provisions relating to combined discrimination ie discrimination on the basis of more than one protected characteristic. However, the protection is limited to a combination of two protected characteristics and to direct discrimination only. It is discriminatory to treat someone less favourably because of a combination of two of the following protected characteristics: sex, race, disability, age, sexual orientation, religion/belief or gender reassignment. Claimants cannot bring combined discrimination claims involving pregnancy/maternity or marriage/civil partnership. The Equality Act does not contain any provision for claims of combined indirect discrimination. For further details, please see part 2 of DLA Piper s Survival Guide, Equality Act New Concepts. Positive action The Equality Act contains two new provisions which apply to all of the protected characteristics. The first is a general provision which applies where an employer thinks that persons who share a particular protected characteristic either suffer a disadvantage connected to the characteristic, or have needs that are different to the needs of persons who do not share it, or that participation in an activity by those persons is disproportionately low. In those circumstances, the employer is not prohibited from taking any action which is a proportionate means of achieving a legitimate aim of enabling or encouraging persons who share the protected characteristic to overcome that disadvantage, or meeting those needs, or enabling or encouraging persons who share the characteristic to participate in that activity. The second new positive action provision relates to work, and specifically to recruitment and promotion. This provides that where the employer reasonably believes that persons who share a protected characteristic suffer a disadvantage connected with the characteristic, or participation by them in an activity is disproportionately low, the employer can treat a person with that protected characteristic more favourably in connection with recruitment or promotion with the aim of encouraging persons with that characteristic to overcome or minimise the disadvantage or participate in the Equality Act Survival Guide 4

5 activity. However, the employer can only treat someone more favourably if they are as qualified for the recruitment or promotion as someone who does not have the protected characteristic, and they do not have a policy of treating persons who share that characteristic more favourably. Further, the action taken by the employer must be a proportionate means of achieving the appropriate aim. For further details, please see part 2 of DLA Piper s Survival Guide, Equality Act New Concepts. Gender pay reporting The Equality Act contains provisions which give the Government power to make regulations requiring employers to publish information relating to the pay of employees for the purpose of showing whether, by reference to prescribed factors, there are differences in the pay of male and female employees. The regulations will apply only to employers who have more than 250 employees. Pay transparency The Equality Act makes void any term of a person s work which purports to prevent or restrict the person from disclosing or seeking to disclose information about the terms of the person s work, in so far as the person makes or seeks to make a relevant pay disclosure. A disclosure is a relevant pay disclosure if made for the purpose of enabling the person who makes it, or the person to whom it is made, to find out whether, or to what extent there is, in relation to the work in question, a connection between pay and having, or not having, a protected characteristic. For further details, please see part 13 of DLA Piper s Survival Guide, Equal Pay. Enquiries about health and disability The Equality Act limits the ability of employers to ask questions about health and disability during the recruitment process. Under the Act, pre-employment health enquiries are prohibited except in the following circumstances: establishing whether the applicant will be able to comply with a requirement to undergo an assessment or establishing whether a duty to make reasonable adjustments is or will be imposed on the employer in relation to the applicant in connection with an assessment establishing whether the applicant will be able to carry out a function that is intrinsic to the work concerned (or would be intrinsic once the employer complies with a duty to make reasonable adjustments) monitoring diversity taking positive action establishing whether the applicant has a particular disability in relation to occupational requirements Identifying functions intrinsic to the work is likely to be problematic and is likely to require many organisations to have role-specific application forms and processes. The interrelationship between intrinsic factors and the duty to make reasonable adjustments may also be problematic in practice. Employers will still be able to make a job offer conditional on a satisfactory medical but it will be easier to establish discrimination if job offers are subsequently withdrawn. Asking pre-employment health questions is not itself discrimination but acting on information received may be and where a claim is brought in those circumstances the burden of proof will reversed. In addition, the Equality and Human Rights Commission ( EHRC ) will have powers to investigate and take enforcement action where employers use non-permitted pre-employment health enquiries. For further details, please see part 4 of DLA Piper s Survival Guide, Disability. Equality Act Survival Guide 5

6 SCOPE OF THE ACT In the employment field, the Equality Act applies to employees, ex-employees, job applicants, contract workers and the genuinely self-employed. STATUTORY CODES OF PRACTICE AND GUIDANCE The Equality Act is supported by guidance and two statutory Codes of Practice comprising a general Code of Practice and a Code of Practice on Equal Pay. The Codes of Practice and Guidance can be found on the EHRC website, REPEAL OF EXISTING LEGISLATION Most of the existing legislation will be repealed. The Equality Act 2006 will remain in force (as amended by the Equality Act) so far as it relates to the constitution and operation of the EHRC; and the Disability Discrimination Act 1995 so far as it relates to Northern Ireland. TERRITORIAL APPLICATION The Equality Act forms part of the law of England and Wales. It also, with the exception of one section, (section 190, dealing with improvements to dwelling houses) and one part (part 15, dealing with family property) forms part of the law of Scotland. There are a limited number of provisions which form part of the law of Northern Ireland (sections 82 and 105). Equality Act Survival Guide 6

7 EXECUTIVE SUMMARY The Equality Act applies to employees, ex-employees, job applicants, contract workers and the genuinely self-employed. A new concept of protected characteristics brings together all the existing protected grounds into one place. A new definition of direct discrimination makes discrimination based on association and perception unlawful for all protected characteristics. The definition of indirect discrimination is harmonised across all protected characteristics. Indirect disability discrimination is unlawful. Discrimination arising from a disability is unlawful. A uniform definition of harassment applies to all the protected characteristics. Employers may be vicariously liable for harassment by third parties provided that they know that the employee has been harassed on at least two other occasions and they have not taken reasonably practicable steps to prevent the harassment. Combined discrimination provisions provide that it is discriminatory to treat someone less favourably because of a combination of two of the following protected characteristics: sex, race, disability, age, sexual orientation, religion/belief or gender reassignment. Claimants are not able to bring claims of combined indirect discrimination or combined discrimination claims involving pregnancy/maternity or marriage/civil partnership. The genuine material factor defence to an equal pay claim is replaced with a material factor defence. Employers are unable to enforce pay secrecy clauses where an employee is involved in a discussion about pay relating to possible discrimination. The Government has the power to make regulations from 2013 to compel large employers to publish information relating to the pay of male and female employees. New positive action provisions allow, but do not compel, an employer to treat a person with a protected characteristic more favourably in connection with recruitment or promotion in certain circumstances. New provisions restrict the ability of employers to ask questions about health and disability during the recruitment process. Two Codes of Practice for employers will be issued by the Equality and Human Rights Commission when the Equality Act comes into force. One will cover equal pay and the other will cover the rest of the Equality Act relating to work. The power for tribunals to make recommendations where there has been a successful discrimination claim has not been extended to equal pay claims, as equal pay campaigners had hoped. However, tribunals can make recommendations which have a wider impact than simply on the individual claimant. Equality Act Survival Guide 7

8 DLA Piper s Equality and Diversity Group DLA Piper s Equality and Diversity Group can assist employers to create a legally compliant, equal and diverse workforce as well as harness the benefits of being a proactive and fair employer. The Group supports clients with all their equality and diversity legal needs including: delivering audits for clients which identify areas where further work and development is needed in relation to minority groups; engaging with management boards, senior managers and employees at all levels to fully explore the diversity issues faced in the organisation; providing practical and interactive training and support to complement the audit findings and, if necessary, devise toolkits; preparing action plans for continual review and for cascading throughout the organisation. The services of DLA Piper s Equality and Diversity Group can enhance an organisation s equality and diversity policy to help with the protection of minority groups and the inclusion of all. Please click here for a copy of our Equality and Diversity brochure. key contact Sandra Wallace Partner and Head of Equality and Diversity Group Birmingham T +44 (0) If you have finished with this document, please pass it on to other interested parties or recycle it, thank you. DLA Piper is an international legal practice, the members of which are separate and distinct legal entities. For further information please refer to A list of offices can be found at Copyright 2010 DLA Piper. All rights reserved. APR

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