There are 24 days to go until the new Equality Act comes into force on 1st October. It’s a hefty piece of legislation – 218 sections with 28 Schedules – and covers all aspects of discrimination and harassment in the workplace. Although a consolidating piece of legislation, it also introduces new claims, simplifies and unifies others and will be giving HR and employers everywhere headaches. In the run up to the commencement of the Act I will be taking a look at the headline points. Tomorrow I will cover the Act’s restriction on the use of pre-employment health questionnaires and medicals, today I will set out the main framework of the Act. ACAS has produced a very useful summary of the Act for employers – click here.
The Equality and Human Rights Commission was created to oversee the implementation of the legislation and to promote human rights and equality. As well as providing guidance and formulating policy it has been given some real teeth in enforcing the new Act, as I shall mention in later posts. The website contains large amounts of useful advice that can be downloaded as a PDF file.
Prior to The Equality Act 2010 (“EA10”) anti-discrimination law was contained in a variety of different pieces of legislation – the Race Relations Act, Sex Discrimination Act, Disability Discrimination Act etc. All that legislation will be swept away by EA10 and replaced by the one Act, which will cover all types of discrimination and harassment. The Act protects eight “Protected Characteristics”, which are the same as under the old law. They are;
- Gender Reassignment
- Marriage/Civil Partnership
- Sexual Orientation
In other words it is illegal to discriminate against someone if they fall into one of these categories. It is not, of course, as simple as that. There are different ways of discriminating against a person and in some cases new types of claim will be possible. The four different ways in which a person can be discriminated against are;
- Direct Discrimination
- Associative Discrimination
- Perceptive Discrimination
- Indirect Discrimination, and
Three types of harassment claim are allowed;
- Third Party Harassment
Direct Discrimination is where a person is treated less favourably than another person because of a protected characteristic they have or are thought to have. A person who is turned down for a job or selected for redundancy because they are gay, would be a victim of direct discrimination. If that same person was treated less favourably because they were thought to be gay, they would be a victim of perceptive discrimination. It is irrelevant for perceptive discrimination whether they hold that protected characteristic or not. The only type of Direct Discrimination that can be justified (as a defence) by the employer is in respect of age.
Associative Discrimination is a type of discrimination that gets expanded in scope, it already having applied to race, religion/belief and sexual orientation. It now applies to all protected characteristics except marriage/civil partnerships and pregnancy/maternity, probably because sex discrimination covers it. In other words if someone is treated less favourably because they associate with someone who has a protected characteristic they will be covered. The case of Coleman v Attridge Law  which went all the way to the European Court of Justice, held that the existing UK law had not complied with the European Framework Directive and found that Mrs Coleman, a legal secretary could claim for disability discrimination because she was denied the right to work flexibly to care for her disabled son.
Indirect Discrimination can occur when a person is disadvantaged by a policy or rule that applies to everyone but disadvantages a certain sector, unless that rule or policy can be justified on the basis that it was “a proportionate means of achieving a legitimate aim” in managing the business. The ACAS Guide referred to above gives the hypothetical example of a bookstore that asks all its employees to work on Saturdays, which John, who is Jewish, objects to because it is the Jewish Sabbath day. When he asks to be excused Saturday working the employer dismisses him. Unless the bookstore can demonstrate that it acted proportionately and legitimately, it will probably be guilty of indirect discrimination.
Harassment and Victimisation are not new types of claim under EA10, but they have been extended and changed. Harassment is defined as “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 of offensive environment for that individual”. Note that the conduct must be related to a protected characteristic and claims are possible for harassment by association and perception. It is also possible for a person to claim harassment even if they were not the intended recipient of the conduct. Victimisation is a claim that a worker can make if they are treated badly because they have made or supported a discrimination complaint or grievance under EA10.
A much extended type of claim is for Third Party Harassment. Under EA10 an employer will be liable to an employee who is harassed (see above definition) by a non-employee (a customer or supplier for example) but only after the third incident of the unwanted behaviour occurs, the employer is aware of it and has not taken any reasonably practical steps to prevent it.
Employers need to be reviewing their policies and procedures to ensure compliance. If you need any advice or further assistance please contact me at firstname.lastname@example.org.
I will deal in another post with the defences available to employers under EA10.
Tomorrow: Why employers should not ask pre-employment health questions.
Why not subscribe by clicking on the RSS Feed?
Boring Legal Disclaimer
The above summary is only my understanding of the law and does not constitute legal advice to you. You should not take any action in reliance upon it. Don’t blame me if it goes wrong.