There are 24 days to go until the new Equality Act comes into force on 1^st 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;

1. Age
2. Disability
3. Gender Reassignment
4. Marriage/Civil Partnership
5. Race
6. Religion/Belief
7. Sex
8. 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;

1. Direct Discrimination
2. Associative Discrimination
3. Perceptive Discrimination
4. Indirect Discrimination, and

Three types of harassment claim are allowed;

1. Harassment
2. Third Party Harassment
3. Victimisation

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 [2008] 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 michaelscutt@dalelangley.co.uk.

I will deal in another post with the defences available to employers under EA10.

Tomorrow: Why employers should not ask pre-employment health questions.

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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.

Related posts:

1. Disability Discrimination Claims to Get Easier? Equality Act 2010 #5
2. What Should Employers do About Third Party Harassment: Equality Act 2010 #4
3. Why Employers Shouldn’t Ask Pre-Employment Health Questions: Equality Act 2010 #2

The Equality Act 2010: 24 Days and Counting #1 originally appeared on Jobsworth by Michael Scutt on 06/09/2010.

Yesterday Ian Barratt of Mind Strengths Ltd published his “Seven Top Stress Management Tips for Employees”.  Today I am publishing my “top tips” for employers hoping to avoid claims for stress at work from being commenced against them.   

First, some background. Stress at work is a complex and wide-ranging subject, touching on many aspects of employment and personal injury law. The claims will arise either under the law of personal injury (in negligence) or under the Protection from Harassment Act 1997 (PHA) or, alternatively for constructive dismissal and/or discrimination.  All four could be raised in the same instance, although it is not possible for an employee to sue in negligence and unfair dismissal unless the circumstances leading to the injury are independent of the facts relating to the dismissal.  Although many employers may feel “under siege” from all the rights that employees have, they should note that the law is not kindly disposed towards employees in this area: stress at work claims are difficult and expensive for employees to pursue successfully.  

No employer can be immune from ever finding themselves facing a claim from an employee, but following the tips below ought to reduce the risk of a claim arising or, if one does, of being successful.  There are many legal aspects to allegations of “stress at work” and care needs to be taken when an employee asserts that the employer has, in some way, caused him/her to become unwell.  Most allegations will state either that the employer has overloaded the employee with work or not provided enough support/resource to do the job properly or that a line manager has bullied/harassed/victimised the employee.  

It is also not uncommon for employees to claim that they are suffering from “stress” when they fall into dispute with their employers or disciplinary/performance management processes are commenced against them.  

How to mitigate the risk of these claims arising?   

1. Adopt best practice  

The Health & Safety Executive publishes a great deal of information on the subject.  In particular it has devised “Management Standards” which “define the characteristics, or culture, of an organisation where the risks from work related stress are being effectively managed and controlled. … The Management Standards cover six key areas of work design that, if not properly managed, are associated with poor health and well-being, lower productivity and increased sickness absence.” There are six management standards covering demands; control, support, relationships, role and change.  The TUC and ACAS also publish useful materials on stress at work.  

2. Be aware.  

Carry out risk assessments of the roles your employees are expected to undertake and the workplace in which the role is to be carried out.  This is not only integral to the HSE’s Management Standards but is a statutory requirement under the Health and Safety at Work Act 1974 (HSWA) and the Management of Health and Safety At Work Regulations 1999 (MHSW).  The HSWA applies to any employer with more than five employees and require “a written statement of his general policy with regard to health and safety at work of his employees”.  The MHSW requires a risk assessment “for the purpose of identifying the measures he needs to take to comply with” his particular statutory duties. Breach of this requirement can make an employer liable at civil law. However, a greater incentive for compliance is that an employer who does carry out a proper risk assessment is going to be better positioned to defeat a claim for stress at work than one who does not because the risk assessment process should uncover any obvious factors potentially giving rise to stress.  An employer will only be liable in negligence if his breach of duty of care to the employee was reasonably foreseeable.     

Take action before it is too late

3. Have a stress policy and adhere to it  

This might include providing employees with access to a counselling service or a telephone helpline. The courts look favourably on employers who do so, but the provision of such facilities won’t be enough on its own to rebut liability.  

4. Act fairly and consistently  

Stress claims can arise from incidents of bullying/harassment and victimisation.  Put in place policies promoting equality in the workplace – and enforce them.  Claims for discrimination can arise, apart from any other considerations over stress and there is no maximum cap for compensation unlike with unfair dismissal claims. We see many claims where the situation has been caused by fellow employees displaying completely inappropriate behaviour in the workplace, or line managers being “over-zealous” in trying to fulfil their roles. Ensure that line managers manage fairly and in a “human” fashion.   An employee suffering bullying at work from other colleagues or line managers may be able to bring a claim under the PHA for “distress” caused.  

5. Contracts of employment (1)   

Ensure that you have the contractual right (either in the contract of employment or the contractually binding section of the Employee Handbook) to require the employee to attend a doctor for the purpose of a medical report.  This can be a useful tool if the employee is off sick for any length of time because it means you can get a medical report from an independent expert rather than relying solely on the letters from the employee’s GP, who will often be very keen to be (too) supportive of the employee.  

6. Contracts of employment  (2)   

They should be drafted so that any entitlement to full sick pay (as opposed to statutory sick pay (SSP)) is in the discretion of the employer or, preferably, full sick pay will not be paid if an employee goes on sick leave immediately after having been asked to attend a disciplinary or performance management meeting.  Employees tend to become well again once they are not being paid.  SSP is payable in most cases (click here for main terms) for 28 weeks at the rate of £79.15.  Click here for more details on SSP.   Amending employees’ contracts of employment can be a complicated process, fraught with challenges of its own.  Please seek legal advice before deciding to do so.  

7. Act decisively  

If a stress at work problem looks like it might be rearing its ugly head, don’t ignore it.  Take legal advice as soon as possible.  

Related posts: Coming Soon … Miserable Monday  

If you are an employer or employee and need advice on your situation please contact me on 0207 464 8433 or at michaelscutt@dalelangley.co.uk.  

 None of the above material (or anything published anywhere on this blog by me or anyone else) constitutes legal advice to you.  You should not  rely on it and if you need legal advice about your situation you should take specific legal advice on your own situation.  I am always happy to provide legal advice via Dale Langley & Co.

Related posts:

1. Seven Top Stress Management Tips for Employees
2. Stress at work
3. UK Banks Facing Rising Lawsuits over Stress? Really?

Seven Ways for Employers to Avoid Stress at Work Claims originally appeared on Jobsworth by Michael Scutt on 19/01/2010.