The Equality Act was passed on 8 April 2010. Many of the provisions are scheduled to come into force this October.
The Act is intended to represent a comprehensive codification and harmonisation of the current discrimination law which has often been described as inconsistent and difficult to interpret. It also introduces some innovations in discrimination law. Some of the changes are highlighted below.
Disability Discrimination
The Act prohibits indirect disability discrimination (on the same basis as the other strands of discrimination law) for the first time.
There will also be a new right to claim discrimination “arising from” a disability (to counter the effects of the House of Lords’ decision in Malcolm). The new form of discrimination will apply where an employer treats a disabled person unfavourably, where this treatment is because of something arising in consequence of the disabled person’s disability, and the employer cannot show that this treatment is justified.
Claims for failure to make reasonable adjustments and direct discrimination will still apply.
Health Questionnaires
There are provisions restricting employers’ freedom to ask questions about candidates’ health prior to offering posts.
Justifying Less Favourable Treatment
There will be one hurdle for employers to cross if seeking to justify less favourable treatment and this will be consistent across all strands of discrimination. The employer must show its actions were a 'proportionate means of achieving a legitimate aim' which is a potentially higher test than the current one.
Changing the Discrimination Rules
Discrimination based on the victim’s association with someone who has a protected characteristic, or the erroneous perception that the victim has that characteristic, is now specifically made unlawful, and the provisions are now consistent across all strands of discrimination.
The Equality Act also introduces a new claim of “combined discrimination” (where the discrimination was on account of two of the strands) such as because ‘She was a black woman’. Employers’ liability for staff harassment of third parties has been extended.
Improving Transparency
One aim of the Act is to improve transparency and this is mirrored in a number of its reforms.
There is provision to prohibit pay secrecy clauses in contracts of employment.
In relation to Equal Pay, the Act allows the making of Regulations requiring employers with at least 250 employees to publish information relating to the differences in pay between men and women.
Positive Action in Recruitment
The Act allows employers to take positive action when selecting between two equally qualified candidates. This means an employer can specifically choose someone from an under represented group where the candidates are equally qualified. The Conservatives were opposed to this and it remains to be seen whether it will be brought into force.
Summary
While it is, as yet, unclear exactly how some of these new reforms will operate in practice, this is certainly an extremely important Act which will shape discrimination law for years to come. Employers need to be aware of the changes that are being introduced with a view to reviewing their policies and practices and updating the training of their managers and staff to ensure compliance with the new regime and avoid potential problems and claims. The employment team at bto are well placed to guide you through these changes to ensure that your organisation is ready for the new regime.
Contact:
David Hoey