Overview
The Equality Act 2010 received Royal Assent on 8 April 2010. It brings together and restates the existing discrimination legislation and seeks to adopt a single approach where appropriate. It also contains a number of important changes to the law. The majority of the Act will take effect on 1 October 2010.
Analysis
The Act seeks to consolidate the different “strands” of discrimination law: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation. It replicates current definitions to a large extent and retains the need for a comparator (except in pregnancy and maternity cases). Changes include:
New definition: section 13 – 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.
Section 19 will harmonise the definitions of indirect discrimination in relation to all protected characteristics and all fields of activity covered by discrimination law, and will extend the scope of indirect discrimination to cover both disability and gender reassignment.
A notable change is the imposition of an objective test in relation to the two new disability claims (indirect discrimination and discrimination arising from a disability), to replace the more subjective test under the current disability-related discrimination law.
The removal of the comparator requirement is unlikely to lead to any change in the legal effect of these provisions, as the central question is why A has subjected B to a detriment will more often than not involve a consideration of how A treats or would treat other people.
The Act will harmonise protection from harassment in the employment field across most of the protected characteristics (but not pregnancy and maternity, or marriage and civil partnership).
- Association and Perception
The Act will prohibit direct discrimination and harassment based on association and perception in respect of race, sex, gender assignment, disability, sexual orientation, religion or belief and age (direct discrimination based on association or perception in respect of marriage or civil partnership is not covered).
Implementation
The Government Equalities Office (GEO) has published a list of the provisions which will come into force on 1 October. The list includes:
- The "basic framework of protection against direct and indirect discrimination, harassment and victimisation in services and public functions; premises; work; education; associations, and transport".
- The new concept of "discrimination arising from disability", to restore the protection from "disability-related discrimination".
- Preventing employers from asking pre-employment health questions, except in specified circumstances (section 60).
- Making pay secrecy clauses unenforceable (section 77).
- New powers for employment tribunals to make recommendations in relation to the workforce as a whole (section 124).
- The general provisions allowing voluntary positive action (section 158).
The GEO also sets out provisions that the government is still considering how to implement, including:
- Combined discrimination (section 14).
- Gender pay gap information (section 78).
- Provisions relating to positive action in recruitment and promotion (section 159).
What we can offer
- Carry out an audit of your business and ensure you are Act compliant;
- Plan your strategy for removing any identified policies, procedures or barriers that hinder equality in your business;
- Establish a clear and comprehensive policy on equality towards clients; and
- Provide staff with information on their legal responsibilities together with awareness of the Equality Act.
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As this information has been prepared by Maitland Walker LLP as a general guide, we recommend you seek specific professional advice before acting on any information contained within it. No liability can be accepted by Maitland Walker LLP for any action taken or not taken as a result of this information.