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The Equality Act 2010

The Equality Act will come into force on 1 October 2010. Are you prepared?

The aim of the act is to simplify and standardise important anti-discrimination laws relating to what are now called “protected characteristics”, which are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

The act identifies various types of discrimination and unlawful conduct, which are defined by ACAS, as follows:

Direct discrimination

Someone is treated less favourably than another person because of a protected characteristic. Applies to all protected characteristics.

Associative discrimination

Direct discrimination against someone because they associate with another person who possesses a protected characteristic. Applies to race, religion or belief, sexual orientation, age, disability, gender reassignment and sex.

Discrimination by perception

Direct discrimination against someone because others think he or she possesses a particular characteristic, even if he or she doesn’t. Applies to race, religion or belief, age, sexual orientation, disability, gender reassignment and sex.

Indirect discrimination

This may happen when you have a rule or policy which applies to everyone, but disadvantages a particular protected characteristic. Applies to age, race, religion or belief, sex, sexual orientation, marriage and civil partnership, disability and gender reassignment.

Harassment

Employees can now make a complaint about behaviour they find offensive, even if it’s not directed at them. Applies to all protected characteristics with the exception of marriage and civil partnership and pregnancy and maternity.

Harassment by a third party

Employers are potentially liable for harassment of their staff by people they don’t employ. Applies to sex, age, disability, gender reassignment, race, religion or belief, and sexual orientation.

Victimisation

This is when someone is treated badly, or victimised, because they have made a complaint or raised a grievance under the Equality Act. Applies to all protected characteristics.

How does the Equality Act affect you?

Pre-employment health related checks

The new legislation will make it unlawful to ask questions about disability and health before the job offer stage in a recruitment process, unless it’s absolutely necessary to the role. You can also continue to check whether reasonable adjustments need to be made as part of the selection process, as well as ask questions in order to monitor diversity. However, where these questions are asked on an application form, it should be made clear why they are being asked and must not be taken into account as part of the selection process.

Once a position has been offered, you can ask health related questions that are specifically related to the job.

Review your recruitment processes and ensure that no pre-employment medical questionnaires are issued before an offer is made. You can still use pre-employment health questionnaires after a job has been offered, but check that the questions you are asking as part of the recruitment process are specifically relevant to the job, and ensure the people involved in recruitment in your organisation are aware of these changes.

Employment tribunal powers

The Act also gives greater scope to Tribunals to make recommendations to employers to take steps to reduce or eliminate discrimination in the workplace. It is not intended that these will be binding, but failure to comply could be used in evidence against an employer in future discrimination actions.

Equal pay

Currently, a challenge to pay inequality and other terms and conditions of employment requires a comparison with another person of the opposite sex in the same job, or equivalent role in an organisation.

This will remain the same but the Equality Act now allows a claim of direct pay discrimination to be made, even in the absence of a comparator.

If you have an employee who can show evidence that they would be getting better pay or more favourable terms and conditions of employment if they were of a different sex, then they may have a sex discrimination claim.

Employers should review their pay and reward strategies and processes to ensure there is no potential for gender equality issues to arise.

Pay secrecy

The Equality Act focuses on pay transparency in order to reduce the gender pay gap. The new legislation will make it unlawful for you to discipline staff for discussing and comparing their pay.

If you have secrecy clauses in your employment contracts that prevent employees from discussing their pay with other colleagues, you should remove them and update relevant policies where necessary.

Note, however, that you can ask your employees to keep salary information confidential from people outside the workplace.

Harassment by a third party

The Equality Act will extend the liability of employers for persistent harassment of their employees by third parties to all the protected characteristics covered by the harassment provisions (age, disability, gender reassignment, race, religion or belief and sexual orientation).

The employer will be liable if a third party harasses an employee while at work, and the employee has been harassed on at least two other occasions by a third party (this does not have to be the same third party each time), and the employer hasn’t taken reasonable steps to prevent it from happening again.

Consider in what circumstances your employees might encounter harassment from third parties and implement reporting procedures if necessary to keep track of harassment incidents.

Policies, Procedures and Documents

Consider how your policies, procedures, documents might need to be amended and operated differently to avoid discrimination claims. You may need to review and update the following policies in line with the new legislation:

– equal opportunities
– dignity at work
– bullying and harassment
– grievance
– discipline
– employment contract
– pay and reward strategies

Communicate the changes to the workforce and make sure your managers know how to handle complaints as soon as they are made.