The Equality Act 2010 came into force on 1 October 2010. The aim of the act was to simplify and standardise important anti-discrimination laws relating to “protected characteristics”.
In this article, we will outline the principles of the Equality Act 2010 to help
What are the 9 protected characteristics under the Equality Act 2010?
The 9 protected characteristics under the Equality Act 2010 are:
- age,
- disability,
- gender reassignment,
- marriage and civil partnership,
- pregnancy and maternity,
- race,
- religion or belief,
- sex, and
- sexual orientation.
The Equality Act 2010 outlines various types of discrimination and unlawful conduct. These are defined as follows.
1. Direct discrimination
This is when someone is treated less favourably than another person because of a protected characteristic. This applies to all protected characteristics.
2. Associative discrimination
Associative discrimination is direct discrimination against someone because they associate with another person who has a protected characteristic. This applies to race, religion or belief, sexual orientation, age, disability, gender reassignment and sex.
3. Discrimination by perception
Discrimination by perception is direct discrimination against someone because others think they have a particular characteristic (even if they don’t. Under the Equality Act 2010, discrimination by perception applies to race, religion or belief, age, sexual orientation, disability, gender reassignment and sex.
4. Indirect discrimination
This may happen when you have a rule or policy which applies to everyone, but disadvantages a person or group with a particular protected characteristic.
Indirect discrimination applies to age, race, religion or belief, sex, sexual orientation, marriage and civil partnership, disability and gender reassignment.
5. Harassment
Harassment applies to all protected characteristics, with the exception of marriage and civil partnership and pregnancy and maternity.
Note that employees can make a complaint about behaviour they find offensive, even if it’s not directed at them.
6. Harassment by a third party
Employers are potentially liable for harassment of their staff by people they don’t employ. This applies to sex, age, disability, gender reassignment, race, religion or belief, and sexual orientation.
7. Victimisation
This is when someone is treated badly, or victimised, because they have made a complaint or raised a grievance under the Equality Act. Victimisation applies to all protected characteristics.
Employment tribunal powers under the Equality Act 2010
The Act also gave greater scope to Tribunals to make recommendations to employers to take steps to reduce or eliminate discrimination in the workplace.
What measures can employers take to avoid falling foul of the Equality Act 2010?
Pre-employment health-related checks
The legislation makes 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 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.
If you are issuing pre-employment medical questionnaires before an offer is made, you should stop doing this. You can use pre-employment health questionnaires after a position has been offered to the successful candidate, but check that the questions you’re 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 the Equality Act 2010.
Equal pay and the Equality Act 2010
Prior to the Equality Act, a challenge to pay inequality and other terms and conditions of employment required a comparison with another person of the opposite sex in the same job, or equivalent role in an organisation.
The Equality Act 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 regularly to ensure there’s no potential for gender equality issues to arise.
Pay secrecy
The Equality Act 2010 focuses on pay transparency in order to reduce the gender pay gap. The legislation made it unlawful for employers 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 under the Equality Act
The Equality Act 2010 extended 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).
Employers are 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 to avoid discrimination claims. You’re advised to regularly review and update the following policies in line with the legislation:
- equal opportunities
- dignity at work
- bullying and harassment
- grievance
- discipline
- employment contract
- pay and reward strategies
Training on the Equality Act 2010
Ensure your managers are trained in the key principles of the Equality Act and that they know how to handle complaints and undertake grievance investigations effectively.
