Very much a legacy of the former Labour Government, much has been made of the new Equality Act 2010, in force since 1 October 2010. But does it do much more than consolidate existing discrimination laws? Appropriately representing both genders, Chris Stack and Jenny Wotherspoon inspect the legal entrails.
What: The Equality Act 2010
When: 1 October 2010
Law stated as at: 8 November 2010
What is the Equality Act 2010?
The Equality Act 2010 (the "Act") came into force on 1 October 2010 sparking a frenzy of media/press coverage. According to the Government Equalities Office: "The Act provides a new cross-cutting legislative framework to protect the rights of individuals and advance equality of opportunity for all…" However, for many employers, the impact of the Act is likely to be limited. This article considers the practical impact of the Act for employers in the marketing and advertising sectors.
What is the same?
The Act is designed to tidy up the inconsistencies that existed in the UK's discrimination legislation. Therefore, in many ways the legal position itself has not changed from a practical perspective, for example:
- the same characteristics are protected – namely, age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation (now referred to as the "Protected Characteristics").
- the previous forms of discrimination such as direct and indirect discrimination remain.
What are the key changes?
Pre-Employment Health Questions
It is now unlawful for employers to ask job applicants questions about their health before a job offer is made.
There are certain limited exceptions. Most notably, employers will be able to ask such questions where they are necessary to establish whether an applicant will be able to carry out a function that is "intrinsic" to the work concerned. However, even then employers should do so with caution because this exception is likely to be narrowly construed.
It is also permitted to ask job applicants whether they require any reasonable adjustments to the interview/selection process in order to comply with disability discrimination legislation.
Employers should review their recruitment practices/application forms and ensure staff involved in the recruitment process are trained on the new provisions.
Pay Secrecy Clauses
The Act has limited the effectiveness of "pay secrecy" clauses which seek to prevent employees from disclosing their pay or bonus details.
Whilst it is not unlawful for an employment contract to contain such a clause, an employer will not be able to enforce such provisions against an employee where he/she has provided/sought pay details to establish whether there is a difference in pay and, therefore, any discrimination. This is known as a "relevant pay disclosure". It is unlawful for employers to discipline or otherwise victimise employees for making such a disclosure.
Harassment and Discrimination by Perception/Association
Employers need to be aware that they can be held liable for harassment by a third party, such as a client or contractor, because the Act has extended this protection. To bring a successful claim an employee would need to point to two previous occasions of harassment and that their employer failed to take reasonable steps to prevent the harassment taking place.
Employers will need to ensure that they have robust procedures in place to monitor and act on complaints of this nature.
Similarly, an employee can bring claim for harassment or discrimination by perception or association. Take, for example, a situation where an employee is bullied on the basis that her brother is openly gay. In that scenario the employee would be able to bring a claim for sexual orientation harassment even though it is by association.
Likewise, a white woman could bring a claim against a potential employer if her job application is rejected on racial grounds because she has an African sounding name. In that situation the individual would have a race discrimination claim based on the employer's mistaken perception.
The Future – Provisions still under consideration by the Coalition Government
There are several concepts within the Act which are either still under review by the Coalition Government, or which are due to come into force at a later date, for example:
- It is intended that private sector employers with at least 250 employees will be obliged to publish information relating to the gender pay gap of their employees. However, this statutory obligation will not be introduced until 2013 at the earliest.
- It is proposed that the Act will be extended to allow employers to positively discriminate when recruiting and promoting employees, however there would be no obligation to do so. It remains unclear as to if or when this provision will come into force.
- The Act has the scope to cover discrimination on the basis of the combination of two characteristics. For example, this would cover an employee who claims not only that they have been discriminated because they are female but because they are, for example, old and a female.
We will provide further updates when we know more about the future of these proposals.
Christopher Stack and Jenny Wotherspoon