The Equality Act 2010

Learning Log

Section of session

Key learning point

Action Plan

Action Priority When by?

Introduction

Whatever our role within an organisation, we need to know about equality.

An employer may be small or large – its size will often determine the level of formality that exists at work - but despite this, equality law still applies.

Equality law applies whatever:

the sector an organisation is in

the type of systems and processes that are used.

All employers have legal obligations in relation to equality. Employers of choice are forward thinking businesses that recognise the benefits to everyone of showing respect and dealing with issues openly and fairly at work.

The Equality Act 2010 is effective from October 2010 and this course will enable you to:

recognise the key features and context of the Equality Act 2010

describe the types of discrimination and various protected characteristics

identify the impact of the Equality Act on colleagues, on your organisation and on working life

create a brief plan to review equality in your workplace which outlines necessary measures for improvement.We may think of the application of the Act in relation to employment but it’s important to remember that goes much further that this and applies to many different situations such as being treated in a hospital, purchasing goods and services, using public transport and so on.In this course we will focus life at work when considering how the Act applies.The Act is designed to protect individuals from unfair treatment and to promote a fair and more equal society in

England, Scotland and Wales.

Purpose of the ActThe purpose of the Equality Act 2010 can be summarised as: the bringing together of several different pieces of UK anti-

discrimination legislation

and

the updating and extension of these where required.

The Act defines certain actions that are not permissible and that are considered unlawful. We’ll look at these closely later but for now, can list them as:

direct discrimination associative discrimination perceptive discrimination indirect discrimination harassment third party harassment victimisation

The Act also identifies so-called ‘protected characteristics’ which are best described as certain attributes that regular people possess which the law considers should be safe-guarded. When we say ‘safe-guarded’ we mean against the actions shown above.

In summary, these protected characteristics are:

age disability gender reassignment marriage and civil partnership pregnancy and maternity race religion or belief sex sexual orientation.

Background

The Equality Act of 2010 is effective from 1st October 2010.

It replaces nine major pieces of legislation and lots of smaller pieces of legislation and draws together under one roof all the important UK anti-discrimination laws.

In addition to this, the Act introduces some new anti-discrimination features and is therefore a combination of rights and responsibilities that have

stayed the same changed been extended been introduced for the first time.

Let’s look at the background to the Act.

In the UK, we have seen a great deal of equality legislation in the past thirty to forty years. Racial discrimination and sex discrimination laws were introduced in the 1970’s to ensure that people of different races, and men and women were treated equally and got the same pay for the same job.

Later, in the 1990s anti-discrimination laws for disabled people came into being and then in 2004, legal rights were given to lesbian, gay and bisexual to enable them to become partners, like married people.

With all of these pieces of legislation it would be reasonable to conclude that equality was being successfully addressed within the UK. However, this was not universally felt to be the case; there existed some scepticism as to the effectiveness of UK equality laws.

What’s more, developments in European law (directives) as well as case law meant that the equality laws were constantly being challenged.

All of this prompted a review of UK equality legislation, beginning in 2005 with the Discrimination Law Review and culminating with the announcement in June 2008 by Harriet Harman, the then Leader of the House of Commons, of a new Single Equality Bill. Ultimately, the Government published the Equality Bill on 27 April 2009.

Before May 2010, the Conservative Party – then in opposition - had suggested that should it come to power, it would repeal some of the measures of the Equality Act 2010, particularly in relation to gender pay).

On behalf of the new coalition government, the Conservative Home Secretary, Theresa May, later announced the intention to continue with the terms of legislation. It will be interesting to observe whether the Act prevails in the long term with all its original features intact.

Types of Discrimination

As we saw in our introduction there are a number of different actions outline in the 2010 Act. These are the types of unlawful discrimination that can arise.

Direct Discrimination

This occurs when someone is treated less favourably than another person because of a protected characteristic (we’ll define the protected characteristics later).

Associative Discrimination

This is discrimination against a person because they have an association with someone with a particular protected characteristic.

The 2010 Act extended application of this action to cover age, disability, gender reassignment and sex; previously, it applied to only race, religion or belief, and sexual orientation.

Perceptive Discrimination

This is discrimination against a person because the discriminator thinks the person possesses a protected characteristic, even if they do not in actually do so.

The 2010 Act extended application of this action to cover disability, gender reassignment and sex. Before, it had applied only to age, race, religion or belief and sexual orientation.

Indirect Discrimination

This occurs where a policy, rule or procedure applies to everyone but has a disproportionate impact on people with a protected characteristic.

The 2010 Act extended this action to apply to disability discrimination and gender reassignment.

Harassment

The 2010 Act defines harassment as ‘unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual'.

It applies to all the protected characteristics except for pregnancy and maternity and marriage and civil partnership.

An employee can complain of behaviour they find offensive even if it is not directed at them. Third Party Harassment

The Act makes employers potentially liable for harassment of their employees by people they do not employ. An employer will only be liable if the harassment has occurred on at least two previous occasions, and if it knows that it has taken place and has not taken reasonable steps to prevent it from repeating.

Third party harassment applies to all the protected characteristics (see later) except for pregnancy and maternity and marriage and civil partnership.  

Victimisation

This occurs when an employee is treated badly because they have made or supported a complaint or raised a grievance under the Equality Act; or because they are suspected of doing so.

If an employee has maliciously made or supported an untrue complaint they are not protected from victimisation.

Protected Characteristics

Here we are going to outline the ‘protected characteristics’ identified by the Equality Act 2010, from the perspective of employment.

Remember that not all the actions identified in the previous section as unfair discrimination apply to all the protected characteristics.

Age

Before the 2010 Act employers were already prevented from saying without any justification that an applicant was too old or too young for a job. The effect of the Act is to underline the unlawfulness of discriminating on the basis of age.

Interestingly, if an employer can justify the reasons for treating someone differently because of their age, this is not considered to be unlawful (i.e. it is not direct or indirect discrimination).

An example might be of an employer refusing to consider a job applicant on the basis of age (i.e. being too young) since the role reasonably calls for an amount of experience and it is not viable to provide training.

Employers are permitted to use a default retirement age of 65 when writing contracts of employment, so a worker’s employment is automatically fairly terminated when this age is reached. Be careful here though; the government has announced the end of the legal default retirement age - we will have to see what effect this has on age discrimination.

Disability

The Act says that a person is disabled if they have a physical or mental impairment which has a substantial and long term adverse effect on their ability to carry out normal day-to-day activities.

Disabled people have been protected by UK for some time before the 2010 Act cam into effect. This included the requirement for an employer to make reasonable adjustments to enable a disabled person to work for them.

Under the 2010 Act indirect discrimination, associative discrimination and perceptive discrimination all became unlawful in relation to disabled people and discrimination arising from a disability is forbidden.

Within this area of the Act falls the matter of pre-employment health questions, the use of which is now limited to certain circumstances only. Such circumstances include the use of questions to determine whether reasonable adjustments are needed for a new employee. These types of questions are less restricted once a job offer has been made.

Pregnancy And Maternity

The Act gives protection against direct discrimination to women who are pregnant or on maternity leave during the period of pregnancy and during statutory maternity leave.

When making a decision about a woman’s employment, an employer is not permitted to take into account a period of absence due to pregnancy-related illness.

Marriage And Civil Partnership

The 2010 Act makes it unlawful to discriminate directly or indirectly against people who are married or in a civil partnership.

Gender Reassignment

Here employers must consider people who are proposing to, are starting or have completed a process to change gender – transsexual people. Transsexuals are not the same as transgender people who are also known as cross dressers and do not come within the scope of the Act. This is because transgender people do not intend to live permanently in their opposite gender.

Before the 2010 Act it was necessary for a person to be under medical supervision towards gender change if they were to be protected by the law, but this provision has been removed.

Indirect discrimination, associative discrimination and perceptive discrimination are all unlawful in relation to transsexual people as a result of the 2010 Act.

An example might be the absence of a transsexual person from work because they are undergoing gender reassignment. It would not be permissible for an employer to treat that person less favourably than if they were absent from work because of sickness or injury.

Race

Within the Act, ‘race’ includes colour, nationality and ethnic or national origins.It is unlawful for employers to discriminate in any way on the grounds of a person’s race.

Religion Or Belief

An employer must be aware that people are protected against all types of discrimination on the grounds of their religion or beliefs (or the absence of these). The Act says that to be protected a:

religion must have a clear structure and belief system

belief (any religious or philosophical belief or lack of such belief) must satisfy various criteria.

There is no protection for political beliefs.

Sex

It is not lawful to treat someone less favourably on the basis of their sex. Protection applies against all types of discriminatory actions provided for by the 2010 Act.

Sexual Orientation

People are protected against all types of discrimination on the grounds of their sexual orientation. This means those who are bisexual, gay, heterosexual and lesbian.

We have now considered the:

types of discrimination that are unlawful

protected characteristics

We should remind ourselves that not all the types of discrimination apply to all the characteristics. To help, it is useful to refer to the Handout which reproduces a table from ACAS (the Advisory, Conciliation and Arbitration Service) showing the effect of the 2010 Act.

What Else?

As well as defining unlawful actions and protected charateristics, the Equality Act of 2010 sets out some other provisions.

Dual Discrimination

Claims for direct discrimination on two combined grounds (but no more than two) are allowed by the 2010 Act. For example, for a claim can be made on the basis of discrimination for being a disabled woman. 

Positive Action

As with previous equality legislation, the Act allows for what is known as positive action. So an employer can lawfully remove barriers that might prevent certain people from being employed by or progressing through its organisation.

In practice, an employer can favour a candidate from an under-represented minority if, for example, two applicants for a job or promotion are equally well qualified. Currently, this this is an option rather than a legal obligation.

Equal Pay – Direct Discrimination

Historically, it was most common for an equal pay challenge to be made by the complainant (i.e. the aggrieved employee) using a comparison with a real person of the opposite sex. The 2010 Act means a claim of direct pay discrimination can be made whether or not a real person can be found to compare with.

Pay Secrecy

As a result of the 2010 Act, it is unlawful for employers to prevent or restrict employees from having a discussion to establish if differences in pay exist that are related to protected characteristics.

Employment Tribunals

The Act enables an employment tribunal to recommend that an employer take steps to eliminate or reduce the effect of discrimination on a claimant and on other employees within that organisation.

Objective Justification Test

For some types of unlawful actions, an employer may have a reasonable defence if it can 'justify' how it treated a person. The effect of the 2010 Act is that an organisation must show that its conduct was a 'proportionate means of achieving a legitimate aim' is the discrimination is to be fair. The 2010 Act introduced a single objective 'justification' test.

Public Bodies

Single Equality Duty - before 2010, there existed three separate 'public sector equality duties' applying to public bodies for race, disability and gender; now there is a single public sector equality duty, which embraces other grounds such as sexual orientation and religious belief, as well as the existing grounds.

Transparency - the 2010 Act introduced:

an obligation on public authorities to report on their disability employment rate

a stronger requirement for public bodies to tackle private sector discrimination through public procurement policies. 

When Unfairness Arises - Employers

What happens when a worker complains that their employer, a colleague or an agent of the employer has unlawfully discriminated against them?

The Equality Act 2010 places on the employer a responsibility to deal with the complaint. The employer must find out if there has been unlawful discrimination and, if so, put the situation right.

And who can a worker complain to?

A worker may take a complaint to their employer and / or to an employment tribunal.

When making a complaint to their employer, this is known as a grievance. The employer should implement its grievance procedure (usually found in a staff handbook or the employee’s contract of employment) so that matters are correctly addressed. You may wish to take a look at your employer’s grievance procedures to get a better feel for this.

When making a complaint to an employment tribunal, the employee must follow a particular procedure. This may very well start with seeking guidance and input from ACAS.

The employment tribunal is like a court system for employment issues. If a worker’s complaint is felt to be justified, the employment tribunal will allow the case to be heard.

Where a worker’s claim for unfair discrimination is successful, the employment tribunal is able to make what is known as a ‘remedy’. The means one of the following:

make a declaration that an employer has discriminated

award compensation for the worker’s financial loss (for example, loss of earnings), and damages for injury to the worker’s feelings (there is no legal upper limit on the amount of compensation)

make a recommendation requiring the employer to do something specific within a certain time to remove or reduce the bad effects which the claim has shown to exist, for example, providing a reference or reinstating the person to their job

make a recommendation requiring the employer to do something specific within a certain time to remove or reduce the bad effects which the claim has shown to exist on the wider workforce (although not in equal pay cases) such as introducing an equal opportunities policy.

With indirect discrimination, if an employer can prove that it did not intend what it did to be discriminatory, the tribunal must consider all the remedies before looking at damages.

Although not common, the tribunal can order an employer to pay the legal costs and expenses of the worker on top of its own legal costs and expenses,

When Unfairness Arises – Others

So far we have looked at situations concerning complaints by workers in relation to the actions of their employer.

There are also cases where complaints are made by workers about the actions of an employee (e.g. a colleague) or an agent (e.g a consultant or other person acting under contract for the employer).

In some situations, an employee or agent may be personally responsible for their own acts of discrimination, harassment or victimisation carried out during their employment or while acting with the employer’s authority.

Such personal responsibility arises where the employment tribunal finds that the employer is also liable as the employer or principal, or where the employer would be responsible but can show that:

it took all reasonable steps to prevent the employee discriminating against, harassing or victimising someone, or

its agent acted outside the scope of its authority.

An employee or agent will not be responsible for discrimination if their employer has told them there is nothing wrong with what they are doing and the employee or agent reasonably believes this to be true.

It is a criminal offence for an employer to make a false statement which an employee or agent relies upon to carry out an unlawful act. Such a act is punishable by a fine.

Planning

The Equality Act 2010 applies to ‘workers’; this means all employees, including trainees and apprentices, as well as job-seekers and so on.

The scope of the Act is very broad and it applies to every context of work life, including:

recruitment and selection team working communications. pay and reward training and development progression and selection for promotion discipline and grievance.

Having acknowledged that each of us has to be equality-aware, it is appropriate for all of us to review equality in our workplaces to some extent. Our roles will determine the detail of such a review, but here, we will consider how to put together an action list to implement measures for improvement, where these are needed.

We have already mentioned ACAS in this course. ACAS is an independent organisation funded by the Department for Business Innovation and Skills. It has a leading role in equality at work as it aims to improve organisations and working life through better employment relations. It helps with employment relations by supplying up-to-date information and free independent advice. It works with employers and employees to solve problems and improve performance.

ACAS makes the recommendation that employers review, monitor and act in relation to equality at work.

Review

This involves taking the organisation’s existing equality policy and reviewing and updating it – or if necessary, writing a new one.

What does your organisation’s policy look like? Have you read it lately?

An equality policy should incorporate a statement of the employer’s:

aim to encourage, value and manage diversity commitment to providing equality for all wish to attain a workforce that is representative of the communities from

which it is drawn to secure the widest pool of talent possible.

As well as clear identification of the areas of discrimination the employer will counter.

Monitor

ACAS suggest monitoring of how the organisation’s equal opportunities policy is working in practice. This calls for gathering individual personal information on the diversity of potential recruits or existing employees, and comparing and analysing this against:

other groups of employees in the company jobseekers in the local community jobseekers in the broader national employment market.

Acting

Finally, ACAS recommend taking action, where it is needed, to address inequality or to promote diversity. This requires an action plan which details what will be done, by when and by whom. The action plan should:

set dates on when things such as monitoring, reviewing procedures, and training will be done

expand on how these will be done and by whom set out how harassment and bullying and will addressed set measures of success including how and when these will be evaluated.

Examples of actions arising from such a plan might include items which:

encourage more people to apply for posts by considering part-time working or job-sharing

lead to advertising widely to attract a diverse workforce

are targeted at working with the community and offering opportunities to students

address targets such as increasing the number of management jobs open to job sharing to allow more women to do them or interviewing more disabled people

implement positive action, where appropriate.

Conclusions

The Equality Act of 2010 came about as a result of many previous pieces of legislation, of developments in Europe and in case law, and of scepticism as to the real impact of legislation to date. This scepticism may be well founded if we consider that despite all that has gone on before, in early 2010 still:

only 15 Members of Parliament were people of non-white British race – if parliament were to reflect the diversity of UK, there should be 60

only 3 top judges were people of non-white British race

fewer than 1 in every 6 top people in universities was a woman - 3 out of every 6 would be women if the number were fair

only 1 out of every 10 top people in big companies was a woman.

It is clear that equality is an evolving area of the UK legal system. This means there is a real need for us all to keep up to date on events and the developments in the legal arena.

As we have seen, the jury is still out in some respects on just how and to what extent the Coalition government implements the 2010 Act. Also, the default retirement age is to be scrapped and the impact of this is as yet, unknown.

In terms of other developments, the government is drawing up a voluntary National Equality Framework for Business that will apply to the private sector. This is due to come into force in the Spring of 2011 and will be a benchmarking and improvement tool aimed at helping businesses better understand equality legislation and set them on a path towards best practice.

Information Sources

ACAS

www.acas.org.uk

Equality and Human Rights Commission

www.equalityhumanrights.com

Business Link

www.businesslink.gov.uk

Employment Tribunal

www.employmenttribunals.gov.uk