On 1 October 2010, the first stage of the implementation of the Equality Act 2010 (the “Act”) will take place. The primary purpose of the Act is to bring together over forty years’ worth of developments in equality law. As a result, for the first time, the principles of equality law applicable to each of the protected characterisics (e.g. sex, race, disability etc.) will be consolidated in a single piece of legislation.
The basic framework of protection against direct and indirect discrimination, harassment and victimisation (together with the majority of the provisions contained in the Act) will come into force on 1 October 2010. From a practical perspective, however, employers should not be unduly concerned that the legal landscape will be entirely altered overnight as the primary purpose of the Act is to restate existing principles. The Act does contain a limited number of provisions that appear for the first time. The Act also tweaks and/or extends the application of certain existing principles.
1. KEY CHANGES:
The key changes that employers should be aware of are as follows:
The extension of the concept of discrimination by “association” (i.e. offering protection for people discriminated against because they are perceived to have, or are associated with someone who has, a protected characteristic) to all protected characteristics, so providing new protection for people like carers of people with disabilities.
The extension of the protection from indirect discrimination (apparently neutral practices with an unjustifiable adverse impact on people of a particular protected characteristic) to disability.
The introduction of a new concept of “discrimination arising from disability”, to overturn a legal judgment that restricted the protection provided to employees by existing disability case law, effectively widening the scope again.
The extension of protection from third party (i.e. people outside employer control) harassment to all protected characteristics, effectively requiring employers to be more responsive and preventative after two complaints of such harassment.
The restriction of circumstances in which employers can ask job applicants questions about disability or health.
Provisions making pay secrecy/confidentiality clauses unenforceable where employees seek information about whether remuneration levels may be affected by a protected characteristic.
We will be providing a series of in-depth follow-up alerts on the key changes listed above.
Provisions the Government are still considering:
While the majority of the Act will be implemented on 1 October 2010, the Government is still considering how to implement some high profile provisions contained in the Act that have received a lot of press attention. These unimplemented provisions include:
Positive action in recruitment and promotion – the Act includes provisions that permit employers to take under-representation into account when selecting between two equally qualified candidates.
Gender pay reporting - the Act contains a power requiring private sector employers with 250 or more employees to publish information about differences in pay between their male and female employees.
Dual discrimination – the Act includes provisions that permit an individual to bring a combined claim in circumstances where that individual believes that he or she has been treated less favourably because of a combination of two protected characteristics.
No timeframe has been given for a decision as to when (or to what extent) these provisions will be implemented.
2. NEXT STEPS
As a simple practical step, employers should update the following paperwork to take account of the Act:
Policies & Procedures: all existing policies and procedures should be reviewed and updated to ensure that any references to existing equality legislation are amended to include references to the Act or are updated to include transitionary wording such as “under applicable law”.
Compromise Agreements: amend the claims section to include references to the Act and include references to section 147(3) of the Act, which sets out the conditions for a qualifying compromise agreement.
We will be making further detailed suggestions in the in-depth alerts to follow.