Steps are being taken to ease lockdown restrictions; however, life is still a long way from being back to normal. Following our article in May when we discussed Wills, Probate and Powers of Attorney under lockdown, this article looks in more detail at the...
The Equality Act 2010 replaced nine major pieces of discrimination legislation and other ancillary measures introduced over the last forty years. The core provisions of the Act came into force on 1 October 2010.
As well as harmonising existing discrimination laws, the Act aims to advance equality and to extend protection from unfairness and discrimination on grounds of disability; age; sex; sexual orientation; gender reassignment; race; religion or belief; marriage and civil partnership; and pregnancy and maternity. These are now called ‘protected characteristics’.
Whilst many of an employer’s obligations regarding discrimination in the workplace remain the same, there are some key changes that do need to be addressed as the Act extends some protections to characteristics that were not previously covered and also strengthens some aspects of equality law.
Types of Discrimination – Definitions
Direct discrimination occurs where the reason for a person being treated less favourably than another is one of the protected characteristics covered by the Act. The new definition is broad enough to cover instances where someone does not have the protected characteristic but has suffered less favourable treatment because of their association with someone who does (discrimination by association) or where the victim of less favourable treatment is wrongly thought to have a protected characteristic (perception discrimination).
Indirect discrimination occurs when a policy or practice which applies in the same way to everyone has an effect which particularly disadvantages people with a protected characteristic, unless the person applying the policy or practice can justify it by demonstrating that it is a proportionate means of achieving a legitimate aim.
Indirect discrimination can also occur when a policy would put a person at a disadvantage were it to be applied. For example, where a person is deterred from doing something, such as applying for a job, because a policy which would be applied would result in his or her disadvantage, this may also be indirect discrimination.
Indirect discrimination now covers all the protected characteristics apart from pregnancy and maternity.
Harassment is unwanted conduct that is related to a relevant protected characteristic that has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant or of violating the complainant’s dignity.
Harassment applies to all the protected characteristics apart from pregnancy and maternity and marriage and civil partnership. The definition means that employees can complain of behaviour they find offensive, even if it is not directed specifically at them and the complainant need not possess the relevant protected characteristic themselves.
Third Party Harassment
Under Section 40 of the Act, an employer was potentially liable for harassment of an employee by a third party, for example a customer or client. However, the third party harassment provisions were repealed with effect from 1 October 2013.
Victimisation takes place where one person treats another badly because he or she has, in good faith, done a ‘protected act’, for example taken action, or supported any action taken, for the purpose of the Act, including in relation to any alleged breach of its provisions. Victimisation also occurs where one person treats another badly because he or she is suspected of having done this or of intending to do so. A person is not protected where he or she maliciously makes or supports an untrue complaint. Only an individual can bring a claim for victimisation.
Under the Act, victimisation is technically no longer treated as a form of discrimination, so there is no longer a need to compare treatment of an alleged victim with that of a person who has not made or supported a complaint under the Act.
Specific Points to Note
The definition of disability remains essentially the same. 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. However, the Act removes the requirement to consider a list of eight capacities, such as mobility or speech, hearing or eyesight, when determining whether or not a person is disabled. This change will make it easier for some people to demonstrate that they meet the definition of a disabled person.
The Act replaces the concept of disability-related discrimination with a new protection from discrimination arising from disability. This means that a person discriminates against a disabled person if they treat them unfavourably because of something arising from, or in consequence of, their disability where the employer or other person acting for the employer knows, or could reasonably be expected to know, that the employee has a disability, unless the treatment can be shown to be a proportionate means of achieving a legitimate aim. This definition means that there is no need for a disabled employee to establish that his or her treatment is less favourable than that experienced by other, non-disabled employees.
The concept of indirect discrimination has been extended to the protected characteristic of disability.
As before, an employer has a duty to make reasonable adjustments to help employees overcome disadvantages arising from an impairment. Failure of the duty cannot be justified. The Act makes clear that this duty includes a requirement to provide an auxiliary aid, such as job application forms in large print for someone with a visual impairment or a specially adapted computer keyboard for an employee with arthritis, if this would overcome the substantial disadvantage to the disabled person.
The Act protects people of all ages. However, different treatment because of age is not unlawful direct or indirect discrimination if the employer can justify it – i.e. can demonstrate that it is a proportionate means of achieving a legitimate aim. Age is the only protected characteristic that allows an employer to justify direct discrimination.
As of 6 April 2011, it is no longer lawful to compulsorily retire an employee on the grounds of age unless the dismissal can be objectively justified as a proportionate means of achieving a legitimate aim, which is not an easy test to pass.
Group risk insured benefits are exempt from the principle of equal treatment on the grounds of age, so employers who provide such benefits can cease to provide or offer them to employees aged 65 and above, even if they continue to work beyond that age. The age at which group risk insured benefits can be withdrawn will increase in line with increases in the State Pension Age.
Employers can continue to use the development bands of the national minimum wage without the threat of legal challenge on the grounds of age discrimination.
A transsexual person now has the protected characteristic of gender reassignment.
The Act defines this as being where a person has proposed, started or completed a process to change his or her sex. Note that he or she is no longer required to be under medical supervision to come within the definition.
It is discrimination to treat transsexual people less favourably for being absent from work because they propose to undergo, are undergoing or have undergone gender reassignment than they would be treated if they were absent through illness or injury.
In January 2016, a report by the Women and Equalities Committee made recommendations calling for the Government to act to ensure full equality for trans people. One of the report's recommendations was that the use of the terms 'gender reassignment' and 'transsexual' in the Equality Act are outdated and misleading, as the preferred term is 'trans'. Please note that the terms used in this article are those used in the Act itself. However, employers are advised to make sure that relevant policies use the more up-to-date terminology.
Pre-Employment Health Questionnaires
In order to protect job applicants with a disability from discrimination during the recruitment process, the Act prohibits the use of questionnaires on an applicant’s general health and related issues prior to a job offer being made. This includes prohibiting the use of such questionnaires before selecting a pool of applicants from whom the successful candidate will be chosen.
The measure does not prevent employers from asking job applicants any questions about their health but stipulates that they are only allowed to do so for specific purposes, for example deciding whether a job applicant can carry out a function that is essential (‘intrinsic’) to the work concerned.
The Act allows an employee to bring a claim of direct pay discrimination using a hypothetical comparator where no actual comparator of the opposite sex exists.
Pay Secrecy Clauses
The Act makes pay secrecy clauses unenforceable and provides that individuals who discuss their pay with one another in order to find out if there might be pay discrimination with regard to any of the protected characteristics are protected from victimisation, even if their employment contract requires them not to discuss their pay.
As with previous equality legislation, the Act allows an employer to take ‘positive action’ in certain situations. Positive action is lawful where it is necessary to prevent those who share a particular protected characteristic from suffering a disadvantage connected with that characteristic or if their participation in an activity is disproportionately low.
The Act also contains provisions that allow positive action specifically in the process of recruitment and promotion, in limited circumstances. These provisions mean that it is not unlawful to recruit or promote a candidate who is of equal merit, in relation to the specific job or position for which they have applied, to another candidate for the same post if the employer reasonably thinks that:
- the candidate has a protected characteristic that is under-represented in the workforce; or
- people with that characteristic suffer a disadvantage connected to that characteristic.
This kind of positive action is only allowed where it is a proportionate way of addressing the under-representation or disadvantage. The Act does not allow an employer to appoint a less suitable candidate just because he or she has a protected characteristic that is under-represented or disadvantaged.
Section 14 of the Act contains provisions that would allow individuals who believe they have been treated less favourably on account of two protected characteristics to bring a combined claim. For example, a woman may feel she has suffered discrimination on account of both her sex and her age. However, this provision has not been implemented.
Genuine Occupational Requirements
Under the Act, there is now a single occupational requirement that must exist for direct discrimination in favour of a particular protected characteristic to be lawful. This applies to all the protected characteristics and differs from the previous exceptions for occupational requirements in that it makes clear that the requirement must pursue a legitimate aim and that the burden of showing that the exception applies rests on those seeking to rely on it.
Where employment is for the purposes of an organised religion, an employer is permitted to apply a requirement to be of a particular sex or not to be a transsexual person, or to make a requirement related to the employee’s marriage or civil partnership status or sexual orientation, but only in narrowly defined circumstances.
In March 2017, the Government launched a consultation entitled 'Caste in Great Britain and Equality Law', seeking views on how best to ensure that appropriate and proportionate legal protection exists for victims of caste discrimination.
The consultation suggested two potential ways of achieving this, which were:
- to implement a duty, which was introduced by Parliament in 2013, to bring caste discrimination within the scope of the Equality Act; or
- to rely on emerging case law, which in the Government's view shows that a statutory remedy against caste discrimination is available through existing provisions in the Act, and to invite Parliament to repeal the duty on that basis.
Having considered the responses, the Government decided not to add caste to the list of protected characteristics under the Act on the ground that it already affords this protection. The decision takes into account that caste is an exceptionally controversial, deeply divisive issue, and legislating for it to become a protected characteristic would be as divisive as doing the same for 'class' would be across British society more widely. Reliance on case law, and the scope for individuals to bring claims of caste discrimination under 'ethnic origin' rather than caste itself, is likely to create less friction between different groups and help community cohesion.
The Burden of Proof
In any claim where someone alleges discrimination, harassment or victimisation under the Act, the burden of proving his or her case starts with the claimant. Once the claimant has established sufficient facts, which in the absence of any other explanation point to a breach having occurred, the burden then shifts to the respondent to demonstrate that no breach of the provisions of the Act has occurred.
Extension of Employment Tribunal Powers
Previously, an Employment Tribunal could only make recommendations for the benefit of the individual claimant. The Act extends this power so that Tribunals can now make recommendations that an employer takes steps to eliminate or reduce the effect of discrimination on other employees.
Further information and Codes of Practice supporting the Act can be found on the website of the Equality and Human Rights Commission.
Employers should ensure that their equal opportunity policies, contracts of employment and recruitment procedures are up to date and that staff are informed and trained accordingly in order to comply with the provisions of the Act.
In addition, it is important to make sure that compromise agreements refer to settling claims under the Act where appropriate.