The largest piece of discrimination legislation which governs the workplace and beyond came into force on 1 October 2010. The Equality Act 2010 consolidates all previous discrimination legislation, which was considered to be inconsistent and difficult to interpret, into a single piece of legislation using a single set of rules. This article summarises the discrimination prohibitions which continue to apply and the new prohibitions introduced under the Act.
The key changes affecting the workplace under the Act are:
- Protection from direct and indirect discrimination because of a protected characteristic
- Extension of third party harassment to include all protected characteristics
- Introduction of combined discrimination (from April 2011)
- Prohibition of discrimination based on association or perception
- Introduction of positive action (from April 2011)
- Introduction of occupational requirements as a defence
- Ban on secrecy pay clauses
- Restrictions on health questionnaires
- Gender pay gap audits for employers
The new wider definition of discrimination means that all employees and certain other individuals are protected against discrimination “because of” a protected characteristic, which cover age, disability, sex, gender reassignment, sexual orientation, race, religion or belief and, in some cases, marriage, civil partnerships, pregnancy and maternity.
The types of discrimination and unlawful conduct set out under the Act are:
- Direct discrimination
- Combined discrimination
- Indirect discrimination
- Instructing, causing, inducing and aiding discrimination
(a) Direct Discrimination
As under the previous discrimination legislation, an employee claiming direct discrimination must show that they have been treated less favourably than a real or hypothetical comparator because of a protected characteristic. There is no requirement to have a real or hypothetical comparator for direct pregnancy or maternity discrimination claims.
Unlike indirect discrimination and with the exception of age discrimination, direct discrimination cannot be objectively justified but there may be other defences available to employers such as occupational requirements (discussed further below).
(b) Indirect Discrimination
Indirect discrimination deals with acts, decisions and policies which are not intended to be discriminatory, but which in practice have the effect of disadvantaging a particular group of people that share a protected characteristic.
Indirect discrimination applies where an employer applies a provision, criterion or practice (PCP), which puts or would put a person with a protected characteristic (except in the case of pregnancy or maternity) at a particular disadvantage compared to others who do not have that protected characteristic and the employer cannot show that that the PCP is objectively justified in that it is a proportionate means of achieving a legitimate aim. For example, an employer requiring all its employees to work full time may indirectly discriminate against female employees who have childcare responsibilities by having such a policy in place unless the employer can objectively justify the need for full time employees. The PCP must put the claimant at a disadvantage. In the example given it would not be enough for a female employee to raise a claim if she does not have child care responsibilities. The burden will be on the employer to demonstrate that the PCP is a proportionate means of achieving a legitimate aim.
(c) Combined Discrimination
Combined (or dual) discrimination is a new cause of action introduced by the Act, which allows direct discrimination claims to be brought in relation to a combination of two of the protected characteristics (except in the case of marriage, civil partnership, pregnancy and maternity). For example, a person who is discriminated against because of being an Asian woman, rather than because of their race or sex alone, will be able to claim for the dual characteristics.
The Act also protects employees from harassment related to a protected characteristic (except in the case of marriage, civil partnership, pregnancy and maternity). The harassment must have the effect or purpose of violating another person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. A one off incident can amount to harassment.
There is a specific definition of sexual harassment involving unwanted conduct.
Employees are also now protected from harassment from third parties such as clients, customers and suppliers. This protection will only apply if the employer knows that the employee has been harassed by a third party in the course of their employment on at least two occasions (whether or not that third party was the same person on each occasion) and the employer has failed to take reasonably practicable steps to prevent the harassment on those occasions.
Like the previous legislation, employees or potential employees who do (or might do) a protected act are protected from victimisation.
A protected act includes:
- Bringing proceedings under the Act (or previous discrimination legislation)
- Giving evidence or information in connection with proceedings brought under the Act (or previous discrimination legislation)
- Doing any other thing for the purposes of or in connection with the Act (or previous discrimination legislation)
- Alleging that the employer or another person has contravened the Act (or previous discrimination legislation)
(f) Instructing, causing, inducing and aiding discrimination
The Act makes it unlawful for someone to instruct, cause, induce or aid someone to discriminate, harass or victimise another person, or attempt to do so.
Association or perception
It is now prohibited to discriminate against someone because of their association with another person who has a protected characteristic (except in the case of marriage or civil partnership). For example, a non-disabled employee who cares for a disabled relative could bring a discrimination claim if their employer refuses to grant them flexible working.
The Act goes further to protect those who are merely perceived to have a protected characteristic (except in the case of marriage or civil partnership). For example, if an employee is harassed by other staff members because he is wrongly perceived to be gay, he may bring a claim.
From April 2011, employers will be entitled to take positive action by taking into consideration any under-represented groups in its workforce. It will allow employers who reasonably think that persons with a particular protected characteristic are disadvantaged or disproportionately represented to treat a person more favourably than others for recruitment or promotion provided that the person treated more favourably is “as qualified” as those others.
This principle of positive action will only be permitted so long as the employer does not have a general policy of choosing persons from under-represented groups and the employer believes that there is an under-representation or disadvantage suffered.
As positive action is a voluntary entitlement of the employer, a candidate or employee cannot bring a claim for discrimination by the mere fact that another person was chosen because of that person being from an under-represented group. However, unhappy candidates or employees could bring a claim if they were able to show that the requirements for positive recruitment or promotion had not been met.
An occupational requirement defence replaces the genuine occupational requirement defence under previous legislation and will apply to all protected characteristics. To rely on such a defence the employer must show that the occupational requirement was crucial to the role and that applying the occupational requirement was a “proportionate means of achieving a legitimate aim”.
Other statutory defences are also available to employers.
Confidentiality Clauses on Pay
Secrecy clauses on pay are now unenforceable. Employers are now prohibited from imposing contractual restraints on employees from discussing their pay with others to determine whether any unequal pay exists relating to a protected characteristic. Clauses which prevent the disclosure of pay for other purposes, such as disclosure to competitors, are permitted.
Employers are restricted from questioning candidates about their health to the extent that such matters are unrelated to the job. A job applicant will not therefore be required disclose their health condition unless it affects their ability to do the job.
Pay Gap Audits
The Act makes provision for the government to require all employers with more than 250 staff to report their gender pay gap from 2013, if voluntarily reporting has not been effective.
From April 2011, public sector employers with more than 150 employees will also be required to report on gender pay as well as other equality data such as the number of black, Asian and minority ethnic workers.
Who is protected?
The Act protects a wide range of individuals including employees, workers, job applicants, self-employed persons (provided their contract obliges them to perform the work personally) and others such as the police, partners, barristers, advocates, members of local authorities and persons seeking vocational training or using employment agencies.
The scope of the Act also extends beyond the workplace to cover the provision of goods and services and protect consumers.
Who is liable?
Employers and other bodies, such as training providers, can be primarily liable for discrimination against a person with a protected characteristic. Claims may also be brought against fellow employees, agents or third parties. It is worth noting that employers can also be held liable for the acts of an employee, agent or third party.
Under the Act anything done by an employee in the course of their employment is considered to have also been done by the employer, regardless of whether the unlawful act was carried out with the employer’s knowledge. The employer will have a defence if it can show that it took all reasonable steps to prevent the employee from doing the unlawful act. Previous case law has indicated that such reasonable steps would include:
- Implementing an equal opportunities policy and anti-harassment and bullying policy
- Making employees aware of the policies and their implications
- Training managers and supervisor on discriminatory issues
- Taking appropriate steps to deal with complaints
Employers should review their equality policies and update them to reflect the changes in the Act. In particular, employers should ensure that their policies cover all the protected characteristics and that relevant training is provided to their staff. Service providers should also review their policy. The recent successful discrimination claim by a gay couple who were refused a double room at a B&B owned by a Christian couple demonstrates the extent to which the Act affords protection from discrimination by service providers.