As most will be aware, the Labour government pushed the Equality Bill, now the Equaity Act 2010, through Parliament in the ‘wash up’ just before the election. There is no immediate impact - the earliest raft of changes are scheduled to become law this October. However, given the grand scale and high designs of the Act many businesses and individuals have been left uncertain what the Equality Act might really mean for them.

The purpose of the Act was to harmonise the existing discrimination law and to introduce some new provisions promoting equality. It remains to be seen how much of the Act will remain in place given the coalition government’s respective views on the matter since predictably, as evident from their manifestos, there is a divergence of views between the coalition parties. It is clear from these documents and also from Europe that equality and stamping out discrimination will remain high on the agenda.  New legislation always provokes case law and this can result in a business’s dirty linen being washed in the public domain as Abercrombie & Fitch discovered when sued for disability discrimination last year.  This article sets out the key provisions and changes to enable you understand and prepare for the new provisions. 

Protected characteristics
This stays the same – fears that lookism might be made unlawful (a great area of sensitivity for client sin the fashion industry) have proved unfounded. There are no changes to the grounds on which individuals can bring claims of discrimination (age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation) save a slight broadening of the definition of gender reassignment.

Discrimination by Association and perception
The Act extends the prohibition on discriminating against someone because of their association with another person who has a protected characteristic.  For example a non-disabled carer of a disabled person could bring a discrimination claim if not permitted by their employer to work flexibly to perform their role as carer.  It also extends rights to people who suffer a detriment because they are wrongly perceived to have a protected characteristic. In a recent case a heterosexual man claimed sexual orientation discrimination when he was teased and bullied by colleagues who thought he was gay.  

Disability discrimination
The Act makes significant changes to the provisions on disability discrimination which widen the scope of the protection, creating new prohibited acts of: discrimination arising from disability and indirect disability discrimination.  The current provisions requiring reasonable adjustments for disabled people in certain circumstances and prohibiting direct discrimination on the grounds of disability remain in place. In addition, the Act bans pre-employment health questionnaires and queries i.e.  any question about a job applicant’s health before offering them work.

Combined discrimination
The Act creates a new claim of combined discrimination under which Claimants may bring a claim that they have suffered direct discrimination on grounds of two protected characteristics combined, for example that an individual has been discriminated against on the grounds that she is a black woman.  This certainly gives another string to the Claimant’s bow, and it has been predicted that this will result in a 10% increase in discrimination claims.  In practice it is highly likely that Claimant’s will take the opportunity to plead this in the alternative, running the individual claims for each ground of discrimination and a combined discrimination claim in order to cover all bases.

Third party harassment
The Act extends the liability of employers in for harassment of their employees by third parties e.g. clients, customers, suppliers and consultants. The obligation will not be triggered unless the employer knows that the employee has been harassed by a third party in the course of their employment on at least two previous occasions – not necessarily by the same third party -  and the employer has not taken reasonably practicable steps to prevent the harassment on that occasion, otherwise known as the “three strikes” provision.

Positive action
Much has been made in the press of the potential impact of positive action towards minority or under represented group in a workplace.  In reality it will have little impact.  It is entirely voluntary and there are a number of hurdles to its use which are likely to make the provision unattractive to employers.  Positive action is currently allowed but not in respect of selection for recruitment or promotion.  Under the Act, positive action will only be available where: there is an employee or candidate with a protected characteristic, the employer reasonably thinks people with that protected characteristic are disadvantaged or underrepresented,  that person is “as qualified” as other applicants, the employer does not have a policy of positive action and the more favourable treatment is a proportionate means of achieving the aim of overcoming or reducing the disadvantage.  In other words you can only use it where there are two equally qualified candidates. As it is voluntary, employees and applicants cannot claim against an employer for not using positive action, but unhappy employees or applicants who were not selected because positive action was used will be able to bring claims on the basis that the test for positive action (detailed above) was not met.

Pay secrecy clauses
The Act will make clauses which ban employees from discussing their pay unenforceable in relation to discussions between an employee and a colleague, or former colleague the purpose of which is to ascertain whether there is a connection between pay and a protected characteristic (referred to as relevant pay disclosures). An example would be employees on a shopfloor talking about their salary because one of them thinks she may be paid less because she older/a woman/she is Russian.  Employers who discipline employees for talking about pay may be faced with claims that they have victimised employees (a form of discrimination) which is prohibited under the Act.

Pay reporting
The Act provides for powers to be made to require private sector employers with 250 or more employees to publish information concerning differences in pay between their male and female employees. The Conservatives have been staunchly against such a requirement, preferring to instead only to require employers who are found at Tribunal to have unequal pay practices to disclose the information (which would certainly ‘up the ante’ in such claims), whereas the Liberal Democrats felt that the Act did not go far enough, and would prefer the requirement to be applied to all employers with 100 employees or more.

The Act makes numerous other changes which have not been mentioned due to lack of space.

This article was written by Jo Chatterton who is a Partner and Martha Arnold who is an Associate in the Fox Williams LLP Employment Department