Equality Act 2010
On April 8th 2010 the Equality Bill was accepted without amendment by the House of Commons, clearing its way to the statute book this week. The Equality Act 2010 aims to harmonise existing discrimination law and in some respects extend it. It will give organisations in both public and private sectors much to contend with.
The majority of the provisions in the Equality Act will come into force in October and replace existing discrimination legislation. However, some provisions will come into force at a later date (see timeline below for further details) to allow organisations the necessary time to prepare.
This alert gives an overview of some key issues. Over the coming months we will be publishing a series of email bulletins addressing different aspects of the Act. These will be the key areas of focus for employers and will set out action points, taking into account the guidance and codes of practice, which are currently the subject of consultation. In the meantime, if the implications of any particular aspect of the Act are of concern to you, please do contact us.
Key issues: Key elements of the Bill of relevance to the health and public sector are:
* Harmonisation and extension of discrimination law: The prohibition in directly or indirectly discriminating "because of a protected characteristic" will cover age, disability, sex, gender reassignment, sexual orientation, race, religion or belief and, in many but not all instances, marriage and civil partnerships. "Disability related" discrimination will be replaced with a prohibition on discriminating against a disabled person by treating them unfavourably where that treatment is not a proportionate means of achieving a legitimate aim.
* Pre-employment health questionnaires: This new provision prohibits employers asking job applicants questions about their health and whether they have a disability, other than in specified circumstances (including whether the applicant will be able to carry out a function that is intrinsic to the work concerned). Employers will still be entitled to screen applicants about health after making a job offer (or after including the applicant in a pool of short-listed applicants). Some employers may need to amend documentation or procedures in their recruitment process in order to comply with the new requirements.
* Discrimination by association: The ban on discrimination by association will be extended to all protected characteristics and so will reflect the law developed in recent appeal cases. This should protect spouses, partners, parents and carers who look after a disabled person or older relative from discrimination. They will be protected by virtue of their very close link to that person.
* Discrimination based on perception: The ban on discrimination based on perception is similarly extended. This will protect employees who experience discrimination because they are wrongly thought to have a protected characteristic. So, for example, a male job applicant who is rejected because he has a name which is commonly used as a woman's name, would be able to claim for sex discrimination.
* Dual discrimination (from April 2011): A clause outlawing discrimination on the basis of two (and no more) protected characteristics was recently inserted in the Act. So, for example, someone who claims they have been specifically discriminated against because they are an Asian woman, rather than just because of their race or gender, will be able to claim for this combination of characteristics.
* Recommendations by tribunals: The Act aims to widen tribunals' powers to make recommendations in cases where unlawful discrimination has been proved. At present, a tribunal can recommend that an employer takes steps that will reduce the effect of discrimination on the claimant. The Act extends this to enable wide-ranging recommendations to be made applying across the workplace, such as re-training staff, publishing its selection criteria used for staff transfer or promotion, setting up a review panel to deal with equal opportunities, harassment and grievances. While not binding, failure to comply could be damaging to the employer's reputation and be used in evidence against the employer in future discrimination claims.
* Positive action in recruitment and promotion: This means that employers can pick someone for a job from an under-represented group when they have the choice between two or more candidates who are "as qualified" as each other (but must not have a policy of doing that in every case). A Conservative government may not bring this into force.
* Pay discussions with colleagues: Employees will be free to discuss pay, (including seeking or giving information) with current and former colleagues, and discuss whether there is a connection between pay and having (or not having) a particular protected characteristic. Action taken against them for being involved in such a pay discussion will be unlawful victimisation.
* Socio - economic duty (from April 2011): There will be a new duty on public bodies, to consider what action they can take to reduce the socio-economic inequalities service users face. This will affect how they make strategic decisions about spending and service delivery in local communities. The Conservatives have indicated they would not implement this, if they form the next government.
* Single equality duty (from April 2011): The Act creates a new single public sector equality duty which will continue to cover race, gender and disability but will be extended to cover age, sexual orientation, religion or belief, pregnancy and maternity and gender reassignment. Public bodies will be required to consider needs, by reference to these characteristics, when designing and delivering public services.
* Extension of the ban on age discrimination (from 2012): The ban on age discrimination is going to be extended to the provision of services and public functions. Exceptions will be made and some treatment will be objectively justified. We are expecting that regulations will be published possibly in the autumn dealing with the exemptions.
* Procurement (from 2011): The intention is for public bodies to use public procurement to drive equality. Regulations will set out how public bodies should go about doing this.
* Equal pay transparency: Public bodies with 150 or more employees may have to publish gender pay gap information from April 2011.
* Caste discrimination: A provision was recently added to the Act giving the government power to introduce regulations to outlaw "caste" discrimination. The Bill includes a power to ban discrimination and harassment because of caste, if the available evidence shows this is
appropriate.
Timeline
It is planned that the Act will come into force as follows:
October 2010: Main provisions, in prohibiting discrimination in the workplace and in the provision of goods, liabilities and services, will replace existing discrimination legislation.
April 2011: The integrated public sector Equality Duty, the Socio-economic Duty and dual discrimination protection.
2012: The ban on age discrimination in provision of goods, facilities, services and public functions.
2013: Private and voluntary sector gender pay transparency regulations (if required).
It is also worth noting that some of the provisions will be subject to implementation only through subsequent regulations so these may well be changed or even discarded by the government of the day.