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UK business owners and managers who employ staff will need to be aware of the requirements of the new Equality Act the bulk of which come into force today (see below for a list). Failure to adhere to its requirements, some of them fairly onerous and complex, could see them end up in court facing hefty fines. Just asking the wrong question at a job interview could be enough to trigger legal action against a business.

The Act was designed to bring together all the existing anti-discrimination legislation and to extend it to other areas of employer-employee relationships. It identifies a number of “protected characteristics” previously protected under separate equality legislation – age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership and pregnancy and maternity – but extends some protections to characteristics that were not previously covered, and also strengthens particular aspects of equality law.  
 
The Act is a mixture of rights and responsibilities that have:

  • Stayed the same – for example, direct discrimination still occurs when “someone is treated less favourably than another person because of a protected characteristic”; 
  • Changed – for example, employees will now be able to complain of discrimination even if it is not directed at them, if they can demonstrate that it creates an offensive environment for them;
  • Been extended – for example, associative discrimination (direct discrimination against someone because they associate with another person who possesses a protected characteristic) will cover age, disability, gender reassignment and sex as well as race, religion and belief and sexual orientation;
  • Been introduced for the first time – for example, the concept of discrimination arising from disability, which occurs if a disabled person is treated unfavourably because of something arising in consequence of their disability.

The most significant change is the new ban on questions about a prospective employee’s health at first interview. Under the new Act health-related questions can only be asked to help the employer:

  • decide whether any reasonable adjustments have to be made for the interviewee to the selection process;  
  • decide whether an interviewee can carry out a function that is essential (“intrinsic”) to the job;  
  • monitor diversity among people making applications for jobs;  
  • take positive action to assist disabled people;  
  • be assured that an interviewee has the disability where the job genuinely requires the jobholder to have a disability. 

Employers will be breaking the law unless they can prove their questions are designed to monitor diversity or to check whether the interviewee can carry out an essential task.

Employment experts have warned that the new legislation will lead to a surge in employment tribunal claims, so employers may need to review and change some of their policies and practices.
Following representations by business organisations, trade unions and others, the coalition government have announced that they are reviewing some of the requirements of the Act which will now either be introduced later or not at all. Details are shown below.

Equality Act Provisions Coming Into Effect on 1st October 2010

  • The basic framework of protection against direct and indirect discrimination, harassment and victimisation in services and public functions; premises; work; education; associations, and transport. 
  • Changing the definition of gender reassignment, by removing the requirement for medical supervision. 
  • Levelling up protection for people discriminated against because they are perceived to have, or are associated with someone who has, a protected characteristic, so providing new protection for people like carers. 
  • Clearer protection for breastfeeding mothers.
  • Applying the European definition of indirect discrimination to all protected characteristics. 
  • Extending protection from indirect discrimination to disability. 
  • Introducing a new concept of “discrimination arising from disability”, to replace protection under previous legislation lost as a result of a legal judgment. 
  • Applying the detriment model to victimisation protection (aligning with the approach in employment law). 
  • Harmonising the thresholds for the duty to make reasonable adjustments for disabled people. 
  • Extending protection from 3rd party harassment to all protected characteristics. 
  • Making it more difficult for disabled people to be unfairly screened out when applying for jobs, by restricting the circumstances in which employers can ask job applicants questions about disability or health. 
  • Allowing claims for direct gender pay discrimination where there is no actual comparator. 
  • Making pay secrecy clauses unenforceable. 
  • Extending protection in private clubs to sex, religion or belief, pregnancy and maternity, and gender reassignment. 
  • Introducing new powers for employment tribunals to make recommendations which benefit the wider workforce. 
  • Harmonising provisions allowing voluntary positive action.

Equality Act Provisions Coming Into Effect in April 2011

  • Positive action in recruitment and promotion. 
  • Public sector Equality Duty

Equality Act Provisions Still Under Consideration

  • Duty to make reasonable adjustments to common parts of leasehold and commonhold premises and common parts in Scotland. 
  • Provisions relating to auxiliary aids in schools. 
  • Diversity reporting by political parties. 
  • Provisions about taxi accessibility. 
  • Prohibition on age discrimination in services and public functions. 
  • Family property. 
  • Civil partnerships on religious premises.

Equality Act Provisions Which Will Not Now Be Enacted

  • Socio-economic Duty on public bodies. 
  • Gender pay gap reporting. 
  • Dual discrimination.

This is a complex piece of legislation and employers or prospective employers need to read as much of the available guidance as they can (see below) and then take appropriate advice from professional advisors.

Further Information

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2 Responses to “The UK Equality Act 2010 Comes Into Force”

  1. 8mediaeg says:

    thanks for this post and your time in writing

  2. Tom Harding says:

    This is a truely horrible piece of legislation. Thanks for bringing it to our attention.

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