Equality Act 2010: preparing for the challenge

After an extensive period of consultation, the Equality Bill has limped its way, in fits and starts, onto the statute book. Given that this occurred in the week the general election was called, it is not surprising that it has received little fanfare.

Our current discrimination legislation, which governs so much in the workplace and beyond, has often been inconsistent and difficult to interpret. A single set of rules, and some simplified language, will be welcome. But there is much in the new Equality Act that may also cause concern.

While many principles will remain the same, the scope of discrimination law will be widened and reinterpreted in a number of key respects.

We all know that the devil is in the detail, and employers will fall foul of the law where the detail eludes them. Many will have their work cut out, putting appropriate measures in place to reduce the risk of claims against them.

The Equality Act Impact Assessment estimates that, with people familiarising themselves with the new law and the one-off costs of implementing it, the Act will cost between £240.9m and £282.6m in the first year.

Transparency on some issues is regarded as key, with the rationale being that it will make it possible to monitor and encourage progress.

For example, despite any contractual constraints to keep pay confidential, employers will be barred from disciplining employees who discuss their pay, where employees perceive that pay may be linked to some form of discrimination.

Although employers will not be required to undertake pay audits, private sector employers may be required (at least by a new Labour government) to disclose the percentage difference, and this would inevitably increase the administrative burden on already stretched resources.

In addition, we expect public sector employers with more than 150 employees may be required to publish data on ethnic minority and disabled groups.

Not everything will come into force at once. Among the key provisions affecting the workplace are the following:

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.

Discrimination by association or based on perception: The ban on discrimination by association will be extended to protect spouses, partners, parents and carers who look after a disabled person or older relative from discrimination.

Equal pay: The Act incorporates provisions to cover existing equal pay and sex discrimination law, with the aim of reflecting key decisions in equal pay case law and avoiding any gap or overlap between provisions.

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 enable wide-ranging recommendations to be made applying across the workplace, such as re-training staff.

Positive action in recruitment and promotion: If this provision is brought in (and the Conservatives may not do so, if they come into power), it would enable employers to 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.

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