Equality Act: positive action and changes to discrimination law

The Equality Act aims to let employers use positive action to boost workforce diversity. Daniel Thomas examines that and other provisions in the new legislation.

The coalition government placed equality at the heart of its employment policy pledges, committing to a range of measures to end discrimination in the workplace, including extending the right to request flexible working to all employees and promoting gender equality on the boards of listed companies.

The first test of this commitment will come in October, when the Equality Act comes into force. The legislation will enable employers to favour under-represented groups during the recruitment process – provided the candidates are of equal suitability – to increase the diversity of their workforces.

But it is unclear at this stage whether the coalition will enforce the positive action strand of the Act. Speaking before the election, Mark Harper, shadow disability minister at the time, said a Conservative government would not bring in the positive action provision. But the Home Office says it is too early to confirm whether this will be the case, while the Equality and Human Rights Commission is also in the dark.

Positive action

If positive action is not enforced, existing positive action schemes – such as the initiative at Bristol City Council which hit the headlines in May – would become illegal, because the Equality Act repeals all existing discrimination legislation.

HR directors are split on the benefits of positive action, and Rachel Dineley, partner and head of diversity at law firm Beachcroft, suggests that “very few” employers would want to use the provision because of the inherent complexity. “Candidates want to be awarded a job on their merits and not because they belong to a disadvantaged group,” she says.

“If a robust and objective selection procedure is already in existence, the chances are the best candidate will emerge in the normal way. If such a procedure does not exist, then it should be put in place in any event, to avoid discrimination claims.”

Protected characteristics

The Equality Act will, for the first time, allow employees to claim that less favourable treatment arose from a combination of two protected characteristics – for example, an older woman.

The combination can be any two of the protected characteristics set out in the Act, with the exception of marriage and civil partnership, or pregnancy/maternity. Less favourable treatment because of two different disabilities experienced by the same person will not be combined discrimination because disability is treated as a single characteristic.

The right to make combined claims of discrimination is likely to make it harder for employers to defend claims and consequently more costly, warns Jo Broadbent, employment lawyer at law firm Lovells. “It is anticipated that employees claiming more than one strand of discrimination will also submit dual discrimination claims to strengthen their position.

“Tribunal hearings are likely to take longer as employers will need to bring more evidence to rebut the allegations,” she says.

Other provisions to watch in the Equality Act

Caste discrimination

At present, there are no plans to use the power in the Act to bring in a prohibition on caste discrimination, although the previous government commissioned the National Institute of Economic and Social Research to investigate the extent to which caste discrimination is a problem. Its report is due in August, and if there is evidence of a need to legislate further, secondary legislation may follow.

Third-party harassment

The extension of the definition of third-party harassment will mean that employers will need to revisit their harassment/bullying policies and also consider carefully how they approach relationships with customers and clients, to minimise the risk of being found liable to their employees for harassment by third parties. To date, there have not been many claims brought in relation to sexual harassment by third parties, but this could change as a result of the Act.

To minimise the risk of claims, employers will need to ensure decisions made about employees – for example, on recruitment or promotion – are based on merit alone, and that the employee’s characteristics in no way affected the decision, Broadbent adds.

As ever, line manager education will be vital – and it will be more time consuming than the government suggests, according to Marian Bloodworth, also an employment lawyer at Lovells. “The government estimated in its impact assessment that it would take businesses only two hours to familiarise themselves with the new provision – but as all HR advisers and employment lawyers will know from experience, it is likely to take considerably longer than that,” she says.

Gender reassignment

The Act also contains some significant changes to the law governing discrimination based on the protected characteristic of gender reassignment. Not only is protection introduced against indirect discrimination, but there is also a wider definition applied to gender reassignment. A person will be regarded as having the protected characteristic if they propose to undergo, are undergoing, or have actually undergone the process of reassigning their sex. This means an employee is covered from the point of proposing the change onwards, and can stop at any time without losing protection.

The main change to the definition is that a person will no longer be required to be under medical supervision to fall within the definition. To reassign their gender, the employee may simply decide to live and dress as someone of the opposite sex.

Philip Hodges, senior associate in the employment team at law firm Halliwells, advises employers to ensure gender reassignment is covered in diversity policy, and to review any procedures that may have an adverse impact on an employee for a reason connected with gender reassignment. “If there is a risk of an indirect discrimination claim, the policy should be assessed to see if it is justified in the circumstances,” he says.

“In particular, any dress and appearance requirements should be carefully considered.”

“The legislation will enable employers to favour under-represented groups during the recruitment process”

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