Late Equality Act guidance could create ‘widespread confusion’

The Government has risked creating “widespread confusion” among employers by issuing guidance on the new Equality Act just over a week before it is implemented, legal experts have warned.

The long awaited Equality Act will come into force on 1 October, rationalising a host of employment regulations and adding new responsibilities on employers – especially in the field of disability discrimination.

However, detailed guidance on how the old laws will be phased out and the new rules brought in was only issued this week, giving employers just 10 days to ensure their policies are legally compliant.

Sandra Wallace, head of equality and diversity at law firm DLA Piper, said: “The objective of the Equality Act was to remove the confusion that has developed around discrimination laws in the UK in recent years.

“Unfortunately, by only issuing guidance on how the new rules will be brought into force a fortnight before they become law, the new Equality Act is now at risk of increasing the burden on employers to ensure they are ready for the changes in a very short space of time.”

Acts of discrimination “rarely fit into neat boxes”, pointed out Wallace. “They are often based on allegations regarding actions that take place over long periods of time – which means the details on how and when laws are going to change are absolutely critical in this situation,” she said.

According to the commencement order issued this week, acts of discrimination that were carried out in their entirety before 1 October 2010 will continue to be dealt with under the old laws, but those that continue after the beginning of next month will be dealt with using the new rules.

Employees who have separate complaints that are covered under both the existing laws and as part of the Equality Act, will have to bring claims under both the old and the new law, which will inevitably lead to more complexity, Wallace warned.

In addition, new guidance on the way that employment tribunals will determine whether or not an employee is disabled has not yet been finalised, meaning that employers must continue to rely on the current out-of-date guidance.

“The Equality Act is an important piece of legislation that should herald a new era in terms of tackling discrimination in the UK and ensuring employers and employees know exactly what is expected of them,” Wallace said.

“Unfortunately, by issuing the implementing legislation so late in the day, and not incorporating all elements of the Act, businesses have been left with a halfway house that will potentially confuse them even more than they already were, and risk protracted legal wrangles in employment tribunals that are already overstretched with a general increase in claims.”

John Read, employment law editor at XpertHR, agreed that “it was not ideal” that the commencement order has come at the last minute, but stressed that the main provisions have been known about for some time.

He added: “Although there are some important changes that employers will need to be aware of from 1 October – most notably regarding pre-employment health-related questions – employers won’t need to change much in their policies and procedures. Provided they are operating a fair working environment and take note of the key changes, they aren’t suddenly going to be discriminating against people on 1 October.”

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