I’ve read a bit about the Equality Act 2010, and I’m worried that my relevant policies and procedures will be out of date. What are the key elements I need to take account of when updating them?
The Equality Act 2010 provides a new legislative framework consolidating, updating and replacing all previous discrimination legislation. Although many provisions remain the same, there are a number of important changes that should be reflected in your relevant policies and procedures.
Under the Act, it is unlawful to discriminate directly or indirectly both in recruitment and employment (which includes the provision of goods and services) because of what are now defined as “protected characteristics”. Although the Act covers the same groups protected by previous discrimination legislation (eg age, disability and sex), it extends some of the protections to characteristics not previously covered, and these should be reflected in your policies.
The Act extends the concepts of “associative discrimination” (discrimination against someone because they are associated with another person who possesses a protected characteristic) and “perceptive discrimination” (where an individual is directly discriminated against because others mistakenly think he or she possesses a particular characteristic).
It is also important that you note changes in relation to victimisation and harassment under the Act. In terms of victimisation, there is no longer a requirement for a complainant to compare his or her treatment with that of a person who has not made or supported a complaint under the Act. Harassment applies to most protected characteristics, and employees will now be able to complain of behaviour that they find offensive even if it is not directed at them, and the complainant need not possess the relevant characteristic themselves. The Act also extends employers’ liability for harassment of their employees by third parties who are not employees, such as customers or clients.
Disability discrimination has undergone some significant changes. As well as the duty to make reasonable adjustments, indirect discrimination now applies to disability, and there is new protection against discrimination “arising from disability”, which replaces disability-related discrimination under the old legislation. Finally, except in limited circumstances, it is now unlawful for employers to ask about a candidate’s health before offering them work.
You should update your equal opportunities and bullying and harassment policies in light of these changes, but also train staff and ensure that the changes are reflected within your organisation’s working environment.
The Government is considering when to implement the provisions of the Act that did not come into force on 1 October 2010, which will no doubt bring concerns and difficulties of their own.
Jawaid Rehman, associate, Weightmans LLP