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Equality Act 2010 - Finally in Force

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As we have reported in previous articles, the main employment provisions of the Equality Act 2010 came into force on 1 October.

ScalesThe Act is concerned with discrimination and harassment in respect of a number of areas which are known as “protected characteristics” and these are as follows:

  • Age
  • Disability
  • Gender re-assignment (which now includes Pre and Post Operative transsexuals)
  • Marriage and civil partnership
  • Pregnancy and maternity
  • Race
  • Religion or belief
  • Sex
  • Sexual orientation

The Act is designed to bring all the various strands of discrimination under one piece of legislation and is largely a consolidating statute. However, it does also introduce some new concepts and employers need to be aware of these. We have previously reported on the prohibition on pre-employment health questionnaires but in addition, employers may now face liability for discrimination by third parties.

For example, this may include customers who harass an employee in the course of his/her employment and the employer fails to take such steps as would have been reasonably expected to prevent this from taking place. The employer will be liable if it knew that the employee had been harassed on at least two previous occasions by a third party (even if this was a different third party on each occasion).

Thus, suppose a hotel or similar in which the manager/employer is aware that a female employee working in the bar is sexually harassed on two separate occasions by different customers she is serving. The employer will be liable for a third act of such harassment by the same or a different customer if it fails to take steps to prevent this from taking place.

The remedy and potential liability will in most cases be compensation which is of course unlimited and in addition, the employer could face a claim of unfair dismissal if the employee left in response to the treatment or complained and was then dismissed or moved elsewhere or demoted.

The new law also introduces the concept of discrimination by association. Thus an employee who suffers abuse because her son or daughter is gay may bring a claim for harassment on grounds of sexual orientation.
Likewise, an employee who is offended when he or she overhears another employee who is the subject of comments or behaviour which may itself amount to harassment, may also bring a claim.

Employers therefore need to be aware that there are a growing number of permutations in which they could unwittingly be embroiled in disputes for which they may be found liable and ordered to pay substantial compensation in the employment tribunal. 

For further information please contact Paul Grindley, a Partner in our Employment team.

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