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Equality Act 2010 - The Future of Fairness?

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One of the most significant developments in employment law this year will be the Equality Act part of which will come into force in October.

BalancesThis piece of legislation is intended to bring together and harmonise discrimination law across the various heads which currently apply. These are known as “protected characteristics” and are the grounds on which discrimination in the workplace is unlawful. These characteristics, listed alphabetically are as follows:

  • Age
  • Disability
  • Gender re-assignment
  • Marriage and civil partnership
  • Pregnancy and maternity
  • Race
  • Religion or belief (this can include a philosophical belief such as a strongly held view on climate change)
  • Sex
  • Sexual orientation.

Incidentally, the government rejected calls for Welsh speaking to be added to the list!

The well established principle that employers will be liable for acts of discrimination carried out by employees during the course of their employment will remain but there are some significant additions and these will include the following:

“Associative” discrimination

This means that the protected characteristic does not have to be in relation to the person bringing the claim. For example, an employee could claim discrimination if he or she is treated less favourably because they care for a disabled person. This change recognises an earlier decision of the courts when a secretary working for a firm of solicitors (no less) claimed disability discrimination because she alleged that she suffered criticism for having time off to care for her disabled son.

This principle can be extended to other characteristics so that for example, an employee could claim age discrimination if they are treated less favourably because they care for an elderly relative.

Likewise, if a person suffers harassment at work because his son happens to be gay or his wife has particular religious beliefs, a claim can be brought by that employee.

Liability for discrimination by third parties

This will include repeated harassment by a third party such as a customer or supplier. Therefore, an employer could be liable if one of its employees is constantly harassed by a customer and the employer chooses to take no action.

As far as disability discrimination is concerned, there will be a restriction on employers asking about a job applicant’s health (including any disability) before offering work. The rationale behind this development is that pre-employment enquiries about health issues are thought to be one of the main reasons why disabled job applicants often fail to reach the interview stage.

Whilst the new law sets out permitted reasons for asking such questions, it is unclear how such questions should be worded in order not to infringe the new rules. For example, if an applicant applies for a job in a warehouse which requires manual lifting which is a function intrinsic to the job, the employer is permitted to ask the applicant questions about his health to establish whether he is able to do the job (but with reasonable adjustments for a disabled applicant if required). The employer would not be permitted to ask the applicant other health questions until the candidate had been offered a job.

This new development is likely to lead to disputes and the answers may only be provided by guidance from the employment tribunal. It is thought that questions about current health are surely more likely to be acceptable than questions about past health. Therefore, questions starting with “Have you ever suffered from.....” would probably be unlawful as they are not focussed upon the applicant’s current capabilities.

Under the new law, the employment tribunal will be able to make recommendations to benefit the wider work force. At present, recommendations are limited to those which affect the individual claimant in the case and have no application in situations where the claimant may have already left that employer. This new provision is intended to address the fact that around 70% of employees involved in discrimination cases end up leaving their job.

For now, it is a question of watch this space but we will bring you further news of developments as and when they occur once the new consolidated laws start to have a practical impact as far as claims are concerned. In the meantime, it is an opportune time for all employers to review their existing policies and procedures as far as equal opportunities are concerned. We can of course do this on your behalf and if you would like any further information, please contact one of the team.

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