The Equality Act 2010

27/05/2010

By Nick Hobden, Partner and Head of Employment

The Equality Act 2010 (the Act) received Royal Assent on 8 April 2010, just before the general election.  The legal changes that it introduces could come into force as early as October 2010, although some provisions are likely to come in later in 2011. The Conservatives do not embrace all of the provisions and may well get rid of some, depending on what the Lib Dems feel about things.  

The principle aim of the Act is to bring together and harmonise the various different strands of discrimination law. However in addition to harmonising the law, the Act has introduced new concepts and widened the scope of certain provisions. This article highlights just a few of the more important changes that we can expect to see.

Combined or dual discrimination

Combined discrimination is a new concept introduced by the Act. It will allow employees to bring a claim in circumstances where they believe that they have suffered less favourable treatment because of a combination of two (but not more than two) "protected characteristics" (i.e. a combination of two of the following: sex, race, disability, age, sexual orientation, religion or belief, pregnancy and maternity, and marriage or civil partnership status). 

This measure is intended to plug a potential gap in the current legislation, so that employees who have, for example, been discriminated against because they are an Asian homosexual or an older woman are now protected on dual discrimination grounds.  However the decision to limit protection to a combination of only two characteristics leaves open the possibility of some employees still finding themselves unprotected if they have not been discriminated against on dual grounds and have not asserted in their tribunal claim that they have been discriminated on one of the two dual elements. 

Pre-employment health questions

Under the Act, subject to certain exceptions, employers will be prohibited from asking questions regarding the health of job applicants prior to offering them employment. 

The exceptions permit questions concerning:

• health and disability, in order to clarify whether reasonable adjustments for an interview are required; and

• the prospective employee's ability to carry out particular functions intrinsic to the role (e.g. where a health issue might prevent an individual from safely operating machinery).

Employers will also be permitted to ask questions that are intended to enable the employer to monitor diversity.

Going forward, it is going to be even more important for employers to consider very carefully whether any questions relating to a job applicant's health or disability are appropriate.  Central to this is the issue of whether such questions relate fundamentally to an applicant's ability to perform the role for which they are being recruited.

Pay secrecy clauses

Secrecy clauses preventing employees from disclosing information relating to their pay are to be made unlawful, at least to an extent. It is important to note that the protection afforded by the Act only applies where the discussion of pay details takes place with the goal of establishing if there is a connection between pay and a "protected characteristic". By way of example, imagine a situation in which a female employee is disciplined following pay discussions with a male colleague which took place with a view to determining whether there is unequal pay between them. The female employee may have a claim under the Act in such a case.

It is important to note, however, that secrecy clauses are not going to be banned per se; employers are allowed to continue to use such clauses in employment contracts for certain purposes (e.g. to prevent employees disclosing pay details to competitors or the press).  But their enforcement will need to be considered rather more carefully than in the past.

Reporting on pay equality

The Act contains a power for the government to legislate to require employers with 250 employees or more to publish information relating to employees' pay. The legislation, as currently drafted, means that this provision will not be implemented before 2013. 

Before the election, the Conservatives indicated that they would not propose to implement this provision at all. The Liberal Democrats, on the other hand, have indicated that they would potentially broaden the scope of this requirement to apply to all employers with 100 or more employees. What the legislation will look like under the new coalition government is currently anyone's guess.

Positive discrimination

Perhaps one of the most controversial provisions in the Act is the introduction of a new right positively to discriminate in certain limited circumstances. 

When considering recruitment or promotion, an employer may be permitted to favour an applicant or employee with a certain "protected characteristic" (e.g women or people from ethnic minorities) if people with that particular characteristic are under-represented in the workforce and the applicant or employee is as qualified as any other person being considered for the recruitment or promotion. It is as if their race, sex, religion etc could be used as a tie-breaker, all other things being equal.

Once again, the change in government may well affect this provision. The Conservatives don't agree with its implementation. The Lib Dems' position is less clear. Is this catered for in the agreement on a stable coalition government?  Details should become clear in time.

What should you be doing now?

Because of the fact that we have a new Government, there is the prospect that some significant changes could yet be made to the Act. But employers should consider starting the process of:

• reviewing current policies, in order to consider what changes might be necessary to reflect the new legislation

• reviewing job application processes in order to determine whether any current practices in relation to pre-employment health and disability vetting will become unlawful under the new provisions

• reviewing pay secrecy clauses and considering whether they should be revised or deleted

• undertaking staff training, to ensure that key employees understand their obligations

just in case…