The Equality Act 2010 seeks to harmonise, streamline and improve all the existing equality legislation and has implications across a variety of practice areas such as goods and services, education and property law. Here we focus on some key implications for employment law and look at how the Government may affect the Act’s future hereafter.
Changes from October 2010
Amongst other things from 1st October The Equality Act:
- Prescribes a set list of 9 “protected characteristics” of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
- With some exceptions, harmonises across these protected characteristics the types of prohibited discrimination of direct discrimination, indirect discrimination, harassment, and victimisation.
- Prohibits certain acts of discrimination that disadvantage those who associate with an individual who has a protected characteristic or which disadvantage an individual who is perceived to have a protected characteristic.
- Prohibits an employer asking questions about an applicant’s health before a job offer is made, or before the individual is placed within a pool of applicants to be offered work. Exemptions still permit health questions in specified circumstances such as questions to establish whether reasonable adjustments are required in the recruitment process, or to establish if the applicant can carry out a function intrinsic to the work concerned, or questions for the purposes of diversity monitoring.
- In the disability discrimination field, the protection afforded to disabled employees is improved by the introduction of a new concept of “discrimination arising from disability” to plug the gap in protection which resulted from the 2008 House of Lords decision in Malcolm.
- In the disability field confirms that an employee cannot be made to pay or contribute to the cost incurred in making a reasonable adjustment to their workplace premises or arrangements.
- In an attempt to address the gender pay gap, gagging clauses in contracts of employment or similar documents which seek to prevent employees from disclosing pay information will become unenforceable against those employees where they engage in a qualifying discussion about their pay.
- Remove the requirement that individuals must be under medical supervision to be protected by the gender reassignment provisions.
- Strengthen enforcement by allowing employment tribunals to make recommendations to benefit the wider workforce and not just the particular claimant in question.
Still to Come?
There are some provisions within The Equality Act which the coalition Government says it will not bring into effect in October 2010 as it is still considering how to implement them. These include:
- A positive action initiative which would allow employers to recruit or promote someone from an under-represented group as a “tie break” where they have a choice between two equally qualified candidates.
- A prohibition of less favourable treatment that occurs because of a combination of two relevant protected characteristics (for example the less favourable treatment of Asian women).
- The power to compel private sector employers of over 250 employees to publish gender pay gap information. Prior to the election the Conservatives had proposed that employers would only be subject to a mandatory pay audit if they had already lost an equal pay claim.
- A socio-economic duty, that would require certain public authorities to consider “socio-economic disadvantage” when taking strategic decisions about how to exercise their functions.
Government Continuing to Consult on:
- Public sector equality duties which would replace the existing public sector race, gender and disability equality duties with a unified duty across all strands.
- The default retirement age. The current proposals are to abolish the default retirement age and statutory retirement procedures in October 2011 with transitional arrangements in place from April 2011.
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