The new Equality Act explained.
The main changes to be introduced from an employment law perspective are as follows.
Defining discrimination
The Act will:
- Harmonise the definition of direct discrimination to cover “associative” and “perceptive” cases, replacing the phrase “on grounds of” with “because of”.
- Harmonise the definition of indirect discrimination across all protected characteristics.
- Harmonise the concept of justification in discrimination cases, as a “proportionate means of achieving a legitimate aim”.
- Remove the requirement for a comparator in victimisation cases.
- Harmonise the definition of harassment to cover “associative” and “perceptive” cases and to make employers explicitly liable, in some circumstances, for harassment by third parties in the workplace.
- Make specific provision for claims of combined discrimination, based on a combination of no more than two protected characteristics.
Discriminating lawfully
The Act will:
- Introduce an “occupational requirement” (OR) defence (formerly known as “genuine occupational requirement” (GOR)) across all protected characteristics, and remove the job-specific “genuine occupational qualifications” (GOQs) in sex, gender reassignment and race cases.
- Extend the concept of positive action to allow employers to recruit or promote someone from an under-represented group, but only where they have a choice between two or more equally-suitable candidates.
Disability
The Act will:
- Recast the concept of disability-related discrimination to sidestep the effects of the House of Lords’ decision in London Borough of Lewisham v Malcolm [2008] IRLR 700, and introduce indirect disability discrimination.
- Outlaw employers’ pre-employment health enquiries unless they are made for prescribed reasons.
Equal pay and contract terms
The Act will:
- Introduce explicit provisions on indirect discrimination in equal pay cases.
- Provide for the possibility of direct sex discrimination claims in respect of pay based on hypothetical comparators.
- Limit the enforceability of contractual “pay secrecy” clauses.
- Introduce a power to require large employers to report on their gender pay gap.
Race
The Act will:
- Introduce a power for the government to provide specifically that the definition of “race” includes “caste”.
Gender reassignment
The Act will:
- Remove the requirement that individuals be under medical supervision to be protected by the gender reassignment provisions, and extend protection from indirect discrimination to transsexuals.
Enforcement
The Act will:
- Strengthen enforcement by enabling tribunals to make recommendations that benefit the wider workforce, not just the claimant.
Public sector duties
The Act will:
- Place a new duty on certain public authorities to consider “socio-economic disadvantage” when taking strategic decisions about how to exercise their functions.
- Replace the public sector race, gender and disability equality duties with a unified duty covering all strands, based on the current “due regard” principle.
- Create a power for the government to issue secondary legislation to require public bodies to report significant inequalities in gender pay, ethnic minority employment and disability employment.
NEXT STEPS
Before the 2010 general election, the Labour government announced its intention to bring most of the main provisions of the Equality Act into force in October 2010, with the combined discrimination provision and some specific public sector duties to follow in April 2011. It also said that the private sector gender pay reporting provision would take effect in 2013 if the government of the day decided to implement it.
The new coalition government did not specifically mention the Act in The Coalition: our programme for government. However, the Government Equalities Office has announced that the majority of the Act will take effect on 1 October 2010, as originally planned.
With all these changes companies should keep themselves up to date and ensure that all staff receive training about the bill.
Throughout October and November 2010, Coodes will be hosting a series of Employment Law Update Workshops in various locations to talk about the Equality Bill.
If you would like to reserve a space, contact: suzanne.skerry@coodes.co.uk
To speak to Emma Bramley, send an email to: emma.bramley@coodes.co.uk
This entry was posted on Friday, September 3rd, 2010 at 10:52 am and is filed under Events, News, Press and Media.
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