Updated for 2018
The Equality Act 2010 represents a major change in the way that employers deal with their workforce. It imposes a number of new requirements on employers, and it is important that you are familiar with these.
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What is the Equality Act 2010?
The Equality Act 2010 is a wide-ranging law that brings together nine individual pieces of legislation. The purpose of the Act is to make it more difficult for employers and other organisations to discriminate on a number of different grounds.
The provisions of the Act began coming into force in October 2010, with the remainder introduced the following year.
What has changed?
The Act makes provisions for nine ‘protected characteristics’: pregnancy and maternity; marriage and civil partnership; sexual orientation; sex; religion or belief; race; gender reassignment; disability; and age.
The Act also sets out seven types of discrimination: direct discrimination; discrimination by association; discrimination by perception; indirect discrimination; harassment; harassment by a third party; and victimisation.
The Equality Act 2010 makes a number of changes that may affect the way employers deal with individuals with those protected characteristics.
What are the changes to protected characteristics?
The Equality Act made changes to two of the so-called protected characteristics: disability, and gender reassignment.
Disability received a new definition under the Act. A person is said to have a disability if they have a “physical or mental impairment” and that impairment “has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.”
If you are aware that an employee has a disability, the Act makes it illegal for you to treat that person unfavourably because of a factor that is connected to their disability. You can only discriminate on these grounds if you can show that it is “a proportionate means of achieving a legitimate aim.”
Gender reassignment is also newly defined in the Act. In the past, individuals were required to be under medical supervision in order to be protected from discrimination. The Act removes this requirement – so a person will receive protection if he or she decides to live as a person of the opposite gender, regardless of whether or not they seek a medical procedure.
What are the other major changes?
- Dual discrimination. Employees can now bring a claim relating to two of the protected characteristics. Claims may now be successful even when there is insufficient evidence to prove discrimination based on just one of the characteristics. This is only possible in claims of direct discrimination. Claims relating to more than one protected characteristic are not permitted.
- Pre-employment health checks. These are now banned unless they are deemed to be necessary for the role.
- Pay secrecy. Clauses in employment contracts that attempt to prevent employees talking together about whether they are being discriminated against in terms of pay on the basis of a protected characteristic are now legally unenforceable.
- Positive action. Employers now have more power to choose a candidate from a group that is under-represented in their organisation, when they have a choice between two equally qualified candidates.
- More tribunal powers. Employment tribunals now have expanded powers to make general recommendations, with a view to preventing discrimination in the future.
What happened in 2011?
Most of the changes resulting from the Equality Act were implemented in October 2010. But certain provisions were held back, and implemented over the course of the following three years.
The main change affecting private sector employers in 2011 was the introduction of the dual discrimination rules. From April 2011, employees were able to bring claims relating to two separate protected characteristics, as mentioned above.
Other changes occurred later. New rules on age discrimination relating to the provision of goods or services came into force during 2012, and a requirement for employers to publish information on gender pay discrepancies was introduced by April 2013.
The Equality Act is an important piece of legislation, and one by which all employers must make sure they abide. If you are in any doubt you should seek advice from an employment lawyer.