July 2010: The Equality Act comes into effect on the 1st October 2010, with some provisions being delayed till 2011. I will not attempt to summarise all of the provisions of the Act. However Some of the main points to be aware of are:
What is covered?
- The Equality Act consolidates and extends discrimination law to cover age, disability, sex, gender reassignment, sexual orientation, race, religion or belief, marriage or civil partnerships which will be known as ‘Protected Characteristics’.
Disability:
- ‘Disability related’ discrimination will be replaced with a prohibition on discriminating against a disabled person by treating them unfavourably where that treatment is not a proportionate means of achieving a legitimate aim.
- For example, an employee with a visual impairment is dismissed because he cannot do as much work as a non-disabled colleague. If the employer sought to justify the dismissal, he would need to show that it was a proportionate means of achieving a legitimate aim.
- Employers wont be able to ask job applicants questions about their health and whether they have a disability, other than in specified circumstances (including whether the applicant will be able to carry out a function that is intrinsic to the work concerned).
- Employers will still be entitled to screen applicants about health after making a job offer.
Discrimination by Association:
- The ban on discrimination by association (for example a parent of a disabled child) will be extended to all protected characteristics. This will now cover spouses, partners, parents and carers who look after a disabled person or older relative from discrimination. They will be protected by virtue of their very close link to that person.
Discrimination based on Perception:
- Employees wrongly thought to have a protected characteristic (for example, an employee thought to be gay but who isn’t) will be able to claim for sex discrimination.
Recommendations of Tribunals:
- Tribunals will be able to make recommendations when unlawful discrimination is proved.
- This could include re-training staff, publishing its selection criteria used for staff transfer or promotion, setting up a review panel to deal with equal opportunities, harassment and grievances.
- Failure to comply could be damaging to the employer’s reputation and be used in evidence against the employer in future discrimination claims.
Under Represented Groups:
- Employers can choose someone for a job from an under-represented group when they have the choice between two or more candidates who are ‘as qualified’ as each other. However Many employers will not wish to take the risk of trying to apply this in practice.
Talking about Pay:
- Employees will be free to discuss pay, and whether there is a connection between pay and having (or not having) a particular protected characteristic. This will cover seeking or giving information with current and former colleagues.
- Action taken against them for being involved in such a pay discussion will be unlawful victimisation. So secrecy clauses against talking about pay will be out.
- Employers with 250 employees or more will be encouraged, on a voluntary basis, to publish their pay statistics to demonstrate how they are tackling the gender pay gap. This may become compulsory in due course. Public bodies with 150 or more employees may have to publish their gender pay gap.