Introducing the Equality Act 2010
5 October 2010
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1 October signalled the introduction of a new Act which brings together existing legislation on discrimination and equality. The up side to this is that your responsibilities will mainly stay the same. However, there are a number of new provisions included in it which all employers and business owners should be aware of, including protected characteristics, types of discrimination, third party harassment, and pay secrecy.

What is the Equality Act 2010?


The Equality Act is a new piece of legislation which brings together and replaces the following legislation, as of 1 October 2010:
  • The Equal Pay Act 1970
  • The Sex Discrimination Act 1975
  • The Race Relations Act 1976
  • The Disability Discrimination Act 1995
  • The Employment Equality (Religion and Belief) Regulations 2003
  • The Employment Equality (Sexual Orientation) Regulations 2003
  • The Employment Equality (Age) Regulations 2006
  • The Equality Act (Sexual Orientation) Regulations 2007
Although there are many noteable changes for employers included in the Act, it is worth bearing in mind that it will affect all businesses that provide goods and services to the public, or a section of the public, and this even includes goods or services that are given away free.
 
There are some elements not coming into force yet, such as the prohibition of age discrimination in the provision of goods and services, which you should be aware of for the future.
 

Protected characteristics

 
The Act defines nine ‘protected characteristics'. These are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion and belief, gender and sexual orientation.
 
Although many of the definitions of these groups/characteristics have carried over from previous laws, some changes have occurred in the following areas:
  • Disability – The Act is designed to make it easier for a person to show that they are disabled and protected from disability discrimination. A new definition of disability has been introduced, which means a person is disabled if they have "a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities".
  • Gender reassignment – The Act will provide protection for transsexual people, someone who is "proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex". The Act no longer requires a person to be under medical supervision to be protected.

Types of discrimination

 
The Act defines discrimination by reference to direct, associative, perceptive and indirect discrimination, harassment, third party harassment and victimisation.
 
  • Associative discrimination refers to when someone is discriminated against because of their association with someone who has a protected characteristic.

  • Indirect discrimination can happen when a company policy or practice, which applies to everyone, particularly disadvantages people with a protected characteristic.  

  • Third party harassment refers to harassment by people who are not employed by your company, for example contractors, suppliers or customers. This already applies to sex but will now be extended to other protected characteristics. 

Read more on protected characteristics and types of discrimination.

Key changes affecting employment law

 
Positive action
 
The Act allows you to take what is known as ‘positive action' if you think that employees or applicants for a job who share a protected characteristic suffer a disadvantage connected to that characteristic.
 
Pre-employment health questionnaires
 
Your ability to ask questions about an applicant's health before offering them a job will be limited. This will discourage the use of pre-employment health questionnaires as part of your recruitment process.
 
You will only be able to ask applicants questions about health if:
  • The information will be used to make reasonable adjustments for them to take part in the interview process or carry out their job
  • To decide whether the applicant could carry out essential elements of the job
  • To monitor diversity and take positive action.
Direct discrimination in equal pay
 
Most pay inequality claims will be dealt with in the same way as the existing legislation, which requires a comparison to be made with a real person of the opposite sex working in the same company.
 
However, the Act will also allow a claim of direct pay discrimination with regards to sex, even if no comparator exists in the business. Therefore, a claimant who can demonstrate that they would have received better pay if they were a member of the opposite sex could make a claim.
 
Pay secrecy
 
It will be unlawful to prevent employees from discussing differences in pay that are related to protected characteristics.
 
Any terms and conditions in your contracts of employment that require pay secrecy will be unenforceable in these circumstances, unless they refer to discussing pay with competitors.
 
Employment tribunals
 
The powers given to tribunals have been extended under the Act. If a tribunal finds an employer guilty of discrimination, it will be able to make recommendations that they eliminate or reduce the effect of discrimination on employees other than the claimant. This is meant to prevent further discrimination in the workplace.
 
Please note: This article is meant as guidance and does not constitute legal advice.
 
To help our members cope with the introduction of the Equality Act, we'll soon be able to offer a simple and cost-effective, web-based  solution, which will help you understand and address your obligations under the Act.
 
We're a Founder Member of The United Kingdom Council for Access and Equality (UKCAE), a not-for-profit organisation founded by the private sector to help businesses  with the matter of equality at work. 
 
Keep checking this website and our eNewsletters for more information over the coming weeks.
 
If you are a member of the Forum and would like to speak to one of our advisers about an employment or HR issue, call us now on 0845 130 1722. You'll find all the most up-to-date information on employment law in our new Practical Employer package which includes the Employment Guide in print and online, practical HR templates and helpline support for all your employment and HR issues.


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