An Introduction to the Equality Act

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Just a reminder that most of the Equality Bill came into force on 1st October 2010, having been designed to simplify the existing, somewhat confusing, anti-discrimination measures. All employers will be affected as it will be much easier for workers to bring complaints of discrimination if they feel they have been treated unfairly. All employers should review their recruitment processes, equal opportunities and sickness policies to avoid complaints. The Act will protect against discrimination in the workplace because of the following “protected characteristics”:
  • Disability
  • Age
  • Marriage and civil partnership
  • Pregnancy and maternity
  • Sex
  • Gender reassignment
  • Sexual orientation
  • Race
  • Religion or belief
It will be important to train staff in these new rules to ensure they don’t inadvertently break the new rules and so we have arranged a seminar on this topic in November – more details in our next e-bulletin. One of the key changes is that pre-employment questionnaires will no longer be permitted other than in very specific circumstances such as where medical fitness is crucial for a particular role such as driving. Asking general questions about the individual’s health that are not specifically related to the job will be prohibited. Asking questions about their health could also raise the possibility of a disability discrimination claim if they are not appointed. Employers will still be entitled to screen applicants about health after making a job offer. The Act continues to use the already familiar concepts of direct discrimination, indirect discrimination, victimisation and harassment but there are some changes. Direct discrimination occurs if an employee is discriminated against because of a protected characteristic, whether or not the employee possesses that characteristic and it will be unlawful to discriminate against employees because they have a connection with someone else who possesses a protected characteristic, or because they are mistakenly perceived to possess a protected characteristic – discrimination by association or perception. The ban on discrimination by association will be extended to all protected characteristics and so will reflect the law developed in recent appeal cases. This should protect 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. The Act extends liability for third-party harassment to all protected characteristics other than pregnancy/maternity and marriage/civil partnerships if the employer has failed to take reasonable steps to prevent the harassment and provided the employer knows that the employee has experienced third-party harassment on at least two prior occasions. A new concept of combined discrimination is introduced whereby, for example, an employee who claims they have been specifically discriminated against because they are an Asian woman, rather than just because of their race or gender, will be able to claim for this combination of characteristics. Detriment arising from disability will replace the concept of disability-related discrimination and occurs when employers treat employees in a detrimental way because of something that is a consequence of their disability. For example, it would be unlawful to dismiss an employee with a poor attendance record when their absence was caused by a disability unless the dismissal could be justified as a “proportionate means of achieving a legitimate aim” or the employer could not have reasonably been expected to have knowledge of the disability. Employees will be free to discuss pay, (including seeking or giving information with current and former colleagues) and whether there is a connection between pay and having (or not having) a particular protected characteristic. Action taken against them for being involved in such a pay discussion will be unlawful victimisation.

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