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This timely article, written by Paul Lewis, barrister at St Johns Chambers, Bristol, highlights the most important sections of the new Equality Act, in particular the ways in which the new Act differs from previous discrimination legislation.
NOTE: Paid subscribers can claim CPD by listening to Paul's podcast on the Equality Act available on the site here
The Equality Act 2010 ("the Act") received Royal Assent on 8 April 2010. In recent months there has been a round of press speculation about what attitude the Coalition government might take to this Labour inspired piece of legislation - would they ditch it, keep it or change it? We now know that the first significant wave of implementation will take place on 1st October 2010 when around 90% of the Act will come into force. By taking a selective look through some of the more eye catching parts of the new Act, this short piece aims to help make sure that employment practitioners are not caught entirely by surprise when the changes come into effect.
The main aims of the Act are said to be twofold: to reform and harmonise discrimination law and to promote progress on equality. The Government Equalities Office have recently trumpeted the Act as, "an historic piece of legislation that contains a range of new rights, powers and obligations to help the drive towards equality." Employment law practitioners may adopt a slightly more sober assessment. Notwithstanding certain substantive changes, primarily the Act must be viewed as a grand tidying up exercise aimed at bringing all forms of discrimination law under one roof. This is a welcome development, but no-one should be under the illusion that radical change is afoot.
Provisions coming into force on 1 October 2010
Protection against discrimination on account of protected characteristics has historically been spread over a number of pieces of legislation. The Act aims to bring them all under one roof. The 9 protected characteristics identified in the Act (s.4) are:-
In the Act, s.13(1) provides that,
"a person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others."
There are some significant things to note about that phrasing. Firstly, discrimination occurs if A treats B less favourably because of a protected characteristic. B does not have to have the characteristic. Associative discrimination is therefore now wider than it was before. If the less favourable treatment of B is because someone else has the characteristic, that can be discrimination against B. By the same token, discrimination because of a protected characteristic can occur even where no-one has the characteristic. Thus if A treats B less favourably because A (wrongly) thinks that B has the protected characteristic, that too can be discrimination.
The provisions relating to indirect discrimination are set out at s. 19(1) which provides that,
"a person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's."
s.20(2) provides that:-
"(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if -
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim."
This phraseology will be familiar to practitioners from the previous discrimination legislation. It now applies the European inspired definition of indirect discrimination to protected characteristics across the board, although pregnancy and maternity have their own code in sections 17-18.
Harassment and victimisation
Sections 26 and 27 of the Act deal with harassment and victimisation claims. In relation to harassment claims, the definition is widened to include association/ perception cases in line with the new definition of direct discrimination. So s.26 starts:-
"(1) A person (A) harasses another (B) if -
(a) A engages in unwanted conduct related to a relevant protected characteristic [or of an unwanted sexual nature], and
(b) the conduct has the purpose or effect of -
(i) violating B's dignity, or
(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B."
The provisions at section 27 apply where a person is subjected to a detriment because he or she has brought proceedings or given evidence in proceedings against the discriminator under the Act or made allegations in good faith of breaches of the Act. Prior to the Act a claim of victimisation based on discrimination would fail if the employer did not treat the complainant any less favourably than a person who had not done one of the protected acts. The new phraseology of section 27 removes the need for a comparator in relation to victimisation claims.
Changes to disability discrimination
The ill-fated "disability-related discrimination" does not appear in the Act. Instead we have s.15 dealing with "discrimination arising from disability" (in addition to the direct and indirect discrimination provisions which also apply to disability). S.15 provides that:
"(1) A person (A) discriminates against a disabled person (B) if -
(a) A treats B unfavourably because of something arising in consequence of B's disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability."
This reverses the effect of London Borough of Lewisham v Malcolm which had done so much to limit the scope of disability-related discrimination claims. Possibly the words "something arising in consequence of B's disability" can be considered broader than the old "reason which relates to a person's disability" test, but that remains to be seen.
As a way to try to prevent disability discrimination (particularly aimed at people suffering psychiatric illness perhaps), s.60 of the Act prohibits employers asking about the health of applicants before work is offered. Contravention of this provision is enforceable only by the Equality and Human Rights Commission. Employers should be aware that simply asking about health does not equal disability discrimination, but conduct in reliance on the answer might be. The Tribunal is entitled to use the fact of the question to draw an inference (s.60(5)). Of course, there will be various situations in which asking about health is perfectly permissible (for example diversity monitoring.)
Pay secrecy clauses
One controversial provision is s.77. This renders contractual terms purporting to prevent employees disclosing their salaries (or any terms of their work) unenforceable insofar as the employee wishes to see whether or not discrimination is occurring. Breach of this provision will nevertheless remain a question of fact and degree. Employees may talk about their salaries if they are trying to find out whether or not the salary structure is discriminatory. By the same token, simple gossip about salaries can still be prohibited.
Provisions not coming into force on 1 October 2010
While much of the Act does come into force on 1 October, some of the more politically sensitive parts of the Act have been quietly moved into the long grass (for the time being at least). Some of the more significant provisions are highlighted below.
Anybody who has studied the Act will know that s.14 is one of its more baffling parts. This section has been referred to as 'combined discrimination' or 'dual characteristic discrimination.' Section 14(1) provides that:-
"A person (A) discriminates against another (B) if, because of a combination of two relevant protected characteristics, A treats B less favourably than A treats or would treat a person who does not share either of those characteristics."
The new provision was apparently designed to increase protection for claimants whom (it was felt) lacked sufficient protection under the different types of discrimination already available. After a good deal of head-scratching, one would be perfectly entitled to ask how this provision would have helped to remedy the perceived problem. Take a theoretical example: a disabled Sikh man advancing a discrimination complaint. He could plead direct discrimination on the basis of each protected characteristic alone and in addition (using s.14) plead different combinations of the three characteristics, meaning overall six ways of potentially pleading a case arising from the same facts. Would s.14 substantively change or add anything useful to the nature of the Claimant's case? One suspects not. On the contrary, the most likely effect of the new section would have been to unnecessarily duplicate pleadings and put employers on the back foot without good reason. In any case, the Coalition have said that they need further time to think about this. Who knows whether it will ever see the light of day.
Public sector socio-economic duty
Also being put out to grass is the "public sector duty regarding socio-economic inequalities" which requires various public authorities (including government departments, county and district councils, police and some healthcare authorities) to "have due regard" to the desirability of reducing inequalities arising from socio-economic disadvantage when making strategic decisions on how to exercise their functions (s.1). Note that any failure in this regard would not have conferred a private cause of action in any case. Prior to the election, the Conservatives said that they would not bring the socio-economic inequality obligation into force. It remains to be seen whether this provision will see the light of day under the Coalition. A government consultation is currently underway and that will close on 19 November 2010.
Gender pay gap information.
Finally, section 78 provides that regulations may require the pay of male and female employees to be published by larger employers (over 250 employees). The old Government committed not to introduce regulations until 2013, and only then if employers did not publish voluntarily. The old Government had also intended to make publication of pay gap information compulsory for public sector employers with over 150 employees by 2011. There have been conflicting media reports quoting Whitehall sources saying that the Government plans not to enforce the gender pay gap information provision. It is now clear these provisions will not be brought into force for the time being. It has been mooted that the Coalition will instead bring forward its own plan for equal pay audits.