Equality Act 2010

The Equality Act 2010

25 June 2010

Equality Act 2010

2 main purposes of the Act:

To harmonise discrimination law To strengthen the law to progress on

equality

..resulting in general benefits to the economy

[16 Parts, 28 Schedules, 218 Sections!]

In summary:New socio-economic duty (public bodies)Widens scope for voluntary positive actions Integrated equality duty – to include procurement activitiesEmpower tribunals to make wider recommendationsNew PCs: gender reassignment and pregnancy/maternityDual discriminationWidens scope of age discriminationPower to require gender pay gap reporting (private sector)Extends protection against harassment outside the

workplace

Equality Act 2010

Equality Act 2010

The new ‘socio-economic duty’ - will it survive?

Public bodies (not direct to front-line services)Strategic decisionsTo consider how decisions might help to

reduce inequalities associated with socio-economic disadvantage

Judicial review

Examples

Equality Act 2010The Protected Characteristics:Age Disability (changed)Gender reassignment (changed)Marriage and civil partnershipRace (including caste – new)Religion or beliefSexPregnancy/maternitySexual orientation

Equality Act 2010Gender reassignmentNo longer required to be under medical supervisionWhere a person has proposed, started or completed

a process to change sex

Caste discriminationPower to add ‘caste’ to definition of ‘race’Arguably already includedNational Institute of Economic and Social Research

Equality Act 2010

Pregnancy and maternity discrimination

Extended to non-work cases: in relation to public functions, education and to associations

Examples

Equality Act 2010

Simplifying & standardising definitions and concepts

Direct discrimination: association and perception

Uniform definition of indirect discriminationNo need for comparator in all victimisation

claimsExtends protection from discrimination

Direct Discrimination - Association and Perception

Occurs where A treats B less favourably than others ‘because of’ a protected characteristic

Exception: in marital or civil partnership cases, the PC must be that of the complainant

Protection extended to apply in areas where it does not exist

Harassment as well

Equality Act 2010

Equality Act 2010

Definition of ‘Indirect Discrimination’

“Where a policy disadvantages a group of people with a PC, a person in that group is indirectly discriminated against if they are put at that disadvantage unless policy can be justified….

...i.e. if it is a proportionate means of achieving a legitimate aim”

HarmonisedExtended to disability and gender reassignmentBut not pregnancy/maternity

Equality Act 2010Dual DiscriminationClaims in relation to combination of two PCsWhere single strand unlikely to succeedNot marriage and civil partnership or

pregnancy/maternity discriminationExamples

NB. Public sector equality duty: due regard to the need to eliminate unlawful dual discrimination

Equality Act 2010

Disability Discrimination

Definition Pre-employment health enquiries Discrimination arising from disability …and indirect discrimination Reasonable adjustments

Equality Act 2010

Pre-employment health enquiries

The rule: ban on making enquiries The 6 exceptions

Equality Act 2010

Discrimination arising from disability“Where a disabled person is treated unfavourably because of

something arising form, or in consequence of their disability, unless treatment can be justified…

…i.e. if the treatment is a proportionate means of achieving a legitimate aim”

Post-Malcolm No need for a comparator

..and disability covered by indirect discrimination..

Examples

Equality Act 2010

Reasonable adjustments

Taking reasonable steps to provide auxiliary aids

Including the provision of information in accessible format

Equality Act 2010

Equal Pay – most in need of reform, but least reformed!

Secrecy clauses- Not allowed to discuss pay with colleagues unless discussion

aimed at establishing if discrimination (‘relevant pay disclosure’)

Gender pay reporting – which way will the Government go?

- Power to make regulations requiring private sector employers 250+ employees to publish information

- Compulsory pay audits or only when lose at ET?

Equality Act 2010

Positive Action

Permits positive action in recruitment and promotion

In specific situations – limited scopeVoluntaryCoalition Government’s approach?

Equality Act 2010

Public Sector Equality Duty

New single equality dutyAll PCs except marriage and civil

partnershipDue regard to the need to advance equality

of opportunity and foster good relationsProvides significant rationalisation benefits..

Equality Act 2010

Territorial jurisdiction

Employees employed in Great Britain at the time of dismissal

Expatriate employees, e.g. foreign correspondents, or working in British enclave

Narrower scope

Equality Act 2010

Enforcement and Remedies

Tribunal can make recommendations to benefit wider workforce and help prevent discrimination

Does not apply to equal pay claims

*****Burden of proof: employee has to establish

prima facie case, then employer has to prove not guilty

Drawing inferences

Contact:

Sarah PughWH Law LLP Solicitors

Finch House28-30 Wolverhampton Street

DudleyWest Midlands DY1 1DB

Tel.: 01384 453383Email: [email protected]