It has been hailed as a landmark move to harmonise discrimination legislation and to strengthen the law to support progress on equality. But what will the Equality Act mean in practice for employers and employees?
The Act will have a big impact on employers and they should ensure that their equal opportunity and recruitment policies are compliant.
The new law is likely to have a greater impact on smaller organisations as they are less likely to have comprehensive anti-discrimination and harassment policies already in place.
Whilst this will mean extra work, once in force it should ensure that both employers and employees benefit from a fairer and more transparent workplace.
The Act requires organisations of all sizes and types to promote equality and avoid discrimination in the workplace.
It also aims to tackle the pay gap between men and women.
The new law consolidates and clarifies the existing discrimination legislation concerning sex, race, disability, sexual orientation, religion or belief and age, and seeks to adopt a single approach where appropriate.
It also contains a number of important changes to the law.
Here are the key measures:
The definition has been simplified to less favourable treatment because of a protected characteristic i.e. sex, race, disability etc. It has also been made clear that discrimination based on association and perception is unlawful across all strands of discrimination. For example, if someone is treated less favourably because one of their relatives is homosexual, this will amount to direct discrimination. Equally, if they are treated less favourably because of a perceived characteristic, this will be covered.
Protections is extended to all protected characteristics – age, marriage and civil partnership, sex, sexual orientation, race, religion or belief, disability and gender reassignment.
Harassment definition extended
Harassment will have the same definition across all strands of discrimination.
The focus will be on preventing “unwanted conduct which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment”.
A one-off incident may amount to harassment, and so the victim need not have made the perpetrator aware that the conduct was unwanted.
The definition covers conduct which is “related to” a protected characteristic – a protected characteristic being sex, race, religious belief etc.
This means that there is no need for the particular employee’s characteristics to be the reason for the unwanted conduct in order to trigger liability.
Association and perception harassment is now covered.
Protection from harassment has been further extended so that the employer can be held liable for harassment by a third party, such as a customer or contractor.
This will only apply if harassment has occurred on at least two earlier occasions and the employer has failed to take reasonably practicable steps to stop it.
Many contracts of employment contain clauses which prevent employees from discussing their pay or bonuses.
It was initially proposed to ban secrecy clauses altogether. In seeking to justify the proposed ban, the then Equalities Minister, Harriet Harman, said that official figures show that whilst the gender pay gap has been narrowing over recent years, it still remains that for every pound a man earns, a woman earns just 87 pence.
Female part-time workers earn as much as 40% less than their full-time male counterparts.
The new law will make these types of clauses unenforceable (but not ban them altogether), and protect an individual from victimisation if action is taken against them for discussing their pay with their colleagues.
It is hoped that increased transparency in pay will narrow the gap further.
Except in limited circumstances, the Act prevents employers from asking prospective employees about their health before offering them work (or before including them in a pool of applicants from whom they intend to select a person to whom to offer work).
Information and positive discrimination
The Act will require private sector employers with at least 250 employees to publish information about differences in pay between male and female employees. However, this will not come into force until April 2013 at the earliest.
Where an employer reasonably believes that people with a protected characteristic are disadvantaged, have different needs or are disproportionately under-represented, they may take proportionate measures to enable or encourage persons with the relevant characteristic to overcome that disadvantage, to meet their needs, or to enable or encourage their increased participation.
It was also intended to introduce positive action in recruitment and promotion. However, these measures have proved controversial and have not yet been brought into force.
Wider powers for Employment Tribunals
At present, if an employment tribunal upholds a claim of discrimination, harassment or equal pay, it is only able to make awards of financial compensation.
Under the new Act, tribunals will be able to make recommendations that benefit the whole workforce, rather than just applying a remedy to the individual that brought the claim.
For example it could order that an organisation introduces or revises its equal opportunities policy, or provides training for its managers.
Public sector equality Public sector employers are already expected to have in place policies dealing with their duties in relation to race, gender and disability.
These policies require “due regard” to be given to the need to promote equality, and contain specific obligations to carry out ethnic monitoring and produce written equality schemes and equality impact assessments.
The Act will replace these current duties with a unified duty that will cover all discrimination strands, but these provisions will not come into force on 1 October 2010.
Private sector employers should not assume that this will not affect them.
Any organisation that contracts with public sector bodies may see a knock-on effect, with the public sector body taking the private organisation’s equality policy into account when deciding to whom they will award the contract.
The long-awaited Act follows more than four years of reviews, discussions and consultations.
The new law will have effect in England, Wales and Scotland.
The majority of the Act will come into force come into force on 1 October 2010, as intended. However, some provisions (combined discrimination and public sector equality duties) will come into force later.