The Equality Act 2010 came into force on 1st October 2010.The aim of the Act is to streamline and combine previous discrimination legislation. It is hoped that this will, in turn, make matters easier for businesses. Accordingly, businesses with employees or providing goods or services to the public need to be aware of the changes to previous legislation.
Some of the key changes
i) The headings of age, disability, race, religion or belief, sex, sexual orientation, gender reassignment, marriage and civil partnership, and pregnancy and maternity are now ‘protected characteristics’.
ii) There are now seven different types of discrimination:
a) Direct discrimination: discrimination because of a protected characteristic.
b) Associative discrimination: direct discrimination against someone because they are associated with another person with a protected characteristic. (For example: carers of disabled people and elderly relatives, who can claim they were treated unfairly because of duties that had to carry out at home relating to their care work.
c) Indirect discrimination: where a rule or policy that applies to everyone but disadvantages a person with a protected characteristic.
d) Harassment: behaviour deemed offensive by the recipient. Employees can claim they find something offensive even when it’s not directed at them. (For example: an employee overhearing racist comments).
e) Harassment by a third party: employers are potentially liable for the harassment of staff or customers by people they don’t directly employ, such as a contractor visiting Company premises.
f) Victimisation: discrimination against someone because they made or supported a complaint under Equality Act legislation.
g) Discrimination by perception: direct discrimination against someone because others think they have a protected characteristic (even if they don’t).
iii) An Employer can only ask a potential employee about their health (before offering them work) if it is to ascertain whether the employee can carry out an essential task or to monitor diversity.
iv) Mothers are allowed to breastfeed in public.
v) Age is still the only protected characteristic by which you can justify direct discrimination, i.e. as long as it is done to meet a legitimate aim.
vi) Staff are now free to discuss wages with each other.
vii) Individuals can now bring a ‘dual discrimination’ claim, whereby a Tribunal assesses the impact of the two protected characteristics together e.g.(‘older female’) where before they considered each protected characteristic separately (‘older’ and ‘female’).
The concerns for small businesses
These will include: the risk of increased claims by staff, facing claims stemming from actions by third parties, facing potential “dual claims”, finding time/resources to deal with employment issues and ensuring compliance, staff discussing/comparing pay and dealing with health issues before an durinng employment.
Businesses will face a great deal of uncertainty in light of the nature and extent of the new legislation. Only time will tell as to whether there will be a significant increase in claims by staff and how the Employment Tribunals will deal with the new legislation. Irrespective of this, businesses should be reviewing, and if necessary updating, their existing policies and procedures to reduce the risk of claims.
This article was written by Karl Barnes, a solicitor in our Employment Department.