The Equality Act 2010 – The UK’s New Anti-Discrimination Legislation

The Equality Act 2010 (EA 2010) comes into force on the 1st October 2010 and it has widespread ramifications for employment law in the United Kingdom.

The principal objective of the EA 2010 is bring together all of the UK’s anti-discrimination legislation that has been introduced since the 1970’s under one piece of legislation and to simplify and harmonise it (e.g. the Disability Discrimination Act 1995, the Race Relations Act 1976, the Sex Discrimination Act 1975, the Equal Pay Act 1970, etc). In this respect, its aims and objectives are similar to those of the Civil Rights Act 1964 in the United States and the European Unions Equal Treatment Directives.

The main provisions of the EA 2010 are as follows:-

• Where employers have been found guilty of discrimination, Employment Tribunals can now demand that they implement changes to prevent further discrimination.

• The law relating to harassment is extended so that employees can bring a complaint for harassment even where it is not directed at them personally, so long as they can show that the harassment created an offensive environment for them to work in. Furthermore, employees can also bring a claim where third party harassment takes place. That is, employers can potentially be held accountable for harassment by persons they don’t employ (i.e. customers and suppliers).

• Associative Discrimination: this is a type of claim that is now being extended to all areas of anti-discrimination law. It can be brought where an employee can claim direct discrimination (i.e. less favourable treatment) because they are associated with a person who has a certain protected characteristic (i.e. disability, sex, race, age, etc). This previously only applied to race discrimination, and discrimination by reason of sexual orientation, religion, and belief.

• Discrimination Arising From Disability: this is a new type of claim in which those with a disability can bring a claim where they feel that they are being discriminated against by their employer in terms of being treated less favourably as a result of an issue arising in consequence of their disability. This was brought in to counter the problems caused by the decision in the case of London Borough of Lewisham v Malcolm (2008). As a result of the Malcolm case, disability-related discrimination became much harder to prove because in that case, it was decided that the correct comparator was a non-disabled person with similar circumstances. Essentially, what this meant was that employers were able to defeat disability-related discrimination claims because they were able to show that a comparator would have been treated in exactly the same way. The new type of claim of discrimination arising from disability attempts to eliminate this problem. It removes the need for a comparator and the employee now simply needs to show that the less favourable treatment relates to something arising in consequence of their disability (and not the disability itself). Nevertheless, an employer will have defence if they can demonstrate that the less favourable treatment is a proportionate means of achieving a legitimate aim or they were unaware of the disability.

• Discrimination By Perception: this is another type of claim which is being extended to all areas of discrimination law. It is a claim which can be brought for direct discrimination (i.e. less favourable treatment) where an employer believes the employee possesses a protected characteristic (i.e. age, sex, race, disability, etc), even if they don’t. Previously, this only applied to age discrimination, race discrimination, and discrimination by reason of sexual orientation, religion, and belief.

• Indirect discrimination (i.e. a practice, criterion, policy, etc that is applied to everyone, but creates an unjustifiable disadvantage for a particular group who share a protected characteristic) is now extended to apply to disability and gender reassignment discrimination as well as those areas it previously applied to.

• During recruitment, employers can no longer ask questions about a candidates health except where they apply to essential aspects of the job (e.g. heavy lifting)

• To be eligible to bring a claim for discrimination by reason of gender reassignment, Claimant’s no longer need to have been under medical supervision (i.e. the legislation now also protects those who have not undergone any medical procedures as well as those who have).

• In terms of employers justifying certain actions, there is now a new single objective test which replaces the different tests that used to apply.

• The ‘List of Capacities’ re disability discrimination is now being removed as it was viewed as being unduly restrictive. Instead, Employment Tribunals will now be left to make a ‘common sense’ decision on whether an impairment has a substantial effect on day to day activities.

• The EA 2010 as originally intended, allowed employers to take ‘positive action’ re under-represented groups. However, this part of the legislation will not be coming into force on the 1st October 2010 and the new Coalition Government may decide to remove it from the Act altogether.

• Equal Pay: employees can now bring a claim for Direct Pay Discrimination, even where no actual comparator can be found so long as they can show that they would have received higher pay had they been of the opposite sex (i.e. by using hypothetical comparators).

• Pay secrecy is now outlawed

• Dual Discrimination: The EA 2010 introduces protection against dual discrimination whereby it is now illegal to discriminate by treating an employee less favourably because of a combination of two protected characteristics from the following group: sex, race, disability, age, sexual orientation, religion or belief, and gender reassignment.