The Equality Act: one year on
In October 2010, the implementation of the Equality Act 2010 (EqA) marked the arrival of the most important piece of anti-discrimination legislation in forty years.
The EqA repealed the vast majority of the UK's existing anti-discrimination provisions and, in doing so, set out to achieve two bold aims: firstly, to consolidate and simplify the existing law and, secondly, to strengthen the law to improve equality.
Just over a year on, it is clear that the EqA has achieved much success with its first aim. It has brought together over 100 separate discrimination measures, and harmonised them as far as possible through a new concept of 'protected characteristics'. These encompass all the old grounds on which discrimination was prohibited including disability, sex, race etc.
In relation to its second aim, the EqA's success has, arguably, been more limited. Although it has introduced a number of brand new provisions including rules on gender pay reporting, pay secrecy clauses, positive action and combined discrimination, each with the potential to strengthen the law and improve equality, it has become clear over the past year that these measures do not have the weight that was widely anticipated before the EqA came into force.
In respect of gender pay reporting, the Government has confirmed it will not require private sector employers (who have over 250 employees) to report on gender pay until at least April 2013, and only then if voluntary reporting has not progressed sufficiently. The impact of the provisions on pay secrecy clauses has been, and is likely to continue to be, minimal, given that they only affect a tiny proportion of employers. The rules on positive action in recruitment and promotion are tied to a number of conditions, making them fraught with uncertainty and employers are, therefore, unlikely to rely on them. Finally, in the last year, the Government has confirmed that it will not bring into force the provisions making combined discrimination unlawful.
But one area in which the EqA has successfully strengthened the law is in relation to disability discrimination. The provisions introduced by the EqA have had an immediate and practical impact on employers, and forced employers to carefully review their old policies and procedures.
The EqA has, for the first time, made indirect disability discrimination unlawful. This adds a new layer to the potential liabilities an employer may face. Indirect discrimination may be used to challenge policies and procedures, such as absence management procedures, which might have a significant impact on employees with a disability.
The EqA has also replaced the old provisions prohibiting disability-related discrimination with a new protection against discrimination arising from a disability. A disabled person is now protected from unfavourable treatment (eg disciplinary proceedings) because of something arising in consequence of their disability (eg long term absence). It is therefore now much easier for a disabled person to succeed with this type of claim than under the old law, where they had to identify a comparator. Although employers can justify their treatment and can argue the treatment was not in fact disability related, they still have to deal with this more difficult area of law. Employers will only be liable if they know, or could reasonably be expected to know, that the individual was disabled. It is imperative that employers have used the last year to get their policies and procedures in order to effectively address this new protection.
Another key development under the EqA is the introduction of a ban on pre-employment health questions, excepted in certain prescribed circumstances. In the past year, therefore, employers who previously included health questionnaires as part of their standard recruitment processes have had to think very carefully about how to deal with this. The real risk lies in the fact that if a job applicant subsequently brings a claim that they have been discriminated against (for example, they were not offered the job) as a result of the employer relying on information obtained by an unlawful pre-employment enquiry, the onus is on the employer to show that it has not discriminated against the applicant because of disability.
One year on, cases interpreting the EqA's new provisions have yet to filter through the tribunal system. However, it will not be long before they do so. The next few months will therefore be crucial in assessing the true impact of the EqA and the extent to which the overhaul of nearly half a century's worth of discrimination legislation has been worthwhile.
Sandra Wallace (pictured) is a partner at law firm DLA Piper