The majority of the provisions in the Equality Act 2010 will come into force in October, with the implementation of some provisions being delayed until next year to allow organisations across the public and private sectors time to prepare.
A key issue in the Act is the harmonisation and extension of discrimination law to cover age, disability, sex, gender reassignment, sexual orientation, race, religion or belief and, in many but not all instances, marriage and civil partnerships. ‘Disability related' discrimination will be replaced with a prohibition on discriminating against a disabled person by treating them unfavourably where that treatment is not a proportionate means of achieving a legitimate aim.
Another new provision in the Act prohibits employers asking job applicants questions about their health and whether they have a disability, other than in specified circumstances (including whether the applicant will be able to carry out a function that is intrinsic to the work concerned). Employers will still be entitled to screen applicants about health after making a job offer.
The ban on discrimination by association will be extended to all protected characteristics and so will reflect the law developed in recent appeal cases. This should protect spouses, partners, parents and carers who look after a disabled person or older relative from discrimination. They will be protected by virtue of their very close link to that person.
The ban on discrimination based on perception is similarly extended. This will protect employees who experience discrimination because they are wrongly thought to have a protected characteristic - for example, a male job applicant who is rejected because the employer wrongly thinks he is a woman, because he has a name that is commonly used as a woman's name, would be able to claim for sex discrimination.
From April 2011 an employee who claims they have been specifically discriminated against because they are an Asian woman, rather than just because of their race or gender, will be able to claim for this combination of characteristics.
The Act will also widen tribunals' powers to make recommendations in cases where unlawful discrimination has been proved. At present, a tribunal can recommend that an employer takes steps that will reduce the effect of discrimination on the claimant. The Act extends this to enable wide-ranging recommendations to be made applying across the workplace, such as re-training staff, publishing its selection criteria used for staff transfer or promotion, setting up a review panel to deal with equal opportunities, harassment and grievances. While not binding, failure to comply could be damaging to the employer's reputation and be used in evidence against the employer in future discrimination claims.
The Act will mean employers can choose someone for a job from an under-represented group when they have the choice between two or more candidates who are ‘as qualified' as each other (but must not have a policy of doing that in every case). But if the Conservatives win the General Election they may not implement this provision.
Employees will be free to discuss pay, (including seeking or giving information with current and former colleagues) and whether there is a connection between pay and having (or not having) a particular protected characteristic. Action taken against them for being involved in such a pay discussion will be unlawful victimisation.
From April 2011 the Act will create a new single public sector equality duty that will continue to cover race, gender and disability but will be extended to cover age, sexual orientation, religion or belief, pregnancy and maternity and gender reassignment. Public bodies will be required to consider needs, by reference to these characteristics, when designing and delivering public services.
The ban on age discrimination is going to be extended to the provision of services and public functions. Exceptions will be made and some treatment will be objectively justified - we are expecting that regulations will be published possibly in the autumn dealing with the exemptions.
Also employers with 250 employees or more will be encouraged, on a voluntary basis, to publish their pay statistics to demonstrate how they are tackling the gender pay gap. If perceived necessary, this could become compulsory in 2013 (although the Conservatives say they would not require this). Public bodies with 150 or more employees may have to publish their gender pay gap from April 2011.
Rachel Dineley, employment partner and head of the Diversity and Discrimination Unit at law firm Beachcroft LLP, said: "The new law has been a long time coming and the sooner we see the harmonisation of the law in a single Act, the better. Our current discrimination legislation, which governs so much in the workplace and beyond, has often been inconsistent and difficult to interpret. A single set of rules, and some simplified language, will be welcome, but with change come challenges. There is no doubt that the Act will be heavily relied on and tested by employers and employees as soon as it comes into force in October.
"While many principles will remain the same, the scope of discrimination law will be widened and reinterpreted in a number of key respects. We all know that the devil is in the detail; and employers will fall foul of the law, where the detail eludes them. Many will have their work cut out, putting appropriate measures in place to reduce the risk of claims against them. For example, they will have to take a fresh look at how they cater for disabled job applicants and employees.
"Some aspects of the legislation have attracted undue controversy and the risk of claims has been grossly exaggerated. Not everything will come into force at once. Sensible and qualified exceptions will be made where appropriate - for example in the provision of holidays for different age groups and gearing insurance premiums to the risks of insuring different age groups, where there is sound evidence to support it. The detail will be set out in regulations in due course, and specify when exceptions could be justified.
"Transparency on some issues is regarded as key, with the rationale being that transparency will make it possible to monitor and encourage progress. For example, employers will not be able to discipline employees who discuss their pay, where that pay may be linked to some form of discrimination. It is clear that the public sector is expected to play a leading role in implementing change, but private sector employers with 250 employees or more will also be encouraged to publish their statistics to demonstrate how they are tackling the gender pay gap.
"Although employers will not be required to undertake pay audits, and no actual figures will be published, they may be required to disclose the percentage difference and this will inevitably increase the administrative burden on already stretched resources. In addition, we expect public-sector employers with more than 150 employees to be required to publish data on BME and disabled groups.
"Under the Act, the Government proposes to extend the positive action regime. Employers would be able to consider, when selecting between two equally qualified candidates, under-representation of disadvantaged groups and appoint the person from the under-represented. The merits of these new provisions are highly controversial and some view them as social engineering by the back door."
