Biggest Developments Ever Seen In Discrimination Law Come Into Force Today

1 October 2010

The Equality Act 2010 comes into force today, 1st October 2010.

The Act will replace the current framework including: Disability Discrimination Act, Sex Discrimination Act, Equal Pay Act, Race Relations Act and Age Discrimination Act.

Although mainly relevant to employment, the Act also deals with discrimination in relation to goods and services, public procurement etc.

In relation to employment, the Act aims to codify, deal with issues raised by case law, extend protection and simplify current anti-discrimination law and may mean employers need to seek employment law advice from discrimination lawyers to avoid potential pitfalls.

Gareth Kervin, Director, Partner and discrimination lawyer at Kervin & Barnes Solicitors (a niche employment law firm in Mayfair, London), says “Human resources teams will need to be aware of the extensions and additional provisions within the Equality Act 2010 to help, among other things, avoid a discrimination claim against them.”

He added “Potential penalties include litigation and an investigation by the Equality and Human Rights Commission (EHRC) but expert discrimination lawyers can help companies avoid these consequences.”

The framework of the Equality Act 2010 includes: the Equality Act, schedules to the Act, explanatory notes, guides, Codes of Practice (EHRC drafted) and implementation and transition arrangements.

Excluded from today’s implementation is the right to combine two protected characteristics and bring a ‘dual discrimination’ claim, which, if at all, is likely to be brought into force from April 2011.

Also currently excluded is the requirement that an employer with more than 250 employees publishes information regarding their gender pay gap.

The final exclusion involves stipulations allowing positive action in recruitment and promotion by employers in favour of members of under-represented groups.

The Government is still deliberating the above and it is not yet clear if or indeed when these will be brought into force.

Overview of the changes the Equality Act 2010 brings

The protected characteristics of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation remain largely unchanged.

Prohibited conduct includes direct discrimination, indirect discrimination, discrimination arising from a disability, duty to make reasonable adjustments, (combined discrimination), pregnancy and maternity discrimination, harassment and victimisation.

Other than pregnancy and maternity discrimination, a real or hypothetical comparator, who does not share the protected characteristic, is required.

Previously with age, sex, disability, gender reassignment, the complainant needed to have a protected characteristic. However, the Act introduces association and perception.

Therefore a complainant only need be associated with a person who has a protected characteristic, or be perceived to possess a protected characteristic, making a discrimination lawyer’s advice essential to guide employers through best practice.

Under S60 (disability discrimination) is it now potentially unlawful to ask an applicant about their health and if the employer does ask, the burden shifts to them to prove whether the response was not relied upon to the individuals detriment.

Gareth Kervin, Director, Partner and discrimination lawyer at Kervin & Barnes Solicitors commented “During the recruitment process, questions about access needs such as a wheelchair ramp are acceptable but generally all medical issues should be dealt with at the end of the process.

Adding that “Most discrimination lawyers would agree that questions such as ‘how many days sickness absence have you had in the last year?’ should be avoided prior to offer.

Furthermore, he said “Any monitoring forms should be kept apart from the main application form and application forms should concentrate on information that is relevant to a person’s ability to do the specifics of the job in question.

Gareth Kervin (expert discrimination lawyer at Kervin & Barnes Solicitors) advised “Employers can medically screen after a job offer but if an issue is identified, a duty to make reasonable adjustments may be triggered, so HR must be prepared for that knowledge.

He maintains that “A review of application forms and the recruitment process is advisable.”

Disability Related Discrimination is now referred to as “discrimination arising from disability” (S15) in order to, among other things, counter recent difficulties in identifying comparators.

Indirect discrimination is often found in a group situation and occurs when a provision, criterion or practice (PCP) is applied to one person (B) by another (A).

This PCP puts persons who share B’s characteristic at a disadvantage, compared to persons without this characteristic. If the PCP is not a proportionate means of achieving a legitimate aim, indirect discrimination also occurs.

Under the Act, harassment protection is extended to colour and nationality and must violate a person’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment i.e. association and perception are included.

The Act extends to cover victimisation for seeking, making or receiving a “relevant pay disclosure” i.e. a disclosure to establish if there is a connection between pay and having/not having a protected characteristic.

Under the Act, it is unlawful to instruct, cause or induce someone to discriminate against, harass or victimise someone else, or attempt to do so (complaints can be made whether or not the instruction was carried out).

Experienced discrimination lawyer, Gareth Kervin, said “I would suggest reassessing equality and diversity policies to establish whether there is need for a separate harassment policy, policy/provisions on pay discussion between employees, family leave/dependants policies, sick leave policy and the whether a carers policy would be appropriate.”

For more discrimination law advice relating to the Equality Act 2010 or advice on any other employment related issues, contact Kervin & Barnes Solicitors on +44 (0)203 178 5361, or if you’d prefer, click here to contact us by another method.