DISCRIMINATION AND EQUAL OPPORTUNITIES
The Equality Act 2010 came into force on 1 October 2010. In one way or another it affects Employers and Employees, those providing goods or services and consumers. The Act was not intended to make an enormous change to the existing law which (by and large) remains as it was. However, there are one or two aspects that have altered, including in particular the law in relation to disability discrimination.
The original titles such as age discrimination, disability discrimination, race discrimination etc. have now been replaced by slightly different terminology in that the following headings:-
- Disability (including mental health and the clinically obese)
- Religion or Belief
- Sexual Orientation
- Gender Reassignment (i.e. those who are having or have had a sex change, transvestites and trans-gender people)
- Marriage and Civil Partnership
- Pregnancy and Maternity
Are now known as protected characteristics.
The Act makes it clear that there are now six different types of discrimination.
1. Direct Discrimination
This is what most people would recognise as being discriminatory behaviour, that is to say you treat somebody less favourably than another person because of a protected characteristic as in “we will not employ anybody over 20”.
2. Indirect Discrimation
This is one of the changes introduced by the Equality Act. Indirect discrimination is already applied to age, race, religion or belief, sex, sexual orientation and marriage and civil partnerships. The concept of indirect discrimination has been extended by the Equality Act to cover disability and gender reassignment. Indirect discrimination occurs if you have a rule or policy that applies to everybody but creates a particular disadvantage to those people who share a protected characteristic. Most usually it is a rule that on the face of it appears to apply to all but is then found to have an adverse affect on a minority with the protected characteristic.
The harassment regulations already apply to sexual discrimination but are now extended to cover age, disability, gender reassignment, race, religion or belief and sexual orientation. The Equality Act makes an Employer potentially liable if their Employees are harassed by third parties who are not Employees, such as customer or Client. This would only apply if you became aware that your Employees were being harassed and did nothing about it.
Victimisation arises when an Employee is treated badly because they have either made a complaint or raised a grievance under the Equality Act or supported somebody else in doing so.
5. Discrimination by Perception
This already applies to age, race, religion or belief and sexual orientation but the Equality Act 2010 extends this to cover disability, gender reassignment and sex. Discrimination by perception is discrimination against somebody because it is believed that they have the protected characteristic, even if it may not be the case. For example, abusing or insulting a heterosexual male in the belief that he is gay amounts to perception discrimination. Similarly abusing or insulting a heterosexual male knowing that he is heterosexual but taunting him as if he was gay also amounts to discrimination by perception.
6. Associated Discrimination
There are already regulations in place in relation to race, religion or belief and sexual orientation but discrimination by association has been extended to cover age, disability, gender reassignment and sex. It is effectively discriminating against somebody because they are associated with somebody who has a protected characteristic. It might arise when an able-bodied person has a disabled relative for whom they are responsible. Somebody may refuse to employ the able-bodied person because they are worried that they may be distracted by the need to care for their disabled dependant. A refusal to employ them in these circumstances would be discrimination by association.
Great care is needed to avoid claims based on allegations of discrimination. In the first place there is no minimum qualifying period of employment (as there is for example for unfair dismissal) and in addition, awards of compensation for successful claims can be significant.
There are one or two other aspects of the Equality Act which are quite important and these aspects include the following:-
1. Wage Discussions
Employers often prefer their staff not to discuss their wages, indeed many Employers have conditions in their contract purporting to prevent this. Since the introduction of the Equality Act Employees are free to discuss their wages with each other if they wish to do so.
Employers are no longer allowed to ask prospective Employees about their health before offering them a job. Employees are no longer required to disclose their sickness record when making a job application. Employers cannot circumvent this requirement by asking somebody else (for example an occupational health specialist) to make these enquiries on their behalf. Such enquiries may only be made once the job has been offered and then only with a view to establishing whether the Employee suffers from a disability which may require adjustments to be made.
3. Nursing Mothers
One of the most advertised aspects of the Equality Act is that breastfeeding mothers cannot be invited to go somewhere more private, although they are of course free to do so if they wish.
What has been set out above is no more than a thumbnail sketch of the changes introduced by the Equality Act. As indicated at the outset most of the requirements and rules are already in place and have simply been grouped together in the Equality Act 2010.