The Act aims to harmonise and restate the existing discrimination legislation and seeks to adopt a single approach where appropriate. The Act is the most important piece of discrimination legislation for some time. There are a number of changes in terminology in the Act, the main one being reference to ‘protected characteristics. These are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
The Coalition Government has taken the conscious decision to hold back and reconsider a handful of the most controversial provisions included in the Act, for example relating to employers taking “positive action” on recruitment and promotion to address inequalities in the makeup of the workforce. These may yet see the light of day, albeit with substantial modifications.
Provisions which came into force on 1 October 2010
- The basic framework of protection against direct and indirect discrimination, harassment and victimisation in services and public functions; premises; work; education; associations, and transport.
- Changing the definition of gender reassignment, by removing the requirement for medical supervision.
- Levelling up protection for people discriminated against because they are perceived to have, or are associated with someone who has, a protected characteristic, so providing new protection for people like carers.
- Clearer protection for breastfeeding mothers.
- Applying the European definition of indirect discrimination to all protected characteristics.
- Extending protection from indirect discrimination to disability.
- Introducing a new concept of “discrimination arising from disability”, to replace protection under previous legislation lost as a result of a legal judgment.
- Applying the detriment model to victimisation protection (aligning with the approach in employment law).
- Harmonising the thresholds for the duty to make reasonable adjustments for disabled people.
- Extending protection from third party harassment to all protected characteristics.
- Making it more difficult for disabled people to be unfairly screened out when applying for jobs, by restricting the circumstances in which employers can ask job applicants questions about disability or health.
- Allowing claims for direct gender pay discrimination where there is no actual comparator.
- Making pay secrecy clauses unenforceable.
- Extending protection in private clubs to sex, religion or belief, pregnancy and maternity, and gender reassignment.
- Introducing new powers for employment tribunals to make recommendations which benefit the wider workforce.
- Harmonising provisions allowing voluntary positive action.
Key Issues for Employers
Asking the ‘Health’ Question
Unless there is a requirement which is intrinsic to the job, employers cannot ask health-related questions until an applicant has been offered a job. Such enquiries can be made of an applicant only if they are necessary for the purpose of:
- establishing whether or not he or she will be able to undergo an assessment (which would include an interview), or whether or not the employer will be required to make reasonable adjustments to the assessment process;
- establishing whether or not he or she will be able to carry out a function that is intrinsic to the work;
- diversity monitoring;
- taking positive action under s.158 of the Act; or
- establishing whether or not he or she has a disability, where having that disability is an occupational requirement for the role.
It is unlikely that a question about the number of days' sickness absence that an employee has had would be necessary for any of the above purposes. Simply asking such a question does not amount to unlawful action under the Act, but if the candidate brings a direct disability discrimination claim relating to the failure of the employer to offer him or her employment, the fact that the question was asked will shift the burden of proof to the employer. The employer will then have to show that it had a non-discriminatory reason for rejecting the applicant.
Pay Secrecy Clauses
Section 77 of the Act renders pay secrecy clauses contained in contracts of employment unenforceable in certain circumstances. While it is not unlawful to include such clauses in contracts, employers need to be aware that they cannot enforce such a clause if the employee in question is involved in a "relevant pay discussion". A relevant pay discussion means a discussion to establish if differences in pay exist that are related to a protected characteristic such as sex, for example an equal pay claim.
Additional Protection from Discrimination, Harassment and Victimisation
The Act extends third party harassment, which was previously limited to sex-related and sexual harassment, to all the protected characteristics except marriage and civil partnership and pregnancy and maternity.
An employer may be liable for the harassment of one of its employees by a third party (for example, a client or supplier), if it failed to take all reasonably practicable steps to prevent the harassment. For the employer to be liable it must know that the employee has been harassed in the course of employment on at least two other occasions by a third party. The third party may be the same or a different person on each occasion.
The protection from discrimination is potentially now broader as the defintion for direct discrimination is because of ‘a’ protected characteristic, rather than relating to ‘my’ protected characteristic. So, an employee can make a complaint of harassment where he or she is offended by behaviour even if it is not directed at him or her. The employee does not need to possess the relevant protected characteristic.
For example, a non-Muslim employee (A) who witnesses a colleague (B) teasing another colleague (C) about C's Muslim faith, and is offended by the harassment that is directed at C, can bring a complaint of harassment. However, A will succeed with the claim only if, having regard to all the circumstances including A's perception, the conduct should reasonably be considered as having the effect of violating A's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for A.
What Changes do Employers Need to Make to Policies and Practices?
Organisations should review and, if necessary, amend their existing policies and procedures (in particular those relating to equal opportunities, recruitment and harassment). Recruitment application forms should be reviewed to ensure they do not ask questions on health that is not permitted under the Act.
In relation to reviewing contracts of employment, employers should be aware that a pay secrecy clause contained in an employee's contract of employment will be unenforceable where the employee is involved in a relevant pay discussion.
It would be advisable to provide information, guidance and/or training to Managers to ensure they are aware of the implications of the Act and don’t behave in a way that could lead to discrimination claims and ultimately end with a Tribunal visit.