The Equality Act: a brief summary

At the 2005 general election New Labour promised to introduce a new Equality Act to simplify the existing body of legislation governing equality in the workplace and ‘promote equality at work‘.

Following the Equalities Review in 2007 led by Trevor Philips (the head of the Commission for Racial Equality at the time), the Act was enacted in 2010 and replaced:

• Equal Pay Act 1970
• Sex Discrimination Act 1975
• Race Relations Act 1976
• Disability Discrimination Act 1995
• Employment Equality (Religion or Belief) Regulations 2003
• Employment Equality (Sexual Orientation) Regulations 2003[5]
• Employment Equality (Age) Regulations 2006

Many of the sections within the previous pieces of legislation dealing with discrimination had overlapped, and the Act simplified the law and made it easier for all to understand and apply.

The Equality Act and protected characteristics

The Act makes it unlawful to discriminate against someone on the grounds of any of these characteristics: age, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion/belief, sex (gender), and sexual orientation.

These are often referred to as protected characteristics.

The main types of discrimination are:

• Direct
• Indirect
• Harassment
• Victimisation

Direct discrimination

This occurs where a person is treated differently because they have protected characteristics (e.g. gender, race, or sex).

Direct discrimination may even occur by association (where a person is treated differently because they are associated with a person who has a protected characteristic) or by perception (because a person appears to have a protected characteristic they are treated differently).

Direct discrimination may be failing to promote a person, dismissing them, or not employing them in the first place because of their protected characteristic.

Indirect discrimination

This form of discrimination is not as obvious and can be unintentional. Indirect discrimination occurs when an organisation has a policy, requirement, or practice that appears to apply to all, but its effect in practice disadvantages a particular group of people with a protected characteristic.

Indirect discrimination may require, for example that a person should be of a certain height, or have worked for a long time before being eligible to apply for a particular role.

If the height/age requirement cannot be justified, the organisation may be found to be discriminating against a particular group of people who find it difficult to meet the requirement.

Harassment

This occurs where the conduct or behaviour is unwanted and relates to one or more of the protected characteristics. The conduct must have the effect or purpose of violating a person’s dignity or creating a hostile, intimidating, degrading, humiliating, or offensive environment for the person receiving it.

Harassment can include name calling, threats, jokes, banter, being excluded, insults, and unwanted physical contact.

Victimisation

Victimisation happens when a person is treated differently because they have made an allegation of or supported a complaint of discrimination. It can even be where the person has given evidence relating to a complaint of discrimination, or raised a grievance concerning discrimination.

Examples of victimisation could include situations where an employee, having brought a discrimination claim against their employer and having remained in employment, was ostracised as a consequence.

Can discrimination be lawful?

Discrimination can be justified if the organisation can show that the policy/requirement it’s trying to implement applies equally to all.

Another situation where it might be lawful to discriminate is where the organisation is trying to preserve its authenticity or dignity.

Care must be taken here though, because it’s very rare that this type of requirement would be justified.

Positive action by employers

An organisation can take positive action to help job applicants where it thinks those applicants are disadvantaged because of their protected characteristics and/or are under-represented in the organisation, or whose involvement in the organisation is disproportionately low because of a protected characteristic.

Making reasonable adjustment

There is a duty on an employer to make reasonable adjustments where an employee is deemed to have a disability, in situations where the knowledge of the disability has been brought to the attention of the employer, or where it’s reasonable to assume the employer should have known of the disability.

If the disability affects the work of the person, for example leads to lower performance or poor timekeeping, the employer should consider reasonable adjustments after discussion with the employee or obtain a medical report.

Who is liable in cases of discrimination?

In most cases the employer would be responsible for the actions of their employees, with or without their knowledge.

If the employer can show that they have taken all reasonable steps – such as diversity training or tackling discrimination robustly when it has occurred – they may use this to show the employee has gone off on a ‘frolic of their own’ and that this had nothing to do with their employment.

Job applications and health

It’s important at the recruitment stage that you do not ask questions relating to the health of a potential employee.

If they bring up any health issues that’s fine, but you as an employer cannot ask any questions about the person’s health. Only once you have selected the right candidate should you ask questions relating to their health.

A note on equal pay

Under the Equality Act, all employees whether in full-time or part-time employment should not be treated less favourably in relation to pay, benefits, and terms & conditions where they are doing equal work.

This area of employment law and best practice is complicated and advice should be taken at every stage where issues of discrimination arise – call 0345 184 4615 to hear more about the Moorepay Advice Line service specially suited to small and medium sized businesses.

Looking for more information? You may also wish to take a look at our free to download and easy-to-read Employment Law Guide.