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November 2010 Newsletter

November 24th, 2010

The Equality Act 2010

On 1st October this year the Equality Act 2010 came into force. The Act:-

  1. Consolidates the anti discrimination legislation
  2. Widens the protection against discrimination to cover discrimination on the grounds of “association” and “perception.”
  3. Makes some changes to the law in relation to disability
  4. Introduces rules on pre employment health checks
  5. Introduces a new definition of harassment
  6. Restricts the effect of  “pay secrecy clauses” in employment contracts

The Act refers to 9 “protected characteristics.” It is unlawful to treat an employee less favourably because of a protected characteristic. These are:-

  • Age
  • Disability
  • Gender reassignment
  • Marriage and Civil Partnership
  • Pregnancy and Maternity
  • Race
  • Religion or Belief
  • Sex (including gender reassignment)
  • Sexual orientation

Discrimination is not only unlawful on the basis of an employee’s own “protected characteristic,” but also if it is based on the employee’s association with someone with a protected characteristic or the employer’s perception that the employee has a protected characteristic.

So for example, it would be unlawful to discriminate against an employee on the basis that they are looking after a disabled relative (association), and unlawful to discriminate against someone perceived to be gay, even if that was not the case (perception).

Pre Employment Health Questionnaires

It is now unlawful for employers to ask questions about a job applicant’s health before an offer of employment is made.

This does not prevent a prospective employer

  1. Asking whether any adjustments need to be made to the interview or assessment process because of the applicant’s disability,
  2. Asking whether an applicant will be able to carry out a function which is intrinsic to the role in question.
  3. Asking whether a candidate has a disability if it is to monitor diversity
  4. Where having a particular disability is an occupational requirement


Harassment is defined in the Act as unwanted conduct related to a relevant protected characteristic or of a sexual nature, which has

the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

An employer will be liable for “Third Party harassment,” i.e. harassment of an employee by for example a visitor or member of the public, if the employer failed to take such steps as would have been reasonably practicable to prevent the third party from doing so, if the employer knows that person has been harassed in the course of their employment on at least 2 other occasions (not necessarily by the same third party).

Pay Secrecy clauses and Equal Pay

Any provision in an employment contract, which prevents disclosure of a pay differential, is unenforceable if the disclosure is made for the purpose of finding out whether a pay difference is connected to a particular characteristic

Changes to Disability Discrimination

The definition of disability has been simplified to cover someone who has a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

Whereas previous case law meant that a person who complained of discrimination because of their disability had to compare themselves with a non disabled employee in the same situation, that is no longer required. It is unlawful to discriminate against a person for a reason which arises from their disability.

For example a disabled employee who is dismissed for having been off sick, does not have to show that a non disabled employee who has a similar sickness record would have been treated differently. It is enough for the employee to show the treatment was for a reason connected to their disability, to establish that the discrimination may be unlawful if the employer cannot justify it.

To defend a claim of disability discrimination an employer must show that the treatment complained of was “a proportionate means of achieving a legitimate aim.”

It is now possible to “indirectly discriminate” against a disabled person.

Points for action

We can help you with any of the following suggestions for further action

  • Revise and update your Equal Opportunities Policy
  • Review any questions you ask about a job candidate’s health as part of your recruitment procedure
  • Pay careful attention to any complaints your staff might raise about treatment they receive from customers, or other members of the public they encounter in the course of their employment, and take action to deal with any problems to avoid a potential claim for “third party harassment” by one of your staff.
  • The widening scope for discrimination claims underlines the importance of following correct procedures when taking any action (including disciplinary and dismissal) in relation to a member of staff. Even when dealing with employees with under a year’s employment, following correct procedures will help you demonstrate the real reason for your action to defend against any unwarranted accusation of unlawful discrimination
  • When dealing with any problems with staff in relation to lateness or attendance issues, or any problems between staff, ensure you are alert to any potential “discrimination” issues which might be connected to staff’s family or friends as well as the individuals themselves.
  • Consider introducing comprehensive Diversity Policies and procedures, with  training for staff to ensure you do everything you can reasonably be expected to do to prevent unlawful discrimination. This provides a defence to a claim that the employer should be liable for the discriminatory act of one of its employees.
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