Over the past 40 years piecemeal legislation had grown up to remove discrimination and less favourable treatment in the workplace, including:
The Equal Pay Act 1970
The Sex Discrimination Act 1975
The Race Relations Act 1976
The Disability Discrimination Act 1995
The Employments Equality (Religion or Belief) Regs 2003
The Employment Equality (Sexual Orientation) Regs. 2003
The Employment Equality (Age) Regs. 2006
To a large extent, the Equality Act 2010 consolidates and harmonises existing equality legislation. The Act tries to smooth out difference between the existing legislation and introduces some new principles, for example the obligation on public authorities to promote equality, and the banning of discrimination based on caste.
What is not covered in the Act:
Less favourable treatment on the basis of being employed part time
Less favourable treatment on the basis of being employed on a fixed term contract
A general prohibition against bullying in the workplace
What are ‘Protected Characteristics’?
The Equality Act consolidates and extends discrimination law to cover:
Age, disability, marriage and civil partnership, sex, gender reassignment, pregnancy and maternity, sexual orientation, race, religion or belief.
These will all be ‘Protected Characteristics’.
Section 13 defines direct discrimination as follows: ‘A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.’
Thus, the Act retains the requirement for a real or hypothetical comparator who does not share the relevant protected characteristic (except in relation to pregnancy and maternity discrimination).
Indirect discrimination is when you apply a requirement which indirectly affects a larger proportion of one group with a protected characteristic than another.
More women than men want to work part time, particularly after childbirth. If you refuse to allow a woman to return on a part time basis after maternity leave, this may give rise to indirect discrimination.
If you say that only people with 10 or more years experience may apply for a position, this may indirectly discriminate against younger employees (unless you can justify the requirement as being a proportionate means of attaining a legitimate aim)
The Equality Act provides a standardised test for objectively justifying indirect discrimination and direct age discrimination if it is a ‘proportionate means of achieving a legitimate aim’.
Discrimination by Perception:
The Act covers so-called ‘perceptive’ discrimination; that is, discrimination because of a person’s perceived. For example, John lives in Brighton and went to Public School. His colleagues all assume that he is gay and make fun of him as a result. As it happens John is straight. John can still claim protection under the Equality Act, even though he does not have the protected characteristic (namely being gay).
An exception is made in respect of marital or civil partnership status. You can only claim if you actually are married or in a civil partnership, not because people assume you are.
As before, workers cannot harass someone for having a protected characteristic, for example by making jokey sexist comments or sending jokey ageist emails.
Employers will be liable if they knowingly fails to protect employees from repeated harassment by a third party such as a customer or a supplier. This is now standardised across all protected characteristics.
Under S.26(1)(a), a person (A) harasses another (B) if A engages in unwanted conduct ‘related to a relevant protected characteristic’ which has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
It is unlawful to victimise someone as a result of having made a complaint about discrimination, even if it turns out that you do not uphold their complaint. The victim does not have to show less favourable treatment than other persons in the same circumstances.
It is unlawful for employers to instruct or induce someone to discriminate against, harass or victimise another person, by reason of their protected characteristics, even when the instruction is not carried out.
Burden of Proof:
Firstly the claimant (normally employee) must establish the facts from which (in the absence of an adequate explanation) it can be concluded that unlawful discrimination has taken place.
If so, the burden of proof then shifts to the employer to demonstrate if he can, (on the balance of probabilities), that there was an adequate “non-discrimination” explanation for what took place. If he fails to demonstrate this then the tribunal is required to assume that he is “guilty”.
Comparators & Disability:
Other than in less favourable treatment related to pregnancy, the claimant has to demonstrate that they are treated less favourably as compared to someone without the Protected Characteristic.
In disability claims all sorts of problems arose following the case of London Borough of Lewisham v Malcolm HL 2008 which made it almost impossible to identify an appropriate comparator. These problems have now been swept away. In relation to disability:
A person (A) discriminates against a disabled person (B) if:
(a) A treats B unfavourably because of something arising in consequence of B’s disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim” (Equality Act 2010 s.15)
However this does not apply if A did not know, and could not reasonably have been expected to know, that B had the disability.
Are we liable for claims of discrimination brought by volunteers against us?
In X v Mid-Sussex CAB the Court of Appeal held in February 2011 that a CAB volunteer and who had no contract with the CAB could not pursue a claim under the Disability Discrimination Act 1995 (DDA) or under the Equal Treatment Framework Directive. The court rejected the argument that volunteers were caught by the reference to “occupation” in the Directive or the DDA.
This case applies equally to the Equality Act 2010. The judgment has brought relief to charities and other voluntary sector bodies that were concerned about the extra burden that enhanced rights for volunteers would bring. This may yet be appealed to the Supreme Court.
- Although Volunteers with no contractual obligation to personally do work will not be covered by the Equality Act.
- Unpaid workers who are subject to a legally binding contract to ‘personally do work’ may well be covered by the Equality Act.
- People on work experience or a vocational training placement are likely to be covered by the Act as well.
(s56(6) and 83(2), Equality Act 2010).
Our Care Workers are occasionally subjected to racist abuse by users who come into our care centre. Are we liable?
Employers will be liable if they knowingly fail to protect employees from repeated harassment by a third party such as a user, customer or a supplier if it happens on at least three occasions and the employer knows about it but does not take reasonable steps to prevent it.
Third party harassment was already unlawful under sex discrimination rules but as from 1st October 2010 the rules are extended to cover the other protected characteristics.
In other words, if a user of your service repeatedly abuses a Care Worker on two or more occasions, you will be liable if you fail to take such steps as would have been reasonably practicable to prevent the third party from doing so. (Equality Act 2010 s.40(4).
Appropriate action might be withdrawing the service from a particular user or issuing zero tolerance notices etc.
Can a religious youth centre refuse to employ someone who is gay on religious grounds, or because they are not of a certain faith?
It is of course unlawful to discriminate against someone by reason of their sexual orientation, or religious belief.
However the Equality Act 2010 provides for limited exceptions in favour of organised religions which impose one or more of specified requirements the imposition of which would otherwise be unlawful.
This is however provided always that application of the requirement “engages the compliance or non-conflict principle” (Equality Act 2010 sch 9, Part 1 para 2(1)).
The specified requirements are:
a requirement to be of a particular sex;
a requirement not to be a transsexual person;
a requirement not to be married or a civil partner;
a requirement not to be married to, or the civil partner of, a person who has a living former spouse or civil partner;
a requirement relating to circumstances in which a marriage or civil partnership came to an end;
a requirement related to sexual