Equality law update

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Coodes Solicitors’ head of employment, Emma Bramley, explains how changes in the Equality Act will affect businesses

After receiving Royal Assent in the Queen’s Speech on April 8, 2010, the Equality Act will come into effect on October 1 this year. The main changes to be introduced from an employment law perspective are as follows.

Defining discrimination

The Act will harmonise the definition of direct discrimination to cover “associative” and “perceptive” cases, replacing the phrase “on grounds of” with “because of”.

  • Harmonise the definition of indirect discrimination across all protected characteristics.
  • Harmonise the concept of justification in discrimination cases, as a “proportionate means of achieving a legitimate aim”.
  • Remove the requirement for a comparator in victimisation cases.
  • Harmonise the definition of harassment and make employers explicitly liable, in some circumstances, for harassment by third parties.
  • Make specific provision for claims of combined discrimination.

Discriminating lawfully

The Act will introduce an “occupational requirement” (OR) defence across all protected characteristics, and remove the job-specific “genuine occupational qualifications” (GOQs) in sex, gender reassignment and race cases.

  • Extend the concept of positive action to allow employers to recruit or promote someone from an under-represented group, but only where they have a choice between two or more equally suitable candidates.

Disability

The Act will recast the concept of disability related discrimination and introduce indirect disability discrimination.

  • Outlaw employers’ pre-employment health enquiries unless they are made for prescribed reasons.

Equal pay and contract terms

The Act will introduce explicit provisions on indirect discrimination in equal pay cases.

  • Limit the enforceability of contractual “pay secrecy” clauses.
  • Introduce a power to require large employers to report on their gender pay gap.

Race

The Act will introduce a power for the government to provide specifically that the definition of “race” includes “caste”.

Gender reassignment

The Act will remove the requirement that individuals be under medical supervision to be protected by the gender reassignment provisions, and extend protection for transsexuals.

Enforcement

The Act will enable tribunals to make recommendations that benefit the wider workforce.

Public sector duties

The Act will place a new duty on certain public authorities to consider “socioeconomic disadvantage” when taking strategic decisions about how to exercise their functions.

  • Replace the public sector race, gender and disability equality duties with a unified duty covering all strands, based on the current “due regard” principle.

Next steps

Before the Election, the Labour government announced its intention to bring most of the main provisions of the Equality Act into force in October, with the combined discrimination provision to follow in April 2011. It also said that the private sector gender pay reporting provision would take effect in 2013.

The new coalition government did not specifically mention the Act in The Coalition: our programme for government. However, the Government Equalities Office has announced that the majority will take effect on October 1, as originally planned.

Throughout October and November, Coodes will be hosting a series of Employment Law Update Workshops to talk about the Equality Bill.

www.coodes.co.uk