By: Kate Dodsworth

Date: 21st May 2010

Background

As you may know, the current UK Law dealing with discrimination is spread across dozens of Acts, Regulations and other legislation, some spanning as far back as the early 1970’s.  Following numerous reviews over the past few years, the Government introduced the Equality Bill in an attempt to harmonize existing discrimination legislation and to bring it all together under one Act: the Equality Act 2010 (“the Act”).  Most of the main provisions for the Act will come into force in October 2010 and although there is then a separate timetable bringing other provisions under the Act into force up to 2013, this mostly affects the public sector.  Therefore, employers should be aware that most of the provisions affecting the business will be applicable from October 2010.

The key feature of the Act is to bring together existing discrimination legislation, concerning sex, race, disability, sexual orientation, religion or belief and age with a view to adopting a single approach to deal with discrimination on any of these particular grounds.  Once the Act has come into force, the existing discrimination legislation will be repealed.

Although this note covers the employment aspect of the Act, the Act also covers the provision of goods and services and, for example, introduced a ban on age discrimination in the provision of goods, facilities, services and public functions from 2012.

Protected Characteristics

The new Act hopes to address discrimination concerning specific “protected characteristics”.  These are as follows:
·    age
·    disability
·    gender reassignment
·    marriage and civil partnership
·    pregnancy and maternity
·    race
·    religion or belief
·    sex
·    sexual orientation.

Therefore, the Act does not introduce any new categories of discrimination, but merely brings together existing protected categories. 

Direct Discrimination

You may be familiar with the concept of the direct discrimination.  The current definition is that in order to prove direct discrimination, an employee has to show that he or she has been treated less favourably than a real or hypothetical comparator on the grounds of a particular characteristic.  For example, to prove direct sex discrimination, a female employee would have to show that she had been treated less favourably than a real or hypothetical male comparator, on the grounds of her sex.

This definition changes in the new Act.  From October 2010, an employee proving direct discrimination, will have to show that the less favourable treatment was not on the grounds of a particular characteristic, but rather because of a particular characteristic.    Therefore, to use the example above, the employee would have to show that she was treated less favourably because of sex rather than on the grounds of her sex.  

Although at first reading, this appears only to be a change in terminology, this actually increases the scope of the protection given to employees.  This includes confirming that protection will be given to employees who experience “associative discrimination”. 

You may be familiar with recent case law concerning disability discrimination, where employers have been found to have discriminated against their employees, not because they have treated them less favourably because the employee himself is disabled, but because the employee is associated with someone else who is disabled. This is associative discrimination. The most well know case in this area concerns an employee who was treated less favourably because she took time off work to care for her disabled son.  Although she herself was not disabled, the tribunal found that she had been discriminated against on the grounds of disability although this was her son’s disability and not her own.  By amending the definition to “because of a protected characteristic” rather than “on the grounds of the employees protected characteristic”, associative discrimination is incorporated into the new Act.

Therefore, employers should be aware that the concept of associative discrimination would stretch across all of the protected characteristics.  Although this area is largely untested and we will have to wait for case law to see how the changes will take effect in practice, you should be aware of associative discrimination and keep and eye on how it may arise in the workplace.  For example, if employee A ‘teases’ employee B because employee B’s partner is a transsexual, for example, employee B may have a claim for associative discrimination because of gender reassignment.  To take another example, if employee C decides not to give a job to candidate A because candidate A has an elderly mother to care for and employee C is concerned about the effects of this on candidate A’s reliability, potentially there is a claim for associative discrimination because of age.

One exception to associative discrimination is that employers are still permitted to award differing childcare benefits to employees based on the age of their children.  It is acceptable to provide childcare for employees’ children based on the age of the child, e.g. up to the age of 16, without risking employees with children over 16 bringing a claim for associative age discrimination.

Another change that widening the definition brings in is to confirm that “perceptive discrimination” will now apply across all strands apart from marital/civil partnership status. This occurs when an individual is discriminated against because it is perceived that he or she has a particular protected characteristic.  For example, if an employee is ridiculed by his colleagues because they think he is gay, even though he is not, potentially this is perceptive discrimination.

Indirect Discrimination

You may be familiar with the concept of indirect discrimination which exists at the moment.  Broadly speaking, this is where an employer discriminates against an employee or a group of employees by applying a provision, criterion or practice which has the effect of treating the employee or employees less favourably due to a particular characteristic of the employee or employees.  A simple example is where an employer restricts entry to a company pension scheme to full time employees only.  Classically, women are more likely to work part time than men and therefore any provision which treats part time employees less favourably than full time employees is potentially indirectly discriminatory against women, as more women then men are more likely to work part time and therefore more men than women are likely to benefit from being allowed to access the pension scheme.

At the moment, the definition of indirect discrimination differs slightly depending on what sort of discrimination is in question.

The new Act adopts one standard definition of indirect discrimination which will apply to all the different strands of discrimination.  Pregnancy and maternity will continue to be dealt with as indirect sex discrimination.  The new definition of indirect discrimination will cover disability and gender reassignment, which are not covered by the concept of indirect discrimination at the moment.

The new definition of indirect discrimination is as follows:

(1)    A person (A) discriminates against another (B) if (A) applies to (B) a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of (B)’s.

(2)    For the purposes of sub-clause (1), a provision, criterion or practice is discriminatory in relation to a relevant protective characteristic of (B)’s if –

a.    (A) applies, or would apply, it to persons with whom (B) does not share the characteristic;

b.    it puts, or would put persons with whom (B) shares the characteristics at a particular disadvantage when compared with persons with whom (B) does not share it;

c.    it puts, or would put (B) at that disadvantage and;

d.    (A) cannot show it to be a proportionate means of achieving a legitimate aim.

You will see that indirect discrimination is potentially justifiable where an employer can show that a particular provision, criterion or practice is a proportionate means of achieving a legitimate aim. This test exists at the moment for some forms of discrimination.  A well known example of this is where a law firm were accused of age discrimination by requiring Partners to retire on reaching a specific age.  This was held to be a proportionate means of achieving a legitimate aim, as the law firm could show that it needed to retire older Partners to make way for new Partners and that younger Partners may well leave and go elsewhere if they thought that the prospects of them moving up through the hierarchy were hampered by the older partners.

In practice, this amendment should not present any particular changes for employers and merely ‘tidies up’ the definition.

Victimisation and Harassment

At the moment, if an employee wants to make a victimisation claim, he or she has to show that they have been treated less favourably than a comparator, i.e. that somebody else in the same position has not been victimised and that the reason for the victimisation is that the employee who has been victimised has been treated in this way because of a “protected act”.  For example, the reason for the victimisation could be that the employee has brought proceedings against the employer for discrimination.  The new Act removes the requirement for a comparator and therefore all the employee would need to show is that he or she personally has been victimised and that the reason was that the employee has done or intends to do a protected act.  However, in practice this is unlikely to make any significant difference as by showing that the employee has been victimised, the Tribunal would have to consider how other people are treated anyway and therefore this is likely to be a mere technicality.

One significant change in respect of harassment is that protection from harassment now extends to all of the protected characteristics with the exception of maternity and pregnancy (which will fall under the category of sex) and marriage or civil partnership.  There is no protection from harassment on the grounds of marriage or civil partnership given.

At the moment, employers are liable in certain circumstances for failing to prevent repeated harassment of employees by third parties under the Sex Discrimination Act.  For example, if an employer knows that an employee has been repeatedly sexually harassed by a supplier or client, that employer is liable if it does nothing to prevent such harassment happening again.  The new Act extends this protection to employees who suffer harassment because of other protected characteristics such as age or race by the same sorts of third parties.

The Act also extends the definition of harassment from “unwanted conduct on the grounds of a protected characteristic” to “unwanted conduct related to a relevant protected characteristic”.  This has the effect of extending the definition of harassment to include harassment based on perception and association.  For example, therefore, if a person is harassed because of their child’s disability, then they are protected.  Also, if a person is harassed because they are wrongly perceived to be a particular nationality, for example, then they are also protected.

Instructing and Causing Discrimination

At the moment, it is unlawful for a person to instruct or induce someone to discriminate against, harass or victimise another person, or attempt to instruct or induce someone to do so, because of a certain characteristic.  Currently, this extends to sex, race and disability only.  A similar protection applies to age discrimination too, but only with regard to instructions.  Famous cases in this area include a white employee of a car hire business who was instructed by her manager not to allow Asian people to hire cars and a doorman instructed not to let black people into an amusement arcade.

The new law harmonies this area and extends the protection to all protected characteristics.  It also widens the definition to cover instructing, including and/or causing someone to discriminate against another person.  The Government have also been careful to include a separate course of action where the individual who has been instructed to carry out the discrimination has been subjected to a detriment as a result of the conduct of the person giving the instructions, even if the instructions were not carried out.  For example, B is a bouncer and A is a nightclub owner.  A instructs B not to allow black people to gain entry to the club.  B refuses to carry out the instruction and allows black people in to the club.  A dismisses B.  B can now bring a claim for race discrimination against A.

Whilst it is unlikely that many employers would instruct employees to discriminate against others, it is important to be aware of the new extended definition and, in particular, the possibility of being found to have caused such discrimination.  This area of the law is currently untested and it will be interesting to see how widely it is interpreted.  You should also be aware that the concept now applies to all strands of discrimination and therefore, for example, employers should ensure that no culture exists where employees are expected to treat disabled people less well than anyone else.

Occupational Requirements

The current law on race, religion or belief, age and sexual orientation enables employers to stipulate that because of the nature of the job in question, only people with a particular characteristic are eligible to carry it out.  This is known as the Genuine Occupational Requirement  (“GOR”) Defence.    In relation to sex, gender reassignment and nationality, this is known as a Genuine Occupational Qualification (“GOQ”) rather than a GOR, but in fact it is the same thing.  The textbook example is that it is permissible to require actors playing the role of Hamlet to be men and to turn down a woman for the part on the basis that it is a GOQ for the role that the actor must be male.  Currently, there is no GOR or GOQ defence for disability discrimination.

Under the new Act, the GOR Defence still applies, although the word “Genuine” has been dropped, as it really is surplus to requirements.  It also extends to all types of discrimination, including disability.  However, employers would have to show that reliance on an occupational requirement is a proportional means of achieving a legitimate aim in the same way as this test is used to justify indirect discrimination.  Whilst it may be that most employers do not have any specific roles which have this sort of requirement, it may be useful to bear in mind for the future.

Other Defences Under The Current Law

It will still be lawful to rely on certain defences for discrimination that you may use at the moment.  For example, although potentially it is discriminatory to allow certain benefits to employees based on length of service, it will still be lawful to provide these sorts of benefits up to five years’ service.  The compulsory retirement age will still be in force (although it may not be for much longer) and it will still be acceptable to adjust redundancy on the grounds of age and length of service. 

Vicarious Liability

You may be familiar with the concept of vicarious liability.  This is where things done by an employee in the course of their employment are treated as if they had been done by the employer.  For example, where employee D sexually harasses employee E at work, the employer is liable for employee D’s conduct.  At the moment, employers have a defence to vicarious liability if they can show that they took “such steps as were reasonably practicable” to prevent the discriminatory act.

The new Act changes this definition slightly and although there is still a defence for employers in these sorts of situations, the employer must now show that it has taken “all reasonable steps” to prevent the discriminatory act.  On the face of it, therefore, this appears to be a higher test for employers to fulfil.

Positive Action

This is a real change brought in by the Equality Act.  The thinking behind the introduction of the concept of positive action is that some inequalities are so entrenched in our society that any progress made by merely prohibiting discrimination is not sufficient to address the underlying inequalities and therefore in some circumstances it may be permissible to treat individuals with a particular protected characteristic more favourably than those without this characteristic.  In theory, this may mean that when you come to recruit for a new position, if two candidates are found to be “equally qualified” for a particular post, then you should appoint the candidate with a protected characteristic (for example the black candidate or the female candidate) over the candidate without this characteristic.  In practice, this may be a difficult area to implement and at present, no guidance has been issued in respect of positive action.  Therefore, it is very much a question of watching this space and taking advice as and when the time comes.

Equal Pay

In spite of a general consensus that this area is in need of reform, the effects of the Act on equal pay claims are likely to be minimal. One slight change is in respect of the comparator to use when claiming that a woman, for example, has been paid less than a man.  At the moment, claimants pursuing equal pay claims have to show that they have been paid less than an actual comparator carrying out either the same work or like work or work of equal value.  This does not enable claimants to pursue this sort of claim if there is no actual person to compare themselves with.  This leaves employees in a situation, therefore, where potentially an employer could “get away with” saying to a woman “I would pay you more if you were a man” if there is no actual man who is actually paid more.  The ability to use a hypothetical comparator is therefore introduced by the Act.  However, under the new Act, in this sort of situation the employee could also potentially bring a claim of direct discrimination rather than an equal pay claim.

There is also a change to the defence available to employers defending equal pay claims.  At the moment, an employer can defeat an equal pay claim by showing that a difference in pay is down to a “genuine material factor” which is not sex and which differentiates a claimant and a comparator and entitles the employer to pay the comparator more.  Such a factor could be that the comparator is better qualified than the claimant, for example.

This defence will change to the “material factor” defence; the word ‘genuine’ has been dropped as superfluous.  However, a new limb is added to the defence.  The defence can only succeed if the material factor relied upon does not put one sex at a disproportionate disadvantage.  If such a disadvantage does exist, it will have to be objectively justified as a proportionate means of achieving a legitimate aim.  For example, if the difference in pay exists because the man paid more than the woman is more experienced than her, if it is more difficult for women to achieve this level of experience than men because they are more likely to take time out from work due to childcare responsibilities, the employer would have to show it was justified to reward such experience by paying the man more.

Equal pay is a complicated area of the law, which is also highly contentious.  As far as day to day practices go, this amendment to the material factor defence should not have an effect on most businesses. However, you should ensure that wherever possible no differences in pay for male and female employees carrying out the same or similar roles exist.

Transparency

Following on from issues caused by the large number of equal pay claims in the Employment Tribunal, the Act contains a new power prohibiting secrecy clauses preventing employees from discussing their pay with their colleagues.  This only extends to such discussions which relate to a connection between pay and to having (or not having) a particular characteristic.  Therefore, secrecy clauses as a whole are potentially acceptable, but such clauses would be unenforceable if employees can show that the discussions they have had are related to a particular protected characteristic.  For example, potentially it is possible to enforce a secrecy clause against an employee who discusses his pay generally with his colleagues.  However, if he discusses his pay with his colleagues in the context of any connection between his pay and his disability, for example, then such a clause would be unenforceable.

In practice, it seems that this is going to be very difficult to enforce.  Therefore, the common sense approach may be to remove secrecy clauses from any contracts going forward altogether.

Reporting on Protected Characteristics

This is an entirely new provision.  The Act contains the power for the Government to require large employers (those with more than 250 employees) to publish information about their employees’ pay in the context of those employees’ genders.   This would potentially expose any gaps which exist within an employer in respect of the pay earned by male employees as opposed to female employees. From October 2010, there will be a voluntary regime inviting employees to publish this information including the difference between hourly rates paid to men and women, the difference between average basic pay and total average earnings of men and women by grade and job and the difference between starting salaries for men and women.  If the Government feels that not enough progress has been made under this voluntary regime, then the power to require large employers to publish this sort of information will come into force in 2013.  However, depending on the approach taken by the new coalition government, it may be that such a power never comes into force.

Pregnancy and Maternity and Race

Minor drafting amendments have been made to provisions regarding the definition of race and the definition of less favourable treatment when applied to pregnant women.  This should not have any particular affect on most employers, other than making the new Act more straightforward and the drafting easier to understand.

Gender Reassignment

The current definition of gender reassignment means that the protection given to such people will only kick in when the person undergoing gender reassignment is under medical supervision.  The Act removes this requirement and therefore protection will extend to anyone undergoing such change but not under medical supervision.  Therefore, potentially, this could mean that the protection now extends to someone who has begun to “live” in a different gender such as by changing their clothes or appearance but who has not yet sought any medical intervention.

It will be interesting to see how workable this is in the future.

Recommendations by Employment Tribunals

At the moment, if a discrimination claim is successful against an employer, in certain circumstances the Employment Tribunal has the power to make a recommendation regarding steps the Respondent could take to reduce the adverse effect of the discrimination on the employee.  The Act extends this power to allow Tribunals to make recommendations for the benefit of the workforce as a whole.  Therefore, potentially, this will give the Employment Tribunal the power to recommend that an employer takes specific steps to ensure that other employees are not treated in the same way in the future.  Again, it will be interesting to see how workable this turns out to be.

Dual Discrimination

This is an entirely new concept introduced by the Act and this will not come into force until April 2011. 

This enables claims to be brought in relation to less favourable treatment on the basis of a combination of any of the following protected characteristics;

·    age
·    disability
·    gender reassignment
·    race
·    religion or belief
·    sex
·    sexual orientation.

Pregnancy and maternity and discrimination on the basis of marriage or civil partnership is specifically excluded.

This applies to direct discrimination only.  The concepts of dual discrimination will apply where an employer discriminates against an employee on the basis of a combination of two protected characteristics that the employee has.  For example, dual discrimination would come into play where an older woman applies for a promotion and she is turned down on the basis that the employer did not consider it suitable to promote an older woman.  For example, the employer may say that the job is a physical job and as an older woman they did not think that she would have the strength to carry out the job.  If the reality of the situation is that the woman would have been appointed had she been an older man or a younger woman and therefore in the opinion of the employer likely to have the required level of strength, then it would be possible for her to bring a claim of dual discrimination.

I suspect that these sorts of claims may be brought in addition to single strand discrimination claims.  For example, in these circumstances, I would expect a claimant to pursue a claim of sex discrimination and a claim of age discrimination and “to throw in” a claim of dual discrimination on the basis that if there is not enough evidence for her to succeed under either one or both of the single claims, she may succeed with a claim of dual discrimination.  It would be interesting to see how workable these provisions will be and also to see the interplay between these sorts of claims and single strand claims.

Summary

In conclusion, therefore, most of the provisions of the Act merely restate what the law already says and the purpose of the Act is to bring all of the existing law together under one umbrella.  Whilst the Act may not bring about any major changes for many businesses on a day-to-day basis, many definitions have changed and widened, and therefore it may mean a total overhaul of the existing policies and procedures.  Many of the changes will need to be tested out by the Courts and Tribunals before it is exactly clear what is meant and therefore it is best to continue to take specific advice on specific situations as and when needed to ensure that your practices and procedures continue to comply with what we expect to be an increasingly changeable area of the law.

Guidance

The Government will publish specific Guidance on the implementation of the Act in July 2010. We expect that this should provide example of how the Act will work in practice and also guidance on how to avoid breaches any of its provisions. Although the Guidance will not be legally binding, it is useful to refer to the Guidance, as it often clarifies the thinking behind specific provisions. Draft Guidance is available, however, and Ashton KCJ can provide you with a copy.

Legal Timetable

July 2010               Government guidance on the Equality Act published
October 2010         Main provisions of the Act come into force
October 2010         Voluntary regime for large private sector employers to report on employees’ pay comes into force
April 2011              Concept of dual discrimination comes into force
April 2011              Compulsory regime for public sector employers to report on employees’ pay comes into force 
April 2010              Increased protection from age discrimination in the provision of goods, facilities, services and public functions
2013                     Compulsory regime for private sector employers to report on employees’ pay comes into force (if this is implemented)

For further information please call 0800 587 0093.