Q: What are the protected characteristics under the new discrimination law?
A: The protected characteristics remain the same. Whether or not each of these will be subject to change under the new legislation, is set out below:
- Age- no change
- Disability - new definition and changes
- Gender Reassignment - new definition
- Marriage and Civil Partnership - no change
- Pregnancy and Maternity - no change
- Race - no change
- Religion or Belief - no change
- Sex - no change
- Sexual Orientation - no change .
Q: The new definition of discrimination was handled last month, how will the definition of gender reassignment change?
A: The new definition of gender reassignment will be rather wider than is currently in force. It will no longer be linked to medical supervision, which means that people who adopt a new gender but opt not to go through a surgical procedure will still be protected by discrimination legislation. This means that cross dressers will be protected by the Equality Act in the way that they currently are not.
Q: So what are the main changes to discrimination law?
A: One of the biggest changes, which was touched upon last month, is to the expansion of definitions that underpin the discrimination legislation and the ambit of those who can pursue such rights. They are as follows:
- Direct discrimination – this occurs when someone is treated less favourably than another person because of a protected characteristic they have or are thought to have (perceptive discrimination), or because they associate with someone who has a protected characteristic (associative discrimination).
- Associative discrimination – this already applies to race, religion or belief and sexual orientation, but is now extended to cover age, disability, gender reassignment and sex. This is direct discrimination against someone because they associate with another person who possesses a protected characteristic.
- Perceptive discrimination – this already applies to age, race, religion or belief and sexual orientation and is now extended to cover disability, gender reassignment and sex. This is direct discrimination against an individual because others think they possess a particular protected characteristic. It applies even if the person does not actually possess that characteristic.
- Indirect discrimination – this already applies to age, race, religion or belief, sex, sexual orientation and marriage and civil partnership but is now extended to cover disability and gender reassignment. Indirect discrimination can occur when you have a condition, rule, policy or even a practice in your company that applies to everyone but particularly disadvantages people who share a protected characteristic. Indirect discrimination can be justified if an employer can show that it acted reasonably in managing its business, in other words, that the measure is ‘a proportionate means of achieving a legitimate aim’. A legitimate aim might be any lawful decision made in running the business or organisation, but if there is a discriminatory effect, the sole aim of reducing costs is likely to be unlawful. Being proportionate really means being fair and reasonable.
- Harassment - harassment is “unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual”. Harassment applies to all protected characteristics except for pregnancy and maternity and marriage and civil partnership. Employees will now be able to complain of behaviour that they find offensive even if it is not directed at them, and the complainant need not possess the relevant characteristic themselves. Employees are also protected from harassment because of perception and association.
- Third party harassment - Already applies to sex. Now extended to cover age, disability, gender reassignment, race, religion or belief and sexual orientation. The Equality Act makes employers potentially liable for harassment of its employees by people (third parties) who are not employees of your company, such as customers or clients. The employer will only be liable when harassment has occurred on at least two previous occasions, it is aware that it has taken place, and has not taken reasonable steps to prevent it from happening again.
- Victimisation - Victimisation occurs when an employee is treated badly because they have made or supported a complaint or raised a grievance under the Equality Act; or because they are suspected of doing so. An employee is not protected from victimisation if they have maliciously made or supported an untrue complaint. There is no longer a need to compare treatment of a complainant with that of a person who has not made or supported a complaint under the Act.
Q: I keep hearing about positive action. What is this?
A: As with previous equality legislation, the Equality Act allows employers to take positive action if it thinks that employees or job applicants who share a particular protected characteristic suffer a disadvantage connected to that characteristic, or if their participation in an activity is disproportionately low. However, the government has now announced that this is one aspect of the Act which is under review. It therefore remains to be seen if it is implemented.
Q: Equal pay is also an issue that is often highlighted in the press. Does the Act deal with this?
A: The Equality Act retains the framework that was previously in place. This means that in most circumstances a challenge to pay inequality and other contractual terms and conditions still has to be made by comparison with a real person of the opposite sex in the same employment. However, a change in the Equality Act allows a claim of direct pay discrimination to be made, even if no real person comparator can be found. This means that a claimant who can show evidence that they would have received better remuneration from their employer if they were of a different sex may have a claim, even if there is no-one of the opposite sex doing equal work in the organisation. This would be a claim under sex discrimination.
Q: Are there any other pay-related measures?
A: The Act makes it unlawful for employers to prevent or restrict their employees from having a discussion to establish if differences in pay exist that relate to protected characteristics. It also makes terms of the contract of employment that require pay secrecy unenforceable because of these discussions. An employer can require their employees to keep pay rates confidential from some people outside the workplace, for example a competitor organisation.
Q: Is anything changing in terms of the tribunal’s powers?
A: Under previous legislation, an employment tribunal could make a recommendation that an employer must eliminate or reduce the effect on the claimant of any discrimination. The Act extends this power so that it will now be possible for a tribunal to make recommendations that an organisation takes steps to eliminate or reduce the effect of discrimination on other employees, not only on the claimant. For example, the tribunal might specify that an employer needs to train all staff about the organisation’s bullying and harassment policy. This power does not apply to equal pay cases.
Q: When will the provisions of the Act come into force?
A: The vast majority of the Act’s provisions came into force on 1 October 2010. These include provisions concerning:
- Protection against direct and indirect discrimination, harassment and victimisation in services and public functions; premises; work; education; associations; and transport.
- The changed definition of gender reassignment.
- Protection against perceived or associative discrimination.
- The application of the European definition of indirect discrimination to all protected characteristics.
- Making gender pay secrecy clauses unenforceable.
- The harmonisation of the thresholds to make reasonable adjustments for disabled persons.
- Preventing employers asking about disability or health before making a job offer (except in specific circumstances).
The government is still considering whether to implement the sections of the Act relating to dual discrimination, gender pay gap information and positive action in recruitment and promotion .