Employment Law Update (August 2010)
Equality Act Tutorial
The Equality Act is set to come into force this October. The Act
will bring all equality laws together in one place, and will make
some significant changes to anti-discrimination and equality law in
the workplace.
To help you prepare, Mentor is preparing a series of factsheets
– or tutorials - on key changes introduced by the Equality
Act. These are intended as a very quick introduction to how
the new law will work.
In addition to these tutorials, Mentor will provide further
guidance and support, including any necessary changes to your
Guidance systems or Toolkits over the coming months. For the
latest information, log on to MentorLive.
Tutorial 1 – Something old; something
new…
Here we introduce the Equality Act by looking at some things
that remain the same under the new law, and some things that are
brand new and that employer need to know about.
Something old – some things that stay the same under the
Equality Act 2010
The Equality Act does not bring in any new grounds for
discrimination, so those that employers will be familiar with –
race, sex, disability, etc – remain in place. What the Act
does is to call these different grounds for discrimination
"protected characteristics".
The Equality Act offers protection to people with "protected
characteristics". The list of nine protected characteristics
simply covers all those characteristics covered by existing
non-discrimination law strands. The protected characteristics
are (in alphabetical order):
- Age;
- Disability;
- Gender reassignment;
- Marriage and civil partnership;
- Pregnancy and Maternity;
- Race;
- Religion or belief;
- Sex;
- Sexual orientation.
Note that gender reassignment, marriage, civil partnership,
pregnancy and maternity are currently protected under sex
discrimination law. The Equality Act does not add any
protected characteristics to those already defined by law, but
lists them in a different way.
Something new – two new types of unlawful discrimination
that you need to know about
Associative discrimination
Associative discrimination is discrimination against a person
because the person has an association with someone with a
particular protected characteristic (see above for the definition
of "protected characteristic").
An example of associative discrimination might be a non-disabled
employee who is discriminated against because of action she needs
to take to care for a disabled dependant.
Associative discrimination already applies to race, religion or
belief, and sexual orientation and is now to be extended to cover
age, disability, gender reassignment and sex discrimination.
How this might affect employers
- Managers involved in making recruitment or promotion decisions
and line managers involved in taking disciplinary action will need
to take care that they are not discriminating against a person
because he or she has care responsibilities, for example.
Combined discrimination
Combined discrimination is a new concept prohibited under the
Equality Act. It makes less favourable treatment because of a
combination of two protected characteristics unlawful. Note
that combined discrimination only relates to direct discrimination,
and does not apply to pregnancy, maternity, marriage or civil
partnership.
An example of combined discrimination would be the case of a
black woman who feels she is unfairly being denied promotion by her
employer. Her employer might be able to successfully defend a
claim of race discrimination, because black men are routinely
promoted, and might equally be able to defend a case of sex
discrimination, because white women are routinely promoted.
It is the combination of her characteristics that disadvantages the
black woman.
The Equality Act will allow an employee in this situation to
make a claim for unlawful discrimination.
How this might affect employers
- Employers will need to ensure that the make up of their
workforce, across all job grades, reflects the community in which
they operate. It is not so much about what policies are in
place – it is about the results that these policies achieve.