The Equality Act 2010

The majority of the provisions contained in the Equality Act 2010 came into force on 1 October 2010. It has brought together the different strands of discrimination law to adopt a consistent approach to tackling discrimination in the workplace.

Whilst the Equality Act has consolidated much of the pre-existing discrimination law, it has also taken the opportunity to make some key changes. Some of the changes made are as follows;

  • Asking employees pre-employment health questions, for example at interview, is now prohibited in certain circumstances.
  • Secrecy clauses on employees pay in contracts of employment may now be unenforceable in certain circumstances.
  • Employees are now able to bring claims of associative or perceived harassment. For example, if an employee cares for the elderly and is harassed because of this, they may bring a claim of associative harassment on the ground of age. Or if an employee is harassed because they are perceived to be gay, despite their actual sexual orientation, they may bring a claim of perceived harassment on the ground of sexual orientation.
  • If an employee is now successful with a discrimination claim at the Employment Tribunals, the Employment Tribunal now has the power to make recommendations to the employer to avoid other employees in the workplace suffering from discrimination.
  • From 6th April 2011, a further provision relating to positive action in recruitment and promotion was brought into force, which proved controversial. Under this change, employers can treat a person with a protected characteristic more favourably than others in recruitment or promotion, as long as the person with the relevant characteristic is “as qualified as” those others and the employer reasonably believes that persons with that particular protected characteristic are disadvantaged or disproportionately under-represented.

The Government is yet to provide a date for implementation on a proposed provision that employees are able to bring claims of combined discrimination against their employer based upon more than one “protected characteristic”, for example, a claim of sex and race discrimination. We will provide a further update on this proposed measure if or when it comes into force.

 Key points for Employers to consider

  • Have your Recruitment policies been updated to reflect the provisions of the Equality Act?
  • Do you send out pre-employment health questionnaires? If so, have you considered their content in light of the Equality Act?
  • Are you fully appraised on how to interview potential employees in light of the changes made by the Equality Act?
  • Has your Equality and Diversity policy been updated to reflect the provisions of the Equality Act?

Key points for Employees to consider

  • Are you aware of the circumstances in which you may not be questioned regarding your health by a potential employer during a recruitment process?
  • Have you recently been rejected following an application for a new job? Do you require advice as to whether the decision to reject you for that position was lawful under the Equality Act?
  • Are you disabled and currently considering new employment? Do you require guidance as to how the Equality Act protects you during a recruitment process?
  • Are you concerned that you may not be paid as much as a colleague in a similar role? Are you aware of your rights in those circumstances?
  • Do you think you are being treated less favourably by your employer than your colleagues? Do you require advice as to whether your employer’s conduct is lawful under the Equality Act?

For the most up to date and practical advice in this complex area of the law our specialist Employment Team of solicitors are available in order to advise you further.

Please contact Simon Brian, Sally Osborn or Ben McFeely in our Employment Department for further information on T 01226 210000.

Ben McFeely – Employment Department
MKB Solicitors LLP