The Equality Act 2010 successfully has completed its passage through Parliament and received Royal Assent. Most of its provisions are currently scheduled to come into force in October 2010.
The Act, which comprises 218 sections and 28 schedules, totally overhauls the architecture of UK anti-discrimination law. It will replace at least nine major pieces of legislation – including the Equal Pay Act 1970, Sex Discrimination Act 1975, Race Relations Act 1976 and the Age, Sexual Orientation and Religion or Belief Regulations.
Whilst the Act mainly consolidates, harmonises and simplifies existing discrimination laws, there are some notable innovations too. However, which of the new provisions are implemented will depend largely on the outcome of the forthcoming general election.
Some of the changes to existing legislation are highly significant, for example:
Disability discrimination. The Act radically reformulates the current tests for establishing discrimination under the Disability Discrimination Act 1995, including the introduction of indirect disability discrimination.
Associative and perceived discrimination. The way the Act is drafted makes clear that it prohibits direct discrimination or harassment based on an incorrect perception of a person’s disability, age or sex, or based on an association with someone of a particular disability, age or sex. (Perceived and associative discrimination based on race, religion/belief or sexual orientation are already unlawful.)
Harassment. Existing provisions in the Sex Discrimination Act on employer liability for harassment by third parties are extended to all the other protected characteristics covered by the harassment provisions.
Employment tribunals’ enforcement powers. The Act provides a broader power for employment tribunals to make recommendations in discrimination cases, covering the employer’s workforce as a whole and not just the individual who brought the claim.
The Act’s novel reforms and initiatives include:
‘Combined’ discrimination. The Act will extend to ‘combined’ or ‘dual’ discrimination based on separate protected grounds – for example, a black woman who is treated less favourably not solely because she is black or female but because she combines those characteristics. Claimants will only be able to rely on any two protected characteristics under this provision.
Pay transparency. The Act contains provisions requiring employers with 250 or more employees to report on their gender pay gap. (The Government has committed not to use this before 2013 and only if sufficient progress on reporting has not been made in the meantime.) Separately, ‘secrecy clauses’ in contracts of employment preventing employees from discussing their salary will be made unenforceable.
Positive discrimination. The Act will allow employers to discriminate in recruitment and promotion, to a limited extent, in favour of members of an under-represented group. It is effectively a ‘tie-break’ provision that can be used where there are two or more equally qualified candidates for a role or promotion.
Public sector equality duty. Public bodies already have duties to consider how their provision of services, spending decisions and employment practices affect people according to their race, gender or disability. These will be replaced by a broader, single equality duty extending to age, religion or belief and sexual orientation, as well as pregnancy and maternity and gender reassignment.
‘Socio-economic’ inequality. The Act will also place public authorities under a duty, when making strategic decisions, to consider how to “reduce the inequalities of outcome which result from socio-economic disadvantage”. It is not intended that this duty will affect front-line decisions about individuals or create any individual rights to challenge discrimination on grounds of social class.