Equality Act 2010

On 1 October 2010 the Equality Act 2010 came into force.

The Act is mainly a harmonising piece of legislation which brought several anti-discriminiation acts under one roof. However, there are some changes which will be brought about by virtue of the new Act as follows:

The Act will:

• Harmonise the definition of direct discrimination to cover “associative” and “perceptive” cases and replace the phrase “on grounds of” with “because of”.
• Harmonise the definition of indirect discrimination across all protected characteristics.
• Harmonise the concept of justification in discrimination cases, as a “proportionate means of achieving a legitimate aim”.
• Remove the requirement for a comparator in victimisation cases.
• Harmonise the definition of harassment to cover “associative” and “perceptive” cases and make employers explicitly liable, in some circumstances, for harassment by third parties in the workplace.
• Make specific provision for claims of combined discrimination, based on a combination of no more than two protected characteristics. This will not come into force until April 2011 at the earliest.

• Provide for positive action to be extended to allow employers to recruit or promote someone from an under-represented group, but only where they have a choice between two or more equally-suitable candidates. However, this will not be brought into force on 1 October 2010.

Disability

• Recast the concept of disability-related discrimination to eliminate the effect of the House of Lords’ decision in London Borough of Lewisham v Malcolm [2008] IRLR 700, and introduce indirect disability discrimination.
• Prohibit employers’ pre-employment health enquiries unless they are made for prescribed reasons.

Equal pay and contract terms

• Introduce explicit provisions on indirect discrimination in equal pay cases.
• Provide for the possibility of direct sex discrimination claims in respect of pay based on hypothetical comparators.
• Limit the enforceability of contractual “pay secrecy” clauses.
• Introduce a power to require large employers to report on their gender pay gap.

Race

• Introduce a power for the government to provide specifically that the definition of “race” includes “caste”.

Gender reassignment

Remove the requirement that individuals be under medical supervision to be protected by the gender reassignment provisions, and extend protection from indirect discrimination to transsexuals.

Enforcement

Strengthen enforcement by enabling tribunals to make recommendations that benefit the wider workforce, not just the claimant.