All Equal in the Eyes of the Law – Employment Law
An Overview of how the Equality Act 2010 Affects
The Equality Act 2010, one of the last pieces of legislation enacted by Gordon Brown’s outgoing Labour government, is an ambitious work that brings into harmony all of the previous Acts and ideology regarding the equality of all people under the same legislative roof.
An important point to note before I delve into the details of the Act and how it affects both employers and employees is that the Equality Act is a hulking, broadly encompassing piece of legislation, comprising of 218 sections and 28 schedules. Therefore, in order to provide you, dear reader, with the most information possible, I will be treating this first post as a general overview of the legislation, outlining its main principles and key changes that affect both workers and their managers. Over the coming months I will talk about topics such as age, religion and sexual orientation in further depth, in separate articles.
The Spirit of the Equality Act
The overriding spirit of the Equality Act is to make it illegal to discriminate, either deliberately or indirectly, against any person for one of nine characteristics protected under the Act. Those nine characteristics are:
- Gender Reassignment
- Marriage and Civil Partnership
- Pregnancy and Maternity
- Religion or Belief
- Sexual Orientation
One of the key changes that the Act introduced was to make it illegal to discriminate against someone by perception and association. Let me give you an example of both of these terms, as they apply in the context of employment law:
If an individual dresses or acts in a certain way and as a result, an employer perceives that they have one of the nine protected characteristics and discriminates against them, they have committed an illegality under the Act, whether or not the other person was what the employer perceived them to be.
Let me put it this way. Say an employee started wearing glasses for purely aesthetic reasons and their employer, perceiving that the employee had sight impairment and passed them over for a promotion that they were clearly the best candidate for. The employee can bring an action against the employer for discrimination even though they did not actually possess a disability relating to their sight. The fact that the employer perceived a protected characteristic was present and then discriminated against it is enough. The characteristic does not have to be present for discrimination to occur.
An employer may not discriminate against an employee because they are associated with someone who has a protected characteristic. For example, if a worker is married to someone of a different race or religion it is illegal to discriminate against them because of that fact.
Compliance with the Act When Advertising and Interviewing for a Position
Section 39 of the Equality Act, in theory, resolves previous inconsistencies in the law surrounding the advertising of positions and discrimination. Prior to the 2008 the Employment Appeals Tribunal decision of Cardiff Women’s Aid v Hartup  supplied the precedent that advertisements could only be seen as an intention to discriminate, not as discriminatory in their own right. In 2008 the European Court of Justice (as it often does), threw a cat amongst the (UK) precedent pigeons, when it decided in the case of Centrum voor Gelijkheid van Kansen en voor Racismebestrijding v Firma Feryn NV, a company stating publicly to the Belgian media that it would not employ people of Moroccan origin, was direct discrimination because the statement would deter Moroccan people from applying for positions within the company because they knew in advance that they would not be considered for the role. This decision indicated that advertisements containing discriminatory content may be seen in the same context.
Although in practice the law is still rather fuzzy, The Equality and Human Rights Commission (EHRC) Code suggests that the content contained in a job advertisement can amount to discriminatory behaviour and the Commission themselves can take action against anyone who publishes a discriminatory advertisement.
There are particular rules surrounding when a potential employer can or cannot ask an applicant about their health during the interview process.
The Equality Act states that until an applicant has been offered the position, an employer cannot ask any questions relating to health and disability during the application process except in the following circumstances:
- To ask the applicant to take part in an assessment to determine whether they are suitable to take on the positions requirements.
- To find out if any adjustments need to be made for the applicant to take part in a assessment to determine their suitability for the position.
- To assess whether the applicant can undertake tasks that are an intrinsic part of the position being applied for.
- To keep a record of the diversity amongst people applying for the position.
- To support “positive action” in favour of disabled people.
- If the position requires the successful applicant to have a disability.
- In the interests of national security.
It is unlawful for an employer to directly discriminate against an applicant solely on the account of his or her disability. If, at the end of the application process, a person is offered a position and the employer then discovers that they have a disability which in no way affects their ability to perform the job, then they cannot refuse to hire them on the basis of that disability.
Section 77 of the Equalities Act makes ‘pay secrecy’ clauses within an employment contract unenforceable if the discussion between employees was regarding equal pay. For example, both Sally and Edward are accountants. They have the same qualifications, experience and hold the same position within the firm. If Sally discovers through a conversation with Edward that she is being paid less than him, then she may have grounds to make a claim for discrimination and no action could be taken by the employer against Sally or Edward for discussing their salaries, even if there is a non-disclosure clause within their employment contracts.
Preventing Discrimination – An Employers Responsibility
An employee is responsible for preventing direct and indirect discrimination of an employee due to one of the nine protected characteristics.
For example, John is married to Kate, who, as a strict observer of the Christian faith, does not work on Sundays. Mary, John’s boss is aware of this and therefore overlooks John for a promotion because she perceives he will not accept it because the new role involves weekend shifts. Mary has committed an unlawful act by discriminating against John because of his association with Kate (whose religion is a protected characteristic). Whether or not John shares his wife’s beliefs is immaterial to the matter, it is unlawful for Mary to discriminate any employee on the grounds of religious preferences.
Along with discrimination it is also unlawful to harass employees on the grounds of one of the nine protected characteristics. Employers have an obligation under the Equality Act to prevent harassment which can take on many forms but commonly include:
- Unwelcome sexual advances
- Spreading malicious rumours about an individual or insulting a person on the grounds of them possessing one of the nine protected characteristics
- Excluding an individual from important meetings and denying them access to knowledge
- Shouting, ridiculing or publicly humiliating an employee on a regular basis
- Setting an employee up to fail by overloading them with work or constantly putting them down in order to destroy their self-esteem
- Threats of physical violence and/or unwarranted threats with regards to job security
Have you experienced discrimination or harassment in the workplace? Do you, as an employer or HR manager have any pointers on how to best comply with the Equalities Act 2010 that you fell may help others? If so please feel free to comment in comments section below.
Leave a Reply