The Equality Act came into force in October 2010 and replaces all previous equality legislation in England, Scotland and Wales – namely the Race Relations Act 1976, the Disability Discrimination Act 1995, the Sex Discrimination Act, the Equal Pay Act, the Employment Equality (Age) Regulations 2006, The Civil Partnership Act 2004, the Employment Equality Regulations 2003 (religions and belief and sexual orientation).
Northern Ireland is not covered by The Equality Act and has its own seperate Acts – see this article for more details.
Ready for the details? Here we go:
The Equality Act covers the same characteristics that are protected by existing equality legislation:
- Gender reassignment
- Race (during 2015 Caste will be added as a definition of Race – date tbc, although The Employment Appeal Tribunal has already confirmed caste is included within the meaning of ‘ethnic’ origins).
- Religion or belief
- Sexual orientation
- Marriage and civil partnership
- Pregnancy and maternity.
However, these groups will now be called ‘Protected Characteristics’ (PC’s).
The new Act also extends protections to some other characteristics and introduces other changes. This Act applies equally to employees, workers and many of those who are self-employed (only Freelancers who fall under Part 5 of the Equality Act 2010 are covered – that is those who are described as ‘contract workers’ and are contracted personally to do the work, i.e you cannot claim discrimination against your Employer if you are contracted for the provision of services and hire someone else, or sub-contract someone else, to do the work – you must do the work yourself personally). See our 2014 information about Limited Company Contractors and the Equality Act here.
Generally if a worker is working illegally (e.g. they do not have the right to work in the UK) then they do not have normal contractual and statutory employment rights (e.g. to unfair dismissal). They may however have discrimination rights in certain circumstances where an Employment Tribunal will consider the circumstances surrounding the claim and its nature and seriousness, the extent of the employee’s involvement in the illegality and the character of the claim. (see Wijesundera v Heathrow 3PL Logistics Ltd).
The Protected Characteristics
The Act protects people of all ages. However, different treatment because of age is not necessarily unlawful (direct or indirect) discrimination if Employers can justify it, i.e. they can demonstrate that it is a proportionate means of meeting a legitimate aim.
In 2015 in Osborne and another v Gondhia and others t/a Rubata Partnership, two young sisters who were subjected to aggressive and unfair criticism were found to be suffering from age discrimination. The 2 sisters had resigned from their jobs in a service station; they wre aged 18 and 21 and alleged they were “berated aggressively” over mistakes that were cause by another employee. The Tribunal felt they were “not treated with the respect they deserved as employees” and that the employer would not have treated an older employee in the same way. They were also successful in their sex discrimination claims after comments made to them by the owner including that cleaning is a “woman’s work”.
More details about Age Discrimination related to Retirement are here.
In March 2015, the Employment Appeal Tribunal heard the appeal in a test case against 5 police forces as to whether the rule requiring police offers to retire after 30 years’ service (to cut costs) is legal. The result is expected later this year.
Disability (the new Act introduces a new definition and other changes)
See our new article on Disability Discrimination here – what makes a person disabled under the Equality Act?
The Act has made it easier for a person to show that they are disabled and so protected under disability discrimination. Under the new Act, a person is disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities (which would include things like using a telephone, reading a book or using public transport). ‘Normal day to day activity’ was, in 2016, found by the Employment Appeal Tribunal to also include many skills and activities commonly required for work (you can read more details in our additional Disability article given above).
Previous legislation provided a list of capacities that must be impaired, that a person must have at least one of, to be classified as disabled under the act. These were mobility; manual dexterity; physical coordination; continence; ability to lift, carry or move everyday objects; speech, hearing or eyesight; memory or ability to concentrate, learn or understand; perception of the risk of physical danger. This list has now been removed.
As before, the Act puts a duty on Employers to make reasonable adjustments for staff to help them overcome disadvantage resulting from an impairment. Disabled people are no longer required themselves to establish that their treatment is less favourable than that experienced by a non-disabled employee.
The Act includes a new protection from discrimination arising from disability – namely that it is discrimination to treat a disabled person unfavourably because of something connected with their disability (e.g. a tendency to make spelling mistakes arising from dyslexia). This type of discrimination is unlawful where the employer or other person acting for the employer knows, or could reasonably be expected to know, that the person has a disability. This type of discrimination is only justifiable if an employer can show that it is a proportionate means of achieving a legitimate aim.
Additionally, indirect discrimination now covers disabled people.
The Act also includes a new provision which makes it unlawful, except in certain circumstances, for employers to ask about a candidate’s health before offering them work (see below).
Gender reassignment (The new Act introduces a new definition)
The Act provides protection for transsexual people. A transsexual person is someone who proposes to, starts or has completed a process to change his or her gender. The Act no longer requires a person to be under medical supervision to be protected – so a woman who decides to live permanently as a man but does not undergo any medical procedures would be covered.
Transgender people such as cross dressers, who are not transsexual because they do not intend to live permanently in the gender opposite to their birth sex, are not protected by the Act.
It is discrimination to treat transsexual people less favourably for being absent from work because they propose to undergo, are undergoing or have undergone gender reassignment than they would be treated if they were absent because they were ill or injured. Medical procedures for gender reassignment such as hormone treatment cannot be treated as a ‘lifestyle’ choice.
For the purposes of the Act ‘race’ includes colour, nationality and ethnic or national origins. A racial group can be made up of two or more different racial groups (eg Black Britons).
For information about discrimination relating to languages used at work see our new article here. It was confirmed in 2014 that immigration status does not equate to race. A Tribunal claimant claimed that immigration status and nationality are intimately asociated and that discrimination on the grounds of the former should be treated as discrimination on the grounds of the later – but the Court of Appeal rejected this argument.
Caste is now included in this definition, although the Equality Act has yet to be changed. In September 2015 an employment tribunal ruled that a woman had been discirminated against because of her caste and awarded her £184,000 for unpaid wages (Permila Tirkey v Chandok) – the case had been dismissed at a previous tribunal and subsequently went to the Employment Appeal Tribunal in January 2015, where it was sent back to Tribunal for re-consideration. The EAT had held that ethnic origin included caste. Tirkey had been made to work 18 hour days, 7 days a week, and paid just 11p per hour to be a domestic servant for the family in the UK.
In 2016 the Employment Appeal Tribunal considered the case of Kelly v Covance Laboratories Ltd, to see if the case of a Russian national who was told not to speak Russian at work was race discrimination. The facts of the case are interesting and complicated (so we won’t go into them here), but the EAT found that her she had not been discriminated against because it was not Ms Kelly’s race or national original that had made her line manager give her instructions not to speak Russian, but it was her behaviour, in the circumstances of her job, which was a reasonable ground for her manager’s concern that she was speaking Russian.
Religion and/or religious or philosophical belief
- In the Equality Act, religion includes any religion. It also includes a lack of religion, in other words employees or jobseekers are protected if they do not follow a certain religion or have no religion at all.
- A religion must have a clear structure and belief system. To be protected, a belief must satisfy various criteria, including that it is a weighty and substantial aspect of human life and behaviour.
- Discrimination because of religion or belief can occur even where both the discriminator and recipient are of the same religion or belief.
- See our Guide to Dress Codes at work here and more details are in our Guide to ‘what is Religious Discrimination‘ here.
- Employers should, for example, support Muslim staff during Ramadan when they are prohibited from consuming food and drink between the hours of sunrise and sunset for approximately 30 days. As many Muslims will carry on working during Ramadan, Employers need to be aware that their energy and concentration levels may fall. Employers should ensure the working environment does not put those observing Ramadan at a disadvantage or they are treated less favourably than other employees.
- In December 2013 the UK Supreme Court confirmed that Scientology is a religion and its services are an act of worship. The Supreme Court said that religion is an evolving concept and it is no longer the case that the term religion should be confined to “religions which recognise a supreme deity”.
- In March 2014 a Tribunal found that a belief in ‘democratic socialism’ constituted a philosophical belief (a belief based on a political philosophy). Other Tribunal have found the following beliefs capable of amounting to ‘philosophical beliefs’ – belief in the sanctity of life (anti fox-hunting); belief in the ‘higher purpose’ of public service broadcasting; a belief in spiritualism and life after death. But have found the following beliefs to not be ‘philosophical beliefs’ – marxist/trotskyist political beliefs. All of these decisions have been at Tribunal level only so are not binding, with the exception of the belief in spiritualism.
Both men and women are protected under the Act. In July 2014 the Equality and Human Rights Commission clarified to employers and recruiters that drawing up all-female shortlists is illegal.
In 2015 in the case of Van Heeswyk v One Call Insurance Services Ltd, the claimant won a sex discrimination case. The claimant requested parental leave to spend time with her ill daughter and her soldier husband when he returned from service in Afghanistan. The request was refused and shortly afterwards she was asked to attend a disciplinary hearing for ‘persistent absenteeism’ and ‘unsatisfactory standards or output of work’. She had an exemplary record and no previous warnings, and had taken absence while her daughter was in hospital. She was dismissed without notice for gross misconduct.
In April 2016, Acas launched a new guide to help employers and managers identify, tackle and prevent sex discrimination in the workplace. The new guidance, which you can see here, is aimed to help employers and managers get to grips with the laws around equality and to be aware of any behaviour that could be considered as sex discrimination.
The Act protects bisexual, gay, heterosexual and lesbian individuals. Stonewall produce a series of good practice guides for employers containing practical ways to implement working practices to ensure an inclusive workplace for lesbian, gay and bisexual staff which you can see here.
In Otomewo v Carphone Warehouse 2012, an Employment Tribunal found that the actions of employees who took their Manager’s iphone, without his permission, and updated his Facebook status to read “Finally came out of the closet. I am gay and proud” was harassment on the grounds of sexual orientation (see below for details about harassment). Even though the claimant was not gay, the Tribunal found he was harassed as the comments were displayed to friends and family in a public space andhe was embarrassed and distressed by the comments. The Tribunal also found that the actions by the employees were done at work, during working hours, and so the Employer was liable for their actions.
Marriage and civil partnership
The Act protects employees who are married or in a civil partnership against discrimination. Single people are not protected.
Pregnancy and maternity
A woman is protected against discrimination on the grounds of pregnancy and maternity during the period of her pregnancy and any statutory maternity leave to which she is entitled up to 6 months after the birth or while still breastfeeding. During this period, pregnancy and maternity discrimination cannot be treated as sex discrimination. For example, an Agency cannot refuse to place a worker, or a hirer refuse to accept a worker because she is pregnant, or terminate the placement. If you are an ‘Agency Worker’ please see our new Guide to the Agency Worker Regulations and what this will mean if you are pregnant.
Women are covered against pregnancy and maternity discrimination whether they are a job applicant, an employee, a worker or self-employed (and providing their service personally). And the provisions cover all parts of the employment relationship including recruitment, promotion, training and redundancy selection. And a dismissal that is due to an employee’s pregnancy or maternity leave will be automatically unfair.
Pregnancy discrimination also occurs where an employer treats an employee unfavourably because of an illness she has suffered as a result of her pregnancy (during the period from the beginning of the pregnancy until the end of her maternity leave). In a 2014 case of Lyons v DWP JobCentre Plus the Employment Appeal Tribunal confirmed that a dismissal arising out of absences for post-natal depression after maternity leave had come to an end, was not discrimination on pregnancy/maternity or sex grounds – this was because the unfavourable treatment did not occur during the ‘protected period’ and because there was no direct sex discrimination as the pregnancy-related illness extended beyond the period of maternity leave, meaning the employer was entitled to compare the period of sickness absence after maternity leave with a period of sickness of a man.
Employers must ensure that women on maternity leave are informed of any jobs that become available, including opportunities for promotion and transfer, and allow them to apply if they wish. Failure to do this may be unfavourable treatment and so discrimination.
In July 2016 in Nicholsdon v Hazel House Nursing Home Ltd, the employee who was pregnant asked her nursing home if she could switch shifts from the morning to the afternoon, which her employer agreed to do, but then reduced her shifts from 5 to 3 a week without consulting her. This meant she qualified for maternity allowance only not SMP. She put in a grievance which was rejected. She then resigned and later put in an appeal against the grievance decision but then did not respond to the request for further information and the appeal was not held. The case went to the Employment Appeal Tribunal who said she had been constructively unfairly dismissed and the reduction in shifts was pregnancy discrimination.
Types of discrimination
The Equality Act 2010 introduced the concept that the alleged discrimination should be “because of” the protected characteristic (before the alleged discrimination had to be “on the grounds of” the protected characteristic). A case that went to the Employment Appeals Tribunal in 2014 (about a police officer who was a dog handler and was pregnant and had one of her police dogs removed from her during pregnancy) discussed this meaning and the change in the wording, which the Government said in 2010 had not been intended to change the law in any way. The Metropolitan Police argued that the new meaning was narrower and there had to be a direct causal connection between the pregnancy and the decision. The EAT said that the detriment (the actual discrimination) does not have to be caused solely, or even mainly, by the discriminatory act; it was enough if it was a significant and material influence.
- Occurs when someone is treated less favourably than another person because of a protected characteristic.
- Existed previously for all protected characteristics and no change in the new legislation.
- In cases of Direct Discrimination the Court of Appeal confirmed in 2016 that is the motive of the actual person who made the decision that the claim is related to, not those that may have influenced the decision, that is important. (Canada Life CLFIS (UK) Ltd v Reynolds)
- Claimants of direct discrimination need to show they have been treated less favourably than an actual or hypotethical comparator.
- This is direct discrimination or harassment against someone because they associate with another person who possesses a protected characteristic (e.g. a mother of a disabled child; a heterosexual worker who socialises with gay friends; a non-Jewish employee with a Jewish partner, who is subected to inappropriate workplace “banter” about Jews). It does not currently apply to indirect discrimination; however in July 2015 the European Court of Justice confirmed that individuals can claim indirect discrimination by association in CHEZ Razpredelenie Bulgaria (in this case about the provision of services but it should apply equally to employment) – the original Race Directive protects not only people of a certain ethnicity from suffering less favourable treatment because of a discriminatory measure, but also those who are not of the same ethnic group who suffer alongside them.
- Applies to race, religion or belief, sexual orientation, age, disability, gender reassignment and sex.
- Does not apply to marriage/civil partnerships or pregnancy/maternity.
- In 2014 the Court of Appeal (in Hainsworth v Ministry of Defence) made it clear that the duty to make reasonable adjustments for disabled employees does not extend to employees who are associated with a disabled person.
- In July 2015 in Truman v Bibby Distribution Ltd an employer who suddently dismissed an employee who was performing satisfactorily, was found to have committed associative disability discrimination.
- This is direct discrimination against an individual because others think they possess a particular protected characteristic. It applies even if the person does not actually possess that characteristic.
- Already applies to age, race, religion or belief, sexual orientation,disability, gender reassignment and sex.
- Does not apply to marriage/civil partnerships or pregnancy/maternity.
- Indirect discrimination can occur when your Employer has a condition, rule, policy or a practice in the company that applies to everyone but which particularly disadvantages people who share a protected characteristic.
- Indirect discrimination can be justified if Employers can show they acted reasonably in managing their business.
- Applies to age, race, religion or belief, sex, sexual orientation and marriage, civil partnership, disability and gender reassignment.
- Does not apply to pregnancy/maternity.
- Harassment is “unwanted conduct related to a relevant protected characterstic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual” .
- Harassment applies to all protected characteristics except for pregnancy and maternity and marriage and civil partnership.
- Employees will now be able to complain of behaviour that they find offensive even if it is not directed at them, and the complainant need not possess the relevant characteristic themselves (e.g. a white employee can be racially harassed where another white employee makes racist comments (about people from other races) in his/her presence where the conduct is unwanted or creates an intimidating/hostile/degrading/humiliating/offensive environment for him/her. See Mann v NSL Ltd where an ambulance assistant was fairly dismissed after using a racist term at work in front of white colleauges).
- Employees are also protected from harassment because of perception and association.
- In 2015 a Zero-Hours contract worker, who feared reporting allegations of sexual harassment by her line manager, in case she lost her job, was awarded £19,500 for sexual harassment (S v Britannia Hotels Ltd). The Tribunal was very critical of the employer’s investigation and there failure to follow up the worker’s complaints, the lack of any clear action against the alleged perpertrator and the long delay in completing the investigation.
There are 3 types of Sexual Harassment at work – unwanted conduct of a sexual nature; sex-related harassment; being treated less favourably by the harasser:
- Unwanted Conduct of a sexual nature – which has the purpose or effect of violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment (e.g. sexually explicit jokes by e-mail; pictures of naked woman; inappropriate touching or comments; sexual innunedoes; persistent requests for ‘dates’).
- Sex-Related Harassment – where the conduct has the purpose or effect of violating someone’s dignity or creating an unpleasant environment (e.g. gossip about the paterity of an unborn child; comments about childcare arrangements).
- Where an employee rejects sexual advances (or submits to them) and is then treated less favourably by the harasser
Third party harassment – this section was repealed by the Government on 1st October 2013 and the details below no longer apply. Read more details here about what this means and about the Protection from Harassment Act 1997, which does provide that an employer can be vicariously liable under the Protection from Harassment Act for harm caused by an employee harassing a colleague (and harm caused to another person who may be an indirect victim of the harassment).
- (The Equality Act made Employers potentially liable for harassment of their employees by people (third parties) who are not employees of the company, such as customers or clients; and also makes Employers liable for acts of harassment by their employees, even outside of normal working hours.
- Employers would only be liable when harassment has occurred on at least two previous occasions and they were aware that it has taken place but did not take reasonable steps to prevent it from happening again.
- Applied to sex, age, disability, gender reassignment, race, religion or belief and sexual orientation.
- Did not apply to marriage/civil partnerships or pregnancy/maternity).
- Victimisation occurs when an employee is treated badly because they have made or supported a complaint or raised a grievance under the Equality Act; or because they are suspected of doing so.
- An employee is not protected from victimisation if they have maliciously made or supported an untrue complaint.
- There is no longer a need to compare treatment of a complainant with that of a person who has not made or supported a complaint under the Act.
- Exists for all Protected Characteristics and recent court cases have confirmed this applies to ex-employees too.
The concept of dual discrimination is introduced by the Act and was due to come into effect in March 2011, but was later postponed. This is where an individual, who believes that he or she has been treated less favourably because of a combination of two protected characteristics can bring a combined claim, but only for direct discrimination (and with the exception of the protected characteristics of marriage/civil partnership and preganancy/maternity). If this concept is re-examined we will update this accordingly. In March 2014 the Labour party said they would reintroduce this if they came to power.
Other key points and changes
A 2015 Employment Appeal Tribundal decision in Henderson v GMB, made it clear that trivial acts, even if related to a protected characteristic, will not constitute unlawful harassment; an incident must be serious enough to create an intimidating, hostile or humiliating environment for the worker, before it will be seen as such.
In May 2016, the Court of Appeal confirmed that the territorial scope of the Equality Act is the same as that for claims made under the Employment Rights Act 1996, in R (Hottak) v The Secretary of State fo Foreign and Commenwealth Affairs. More details are here.
The Equality Act allows Employers to take positive action if they ‘reasonably believe’ that employees or job applicants who have a particular protected characteristic suffer a disadvantage connected to that characteristic, or if their participation in an activity is disproportionately low or they are under-represented in the workplace.
From 6th April 2011, a further part of the Act is implemented that is aimed at improving diversity when recruiting and promoting candidates and means that Employers can give such a person ‘more favourable treatment in relation to recruitment’ than someone without that characteristic as long as the action is proportionate and does not contravene, in a direct or indirect way, any other part of the Equality Act. This extension to the Act of positive action in recruitment is entirely voluntary for Employers and is not a legal requirement.
Pre-employment health-related checks
The new Equality Act limits the circumstances when Employers (or Agencies) can ask health-related questions (of the applicant or in a reference request letter) before they offer an individual a job.
Now, before a job offer, Employers can only ask health-related questions that help them:
- Decide whether they need to make any reasonable adjustments, for the person, during the selection process
- Decide whether an applicant can carry out a function that is essential (‘intrinsic’) to the job
- Monitor diversity among people making applications for jobs
- Take positive action to help disabled people assure themselves that a candidate has the disability where the job genuinely requires the jobholder to have a disability
Once a person has passed the interview and has been offered a job then it is permitted for Employers to ask appropriate health-related questions.
Extension of employment tribunal powers
Under previous legislation, an employment tribunal could make a recommendation that an employer must eliminate or reduce the effect on the claimant of any discrimination. The Act extends this power so that it will now be possible for a tribunal to make recommendations that an organisation (who have lost a discrimination claim) must take steps to eliminate or reduce the effect of discrimination on other employees, not only on the claimant (even if the claimant has left their employer).
For example, the tribunal might specify that an employer needs to train all staff about the organisation’s bullying and harassment policy or mental health issues. This power does not apply to equal pay cases.
The Government will repeal this provision on 1st October 2015. So, for claims commenced on or after 1st October, tribunals will be able to recommend that employers take steps for the benefit of the claimant only who is still in their employment (so has not left their employment).
Equal pay – direct discrimination
The Equality Act retains the previous framework that was in place for Equal Pay. This means that in most circumstances a challenge to pay inequality and other contractual terms and conditions still has to be made by comparison with a real person of the opposite sex in the same employment (doing “like” work, “work related as equivalent” (under a job evaluation scheme) or “work of an equal value” to an employee of the opposite sex employed by the same employer or possibly an associated employer).
However, a change in the Equality Act allows a claim of direct pay discrimination to be made, where no real person comparator can be found. This means that a claimant who can show evidence that they would have received better remuneration from their employer if they were of a different sex may have a claim, even if there is no-one of the opposite sex doing equal work in the organisation. This would be a claim under sex discrimination.
In 2012, a landmark Equal Pay case delivered the verdict that workers now have 6 years (5 years in Scotland) to make an equal pay claim in the High Court (rather than 6 months to an Employment Tribunal).
A ruling by the Supreme Court at the end of June 2013 has effectively handed women the legal right to demand the same pay as male colleagues doing a different job of ‘equal value’.
And in 2014 a major supermarket chain will have action taken against it by over 400 female workers who do in-store jobs (e.g. check out staff) who are comparing their work to warehouse and distribution centre jobs which are male dominated.
Basically, if you are an employee or worker who is paid less than someone of the opposite sex doing “like” (similar) work, equivalent work (same grade/band) or work of equal value (the job has equivalent demands) then you are covered by this Act. If you make a successful Equal Pay claim you can recover back pay (the difference between what you receive and the ‘comparator’ received, for up to 6 years) and will be entitled to receive the new pay in the future. “Equal Pay” includes basic pay, overtime rates, bonuses, commission, allowances, redundancy pay, notice pay, benefits, pension entitlements, performance targets, holiday entitlement, overtime availability.
The Act carries provisions to introduce compulsory pay audits for Employers in the private and third-sector with more than 250 employers and at the end of March 2015 it was announced this will be introduced within a year – probably by October 2016 and you can read more details here. There is a possibility that the law will be phased in with the largest companies being required to report first.more details to follow. Public sector bodies with more than 150 employees will have required to report on gender pay (as well as other equality data) by April 2011.
The Act makes it unlawful for an Employer to prevent or restrict their employees from having a discussion to establish if differences in pay exist that are related to protected characteristics and outlaws pay secrecy clauses in contracts of employment.
An employer can require their employees to keep pay rates confidential from some people outside the workplace, for example a competitor organisation.
Your Employer must, by law, have an Equal Opportunities policy.
The following must also be considered:
- Right to apply for flexible working for parents
- Prevention of less favourable treatment for part-time workers
- Prevention of less favourable treatment for Fixed Term employees
- Maternity Rights
In addition there is specific legislation in Northern Ireland that amends the Race Relations Act by identifying the Irish Traveller community as a racial community and makes it unlawful to discriminate against someone on the grounds of religious belief or political opinion. They cover direct and indirect discrimination and victimisation.
The Equal Opportunities Commission, the Disability Rights Commission and the Commission for Racial Equality were merged in October 2007 to form a single equality body called the Commission for Equality and Human Rights. It offers various publications and advice to explain the above in more detail.
If you are an Employer and need ongoing professional help with any staff/freelance issue then talk to Lesley at The HR Kiosk – a Human Resources Consultancy for small businesses – our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need.
Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.
Photo by Sharon L Flynn