The Equality Act came into force in October 2010 and replaces all previous equality legislation in England, Scotland and Wales, including the Race Relations Act, the Equal Pay Act and the Sex Discrimination Act, among others.
Northern Ireland is not covered by the Equality Act and has its own separate Acts – see this article for more details.
Ready for the details? Here we go!
This article covers:
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).
This Act applies equally to employees, workers and many of those who are self-employed (only freelancers described as ‘contract workers’ and are contracted personally to do the work, i.e you can’t claim discrimination against your Employer if you’re contracted for the provision of services and hire someone else, or sub-contract someone else, to do the work). See our information about limited company contractors and the Equality Act here.
Your Employer must, by law, have an Equal Opportunities policy, which considers the following:
- 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’s 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.
Let’s take a more detailed look at 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’s 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 have suffered age discrimination.
The two sisters had resigned from their jobs in a service station; they were aged 18 and 21 and alleged they were “berated aggressively” over mistakes that were caused by another employee. The Tribunal felt they were “not treated with the respect they deserved as employees” and that the employer wouldn’t have treated an older employee in the same way. They were also successful in their sex discrimination claims after the owner dubbed cleaning “a woman’s work”.
More details about age discrimination related to retirement are here.
See our guide to retirement here.
The Act has made it easier for a person to show that they’re disabled. 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).
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, it’s discriminatory 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’s a proportionate means of achieving a legitimate aim.
Additionally, indirect discrimination now covers disabled people.
A trans person is someone who doesn’t identify with the gender they were assigned at birth. The Act no longer requires a person to be under medical supervision to be protected – so a trans person who decides to live permanently as a man but doesn’t undergo any medical procedures is covered.
It’s discrimination to treat trans people less favourably for being absent from work because of gender reassignment surgery than they would be treated if they were absent because they were ill or injured, as any other employee. Medical procedures for gender reassignment such as hormone treatment cannot be treated as a ‘lifestyle’ choice.
You must let transgender staff choose the toilet facilities they wish to use. If other members of staff object to this, this could potentially be discriminatory.
If you employ someone who has transitioned, you must keep this information confidential and ensure that any records which refer to their gender identity at birth are kept in a safe place. This information constitutes ‘sensitive data’ under the Data Protection Act 1988. If an employer needs to retain information that’s related to the transition (such as absence records for medical reasons), their birth certificate or documentation of a name change this should be kept confidential; and computer databases/systems reflect the current situation of their name/gender and contain no ‘old’ data.
It’s a criminal offence for any member of staff who has found protected information regarding someone’s gender identity to disclose that information to another person.
In 2018 in Miss A de Souza E Souza v Primark Stores Ltd, it was found that the claimant’s constructive dismissal was direct gender reassignment discrimination, after she suffered harassment from a supervisor and other staff members, including in front of customers, in the form of calling her by her original male name, calling her a ‘joke’ and ‘evil’. The claimant raised a grievance and later complained to the police. Primark dealt with the grievance badly by making errors in its investigations and she was never informed of the outcome of her grievance or given a right of appeal. She was award £47,433 in damages.
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 (e.g. Black Britons).
For information about discrimination relating to languages used at work, see our article here.
It was confirmed in 2014 that immigration status does not equate to race. A Tribunal claimant alleged that immigration status and nationality are intimately associated 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 discriminated 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 reconsideration. The EAT had held that ethnic origin included caste. Tirkey had been made to work 18 hour days, seven days a week, and paid just 11p per hour to be a domestic servant for the family in the UK.
Religion and 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 don’t 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’s 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 Tribunals 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; belief in Scottish Independence. However, marxist/trotskyist political beliefs have been ruled to not constitute a philosophical belief. 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 single-gender 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, which embarrassed and distressed him. 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 six months after the birth or while still breastfeeding. During this period, pregnancy and maternity discrimination can’t be treated as sex discrimination. For example, an Agency can’t refuse to place a worker, or a hirer refuse to accept a worker, or terminate a worker’s placement because she is pregnant. If you’re an ‘Agency Worker’, please see our guide to the Agency Worker Regulations and what this will mean if you’re pregnant.
Women are covered against pregnancy and maternity discrimination whether they’re a job applicant, an employee, a worker or self-employed (and providing their service personally). The provisions cover all parts of the employment relationship including recruitment, promotion, training and redundancy selection. A dismissal that’s due to an employee’s pregnancy or maternity leave will be automatically unfair.
In March 2018, the EAT confirmed that an employer is only liable for a pregnancy-related dismissal if they know or believe that the employee is pregnant, at the time they make the decision to dismiss.
In Really Easy Car Credit Ltd v Thompson, the claimant was dismissed in her probationary period for performance and conduct reasons (‘failure to fit in’). The employer made this decision on 3rd August 2016 but didn’t tell Thompson until the 5th August (in a letter dated the 3rd), and on the 4th August the claimant told her employer she was pregnant.
The EAT, overturning the original ET decision, held that the decision to dismiss her wasn’t taken because of her pregnancy, therefore the dismissal decision wasn’t automatically unfair. This was because the employer didn’t know of the claimant’s pregnancy when it made the decision to dismiss.
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 (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, wasn’t discrimination on pregnancy/maternity or sex grounds – this was because the unfavourable treatment didn’t 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 five to three a week without consulting her. This meant she qualified for maternity allowance, but not SMP. She put in a grievance which was rejected. She then resigned and later put in an appeal against the grievance decision, but 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 constituted pregnancy discrimination.
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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 pregnant police dog handler who 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) doesn’t 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 it’s 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 hypothetical 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 subjected to inappropriate workplace “banter” about Jews). It doesn’t 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 aren’t of the same ethnic group who suffer alongside them
- Applies to race, religion or belief, sexual orientation, age, disability, gender reassignment and sex
- Doesn’t 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 suddenly 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 doesn’t actually possess that characteristic
- Already applies to age, race, religion or belief, sexual orientation, disability, gender reassignment and sex
- Doesn’t apply to marriage/civil partnerships or pregnancy/maternity.
- Indirect discrimination can occur when your Employer has a condition, rule, policy or practice in the company that applies to everyone but which particularly disadvantages people who share a protected characteristic. In October 2016, an Employment Tribunal ruled that Network Rail had committed indirect sex discrimination by not paying a male employee occupational Shared Parental Leave Pay when they paid female employees occupational Maternity Pay – you can read about this here
- Indirect discrimination can be justified if Employers can show they acted reasonably in managing their business. In September 2016 an Employment Tribunal found that Easyjet had committed indirect sex discrimination against two cabin crew by not providing adequate arrangements for them while they were breastfeeding. You can read more here
- In April 2017, in the combined cases of Essop and others v Home Office and Naeem v Secretary of State for Justice, the Supreme Court held that there is no requirement for a claimant to prove the reason why a PCP puts or would put a group with a protected characteristic at a particular disadvantage; and that there is no requirement that a PCP must put every member of that group at a disadvantage. The Employer must show that the PCP is objectively justified
- Applies to age, race, religion or belief, sex, sexual orientation and marriage, civil partnership, disability and gender reassignment
- Doesn’t apply to pregnancy/maternity.
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 pregnancy/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.
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There are three 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 innuendos; 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 paternity 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.
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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 doesn’t 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.
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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.
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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’ve 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 six years (five years in Scotland) to make an equal pay claim in the High Court (rather than six 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’.
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.
In October 2018 an on-going Equal Pay row for Asda’s shop floor workers went to the Court of Appeal. An Employment Tribunal and Employment Appeal Tribunal have already ruled that shop floor workers should be able to compare themselves to higher paid colleagues in the supermarket’s distribution centre as their work is of equal value. Asda is appealing these 2 previous rulings.
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 six years) and you’ll 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 also 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. However, this has been delayed until 6th April 2017 and you can read more details here.
An employer can require their employees to keep pay rates confidential from some people outside the workplace, such as a competitor organisation.
You can learn more about mandatory gender pay reporting in our gender pay article.
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If you’d like to learn more about equality at work and the scope of the Equality Act, you can check out a range of other articles we’ve compiled on the subject, including:
If you’re an employer and need ongoing professional help with any staff/freelance issues, talk to us at The HR Kiosk – a Human Resources Consultancy for small businesses. You can retain 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 also can’t be seen as specific advice for individual cases. Please also note there are differences in legislation in Northern Ireland.