The Equality Act, which harmonises and extends existing employment law on discrimination, has been approved by the House of Commons and is due to come partially into force in October.
Rachel Dineley, employment partner and head of the diversity and discrimination unit at Beachcroft LLP, says the new law had been “a long time coming” since current discrimination legislation was often “inconsistent and difficult to interpret”.
“We all know that the devil is in the detail; and employers will fall foul of the law, where the detail eludes them,” she says.
“Many will have their work cut out, putting appropriate measures in place to reduce the risk of claims against them. For example, they will have to take a fresh look at how they cater for disabled job applicants and employees.”
The following are the main provisions of the Equality Act 2010.
Existing discrimination law will be harmonised and extended.
Employers will be prevented from asking job applicants questions about health and disability, except in specified circumstances such as where this is intrinsic to the job, prior to making a job offer.
Discrimination by association or based on perception is banned.
Applicants will be able to claim discrimination on the basis of a combination of characteristics, for example, that they are an Asian woman.
Tribunals will be able to make wide-ranging recommendations, for example, re-training of staff.
Employers can practise positive discrimination, where an applicant is from an under-represented group and where they have a choice between two equally qualified candidates.
Employees will be free to discuss their pay and any action taken against them for doing so will be unlawful victimisation.
Age discrimination protections will be extended to the provision of services and public functions.
Employers with 250 employees or more will be encouraged to publish their pay statistics to show how they are tackling the gender pay gap, and this could become compulsory in 2013. Public bodies with 150 or more employees may have to publish their gender pay gap from April 2011.
“Although employers will not be required to undertake pay audits, and no actual figures will be published, they may be required to disclose the percentage difference and this will inevitably increase the administrative burden on already stretched resources,” says Dinely.
“In addition, we expect public sector employers with more than 150 employees to be required to publish data on BME and disabled groups. Under the Act, the government proposes to extend the positive action regime.
“Employers would be able to consider, when selecting between two equally qualified candidates, under-representation of disadvantaged groups and appoint the person from the under-represented. The merits of these new provisions are highly controversial and some view them as social engineering by the back door.”
Stephen Hocking, public law expert at Beachcroft LLP, says: “The Act emphasises how central equalities considerations are to public service planning and delivery.
“It will be essential for all public bodies to consider and to document equality issues in every decision that they take. This will be a challenge for some, particularly where budgets may be tight and tough decisions have to be made.
“But the Act makes plain that Parliament considers equality a high priority for all public bodies, and they must treat it as such.”
