More claims anticipated as Equality Act comes into force

Employment lawyers were predicting a rise in successful tribunal claims as large parts of the Equality Act 2010 came into force today, 1 October.

The Act will affect all UK employers, regardless of size, and will apply across both public and private sectors. It aims to bring existing discrimination law into a single Act to promote consistency of practice and ease of understanding among employers, but also extends legal protection for employees in a number of ways.

It introduces a ban on pre-employment health questionnaires, allows employment tribunals to recommend changes to an employer’s practice and procedures such as retraining or publishing promotion criteria, and gives employees freedom to discuss their salaries and pay packages without fear of sanction from their employer.

A new ‘justification’ test is introduced for disability discrimination, replacing the different tests currently used, and the employer will need to show that its conduct was a ‘proportionate means of achieving a legitimate aim’. Claims for direct discrimination on two (but not three) combined grounds will be allowed, and employers will be liable in certain circumstances if an employee is repeatedly harassed by third parties such as customers.

Nick Hoffman, barrister at 7 Bedford Row, said: “The reversal in the burden of proof from the claimant having to establish a prima facie case to the defendant having to disprove any facts suggestive of discrimination will have a dramatic effect on the way in which discrimination cases are understood and heard in the courts.

“Effectively, the ‘evidential bar’ has been considerably lowered and employers can expect to have to defend more claims.”

Smair Soor, barrister at 7 Bedford Row, said: “Employees, such as older female TV newsreaders, will now be able to claim dual discrimination, such as on the basis of age and gender.

“Employers will no longer be able to defend such a case by pointing to a comparable example of where they haven’t discriminated on a single characteristic basis, such as using the example of employing older male newsreaders to disprove age discrimination. This should lead to less cases falling through the cracks.

“Employers will have to be aware that they can now be sued by an employee for harassment imparted by a third party, such as a contractor or a client. There will be a ‘three-strikes’ rule, where in the case of more than two incidents of harassment by a third party the employer will be responsible unless it makes reasonable efforts to resolve the harassment. This change extends the realm of harassment beyond the immediate workplace.

“Questions may be raised of how the rather arbitrary figure of ‘three strikes’ has been reached.”

Rachel Dineley, employment partner at Beachcroft LLP said: “The protection afforded to disabled applicants and employees in the workplace has been subtly but significantly strengthened through revisions included in the Act, which will arguably result in a greater number of these claims succeeding.

“On the enforcement side, the employment tribunals have been granted broader powers to make recommendations in relation to an employer’s practices and procedures in the event of a successful claim.

“The net result of these measures is to create traps for the unwary, and employers should take the opportunity to audit their current practices now to minimise their risks in this area. With many organisations undertaking some form of restructuring, the scope for expensive errors will increase. Ironically, employers could incur, rather than save, costs if they are not compliant with the new law.”

Khurram Shamsee, employment partner at Beachcroft LLP, said: “Gender pay has been a hot topic in recent years and the Equality Act includes a number of measures aimed at tackling this issue.

“For example, the Act seeks to encourage pay transparency by restricting the circumstances in which an employer can discipline an employee for disclosing salary and other pay details to their colleagues. There has been some tinkering with the equal pay provisions which will make it easier for employees to bring claims on this basis.”

(see NLJ special feature, A framework for fairness, by Spencer Keen, 3 Pump Court)