October 2010 / Special Alert A legal upate from Dechert s Employment Law Group The Equality Act 2010 What Employers Nee to Know Now Introuction The Equality Act (the Act ) receive Royal Assent in early April 2010 an a number of its provisions come into force on 1 October 2010. The Act harmonises, simplifies an reforms the UK s iscrimination regime. This upate therefore explains the changes which are ue to come into force on 1 October 2010 an provies guiance on the steps employers can an shoul take to ensure compliance with the Act. Prior to the Act coming into force, the legislation governing unlawful iscrimination was containe in numerous acts an regulations, namely the Equal Pay Act 1970, Sex Discrimination Act 1975, Race Relations Act 1976, Disability Discrimination Act 1995, Equality Act 2006, Employment Equality (Religion or Belief) Regulations 2003, Employment Equality (Sexual Orientation) Regulations 2003, Employment Equality (Age) Regulations 2006 an Equality Act (Sexual Orientation) Regulations 2007). Protecte Characteristics The characteristics protecte by the UK s iscrimination legislation prior to the Act an which may give an iniviual the right to bring a iscrimination claim remain in place. Accoringly, employees are still protecte from unlawful iscrimination on the basis of age, isability, gener reassignment, marriage an civil partnership, pregnancy an maternity, race, religion or belief, sex an sexual orientation. The Act escribes these as protecte characteristics. Important changes mae by the Act to the application an efinition of these protecte characteristics are as follows: the concepts of iscrimination by perception an iscrimination by association (which ha been eveloping in the prior case law) are now specifically covere by the legislation; the efinition of gener reassignment has change. There is now no requirement for the iniviual to be uner meical supervision in orer to be protecte from unlawful iscrimination what is require is a ecision to live permanently in a re-assigne sex; an the efinition of isability has been altere. An iniviual is still eeme isable if he or she has a physical or mental impairment an the impairment has a substantial an long-term averse effect on their ability to carry out normal ay-to-ay activities. However, the tribunal no longer nees to consier the prescribe list of capacities which was set out in the Disability Discrimination Act 1995 (such as mobility an manual exterity) in etermining whether a person suffers a long-term averse effect on ay-to-ay activities.
Forms of Discrimination The Act restates, an makes consistent across the various strans of iscrimination protection, the forms of iscrimination which the Act eems unlawful. shifts to the responent to show that it i not breach the provisions of the Act. The reversal of the buren of proof remains unchange by the Act an is of crucial importance to employers, as a practical an eviential matter, when efening iscrimination claims. Direct Discrimination Direct iscrimination arises when someone is treate less favourably than another person: because of a protecte characteristic; because he or she is thought to have a protecte characteristic; or because he or she associates with someone who has a protecte characteristic. As a result, perceive an associative iscrimination are concepts now covere by the Act. However, the legislation oes not provie protection in respect of iscrimination by perception or association if the protecte characteristic in question is marriage or civil partnership. In other wors, the victim of unlawful irect iscrimination on the basis of marriage or civil partnership must, in fact, be marrie or in a civil partnership as the case may be. Perceive iscrimination woul occur, for example, if an employee were subjecte to unlawful iscrimination on the groun that he is believe to be homosexual but is, in fact, heterosexual (or unwilling to confirm his orientation either way). Associative iscrimination woul occur if, for example, an employee is subjecte to unlawful iscrimination on the groun that his/her frien or family member is isable. Those with caring responsibilities may argue, epening on their circumstances, that they are protecte by this concept of associative iscrimination. Employers shoul note that: it is still possible to justify irect age iscrimination if it is a proportionate means of achieving a legitimate aim; an in any proceeings where a person alleges iscrimination, harassment or victimisation uner the Act, the buren of proving the claim starts with the claimant. Once the claimant has establishe sufficient facts which in the absence of any other explanation point to iscrimination potentially having occurre, the buren Inirect Discrimination Inirect iscrimination arises when a policy or practice which applies to everyone particularly isavantages people who have a protecte characteristic. Unlike irect iscrimination (save in the case of age), inirect iscrimination can be justifie if the employer can show that the policy or practice is a proportionate means of achieving a legitimate aim, a test which is necessarily fact-sensitive in each particular case. Inirect iscrimination alreay applies to age, race, religion/belief, sex, sexual orientation an marriage/civil partnership. The Act extens its coverage to the protecte characteristics of isability an gener reassignment. Inirect iscrimination claims cannot be mae in relation to pregnancy or maternity. Harassment Harassment is efine by the Act as unwante conuct relate to a relevant protecte characteristic which has the purpose or effect or violating an iniviual s ignity or creating an intimiating, hostile, egraing, humiliating or offensive environment for that iniviual. Whilst the efinition of harassment largely reflects the formulation aopte in the previous legislation, employers shoul note that: the upate concept of harassment enshrine in the Act is wie enough to protect iniviuals who are perceive to have, or associate with someone who has, a relevant protecte characteristic; harassment applies to all protecte characteristics, except pregnancy/maternity an marriage/civil partnership; the Act establishes two aitional specific forms of harassment unwante conuct of a sexual nature an less favourable treatment because an iniviual submits to October 2010 / Special Alert 2
or rejects sexual harassment relate to sex or gener reassignment; an employers can be liable for harassment of their employees by thir parties if the employer has not taken reasonable steps to prevent such treatment an the employer knows that the employee has been harasse on at least two previous occasions (although the perpetrators of such harassment can be ifferent). Before the Act came into force, only thir-party harassment on the basis of sex was protecte in this way. Victimisation Victimisation occurs when an employer subjects a person to a etriment because they have (or the employer believes the iniviual has or may have) carrie out a protecte act. The iniviual subjecte to victimisation oes not nee to possess a characteristic protecte by the Act in orer to be able to make a claim of victimisation. Any of the following constitute a protecte act : bringing proceeings uner the Act; giving evience or information in proceeings brought uner the Act; oing anything which is relate to the provisions of the Act; or making an allegation that another person has one something in breach of the Act. The concept of etriment (i.e. treatment which gives rise to a victimisation claim) is not efine in the Act nor was it in the earlier legislation but is likely to inclue making an iniviual s position worse an/or putting the iniviual at a isavantage (for example, isproportionate performance requirements, emotion). The important change which the Act makes in relation to victimisation is that a comparator is no longer require. The complainant simply has to show they have been subjecte to a etriment by reference to a protecte act, not that he or she has been treate less favourably than someone who ha not committe a protecte act. This shoul make victimisation claims simpler an easier to run. Discrimination Arising from Disability The Act establishes a specific new form of isability iscrimination iscrimination arising from isability. This new concept has been introuce to overcome the limitations of isability relate iscrimination (uner the Disability Discrimination Act 1995) following the case of Lonon Borough of Lewisham v Malcolm. The Malcolm case mae the concept of isability relate iscrimination uner the 1995 Act virtually meaningless. Mr Malcolm was schizophrenic an illegally sublet his council flat. The House of Lors hel that, to etermine whether he ha suffere isability-relate iscrimination, Mr Malcolm shoul be compare with a non-isable person who ha also sublet his/her flat. On that basis, there was no unlawful isability iscrimination because the council woul have treate both the isable an non-isable persons in the same way. The new concept of iscrimination arising from isability oes not require a comparator an therefore will make claims easier to bring. An employer will iscriminate against a isable person if that person is treate less favourably because of something arising in consequence of his or her isability. Whilst this change expans the ability of those who can emonstrate that they are isable for the purposes of the legislation to bring claims, employers can still efen their position either: on the basis of justification for its action, i.e. that its treatment of the complainant was a proportionate means of achieving a legitimate aim; an on the basis that it i not know an coul not reasonably be expecte to know that the complainant ha the isability in question. Disability Discrimination Duty to Make Reasonable Ajustments The uty to make reasonable ajustments establishe by the 1995 Act remains in place. In summary, where a provision, criterion or practice or a physical feature puts a isable person at a substantial isavantage (in relation to a relevant matter in comparison with a non-isable person) the employer must take such steps as it is reasonable to avoi the isavantage. The Act now makes clear that where a isable person woul, but for the provision of an auxiliary ai, be at a October 2010 / Special Alert 3
substantial isavantage in comparison with nonisable persons, the employer must take such steps as is reasonable to have to take to provie the auxiliary ai. Pre-Employment Health Questionnaires As a result of the Act, employers will be restricte from asking job applicants about their health an any isability before making any (conitional or unconitional) offer of work, except in certain specifie circumstances. These provisions relate to offers of work an therefore apply equally to applications for employment, engagement as a worker or partnership. An employer is only explicitly permitte by the Act to ask questions of job applicants which are necessary for the purposes of, amongst other things, etermining whether any ajustments nee to be mae to enable the applicant to participate in a recruitment exercise, establishing whether the applicant will be able to carry out a function that is intrinsic to the job (once reasonable ajustments have been mae) an enabling the employer to ientify suitable caniates for a job where there is an occupational requirement for the applicant to be isable. An employer will not commit an act of isability iscrimination by simply asking a job applicant about his or her health before making an offer of employment. However, if an employer oes make pre-employment health enquiries for a reason which is not permitte an the applicant subsequently brings a claim for irect isability iscrimination, the employer s conuct in relying on the information given by the applicant may lea an Employment Tribunal to conclue that the employer committe a iscriminatory act. Effectively, the buren of proof shifts to the employer to emonstrate that it i not act in a iscriminatory manner. These provisions o not prevent employers from requiring applicants to complete meical questionnaires or unergo meicals once they have been offere a position, even where such a requirement is a conition of the relevant offer. If an offer is withrawn as a result of a health questionnaire or meical, the employer coul nonetheless be face with a claim uner the Act of irect iscrimination, iscrimination arising from a isability or a breach of the uty to make reasonable ajustments. Employment Tribunal Recommenations The Act gives the employment tribunal the power, where a claim is successful, to recommen the steps that a business shoul take to eliminate or reuce the averse effect of iscrimination in the workplace (for example, by introucing an equal opportunities policy). Such a recommenation will not be legally bining. That sai, failure to comply with a recommenation coul be use as evience to support future iscrimination claims. Transition from Existing Legislation The Act will not apply to acts of iscrimination which occur wholly before 1 October (to which the ol legislation will apply). It will, however, apply to acts of iscrimination which starte before 1 October an continue after 1 October provie such iscrimination is unlawful uner both the Act an the previous legislation. Any unlawful iscrimination which takes place wholly after 1 October will be covere by the Act. Pay Secrecy Uner the Act, any provision which seeks to prevent employees from isclosing pay ata is unenforceable when the iniviual is seeking to make a relevant pay isclosure. A relevant pay isclosure is one that is mae for the purpose of fining out whether or to what extent there is a nexus between pay an a particular protecte characteristic. Future Changes A number of sections of the Act are not scheule to come into force in October 2010. These inclue, arguably, some of the most controversial provisions of the Act. Those which are relevant to employers are: the introuction of the ability to bring a claim of combine iscrimination, whereby employees will be able to bring iscrimination claims base on a combination of two protecte characteristics; phase removal of the efault retirement age (currently 65); gener pay gap information, requiring employers with 250 or more employees to October 2010 / Special Alert 4
report on the isparity between what male an female employees are pai; an positive action in recruitment an promotion, permitting employers to select caniates for recruitment or promotion on the basis of a protecte characteristic. The Government has simply state that Ministers are consiering how to implement these remaining provisions in the best way for business an for others with rights an responsibilities uner the Act. Their ecisions will be announce in ue course. EHRC Guiance an Coes of Practice The Equality an Human Rights Commission (EHRC) has prouce guiance to help employers to unerstan an use the Act. The guiance ocuments provie an overview of the Act an are available on the EHRC website. The EHRC is also in the process of proucing three Coes of Practice on employment; services, public functions an associations; an equal pay which employers shoul look out for. The purpose of these Coes of Practice is to explain in more etail the new statutory provisions of the Act. The EHRC hopes to finalise the Coes of Practice by the en of October 2010. The Coes of Practice will have to be approve by Parliament before coming into force. For the avoiance of oubt, a failure by a person or organisation to comply with a provision of a Coe of Practice will not of itself be a cause of action. However, such a breach will be amissible as evience an may be taken into account by a court or tribunal in assessing whether a breach of the Act has occurre. Dealing with the Act To ensure compliance with the Act, employers shoul: review their policies an proceures to ensure those ocuments remain appropriate. Where an employer alreay has a broa equal opportunities policy, it is unlikely that this will nee a complete overhaul. Nonetheless, it is helpful (not least in efening any potential tribunal claim) to emonstrate that the employer has mae the effort to review its policies an proceures in the light of the Act. In particular, it may be helpful for employers to ensure that their policies inclue a complete list of protecte characteristics, provie examples of what woul amount to perceptive an associative iscrimination an encourage employees to report any act of harassment from any source; review current recruitment practices an ensure that all iniviuals involve in recruitment are aware of the new restriction on pre-employment health checks. Any health check that is potentially require shoul be carefully vette. The basis for unertaking such a health check in respect of any role shoul be contemporaneously note an kept on file; review template compromise agreements to ensure the waiver of claims is effective; an consier the EHRC s guiance. Diversity an Training The introuction of the Act also offers a goo opportunity for employers to ensure that employees are aware of their obligations in relation to iversity an iscrimination issues by conucting iversity training (particularly at manager level an above). Diversity training can raise awareness of iversity an iscrimination issues in the workplace an can be valuable in reucing the risk of an assisting in the efence of employment tribunal claims, especially where introuce in conjunction with new or upate equal opportunities, harassment an isciplinary an grievance proceures. October 2010 / Special Alert 5
Practice group contacts For more information, please contact one of the lawyers liste, or the Dechert lawyer with whom you regularly work. Visit us at www.echert.com/employment. If you woul like to receive any of our other DechertOnPoints, please click here. Charles Wynn-Evans Lonon +44 (0) 20 7184 7545 charles.wynnevans@echert.com Emma Richarson Lonon +44 (0) 20 7184 7866 emma.richarson@echert.com D www.echert.com Dechert internationally is a combination of limite liability partnerships an other entities registere in ifferent jurisictions. Dechert has nearly 900 qualifie lawyers an 700 staff members in its offices in Belgium, China, France, Germany, Hong Kong, Irelan, Luxembourg, Russia, the UK, an the US. Dechert LLP is a limite liability partnership registere in Englan & Wales (Registere No. OC306029) an is regulate by the Solicitors Regulation Authority. The registere aress is 160 Queen Victoria Street, Lonon EC4V 4QQ, UK. A list of names of the members of Dechert LLP (who are referre to as partners ) is available for inspection at the above aress. The partners are solicitors or registere foreign lawyers. The use of the term partners shoul not be construe as inicating that the members of Dechert LLP are carrying on business in partnership for the purpose of the Partnership Act 1890. Dechert (Paris) LLP is a limite liability partnership registere in Englan an Wales (Registere No. OC332363), governe by the Solicitors Regulation Authority, an registere with the French Bar pursuant to Directive 98/5/CE. A list of the names of the members of Dechert (Paris) LLP (who are solicitors or registere foreign lawyers) is available for inspection at our Paris office at 32 rue e Monceau, 75008 Paris, France, an at our registere office at 160 Queen Victoria Street, Lonon, EC4V 4QQ, UK. Dechert LLP is in association with Hwang & Co in Hong Kong. This ocument is a basic summary of legal issues. It shoul not be relie upon as an authoritative statement of the law. You shoul obtain etaile legal avice before taking action. This publication, provie by Dechert LLP as a general informational service, may be consiere attorney avertising in some jurisictions. Prior results o not guarantee a similar outcome. Dechert is an Irish partnership regulate by the Law Society of Irelan. 2010 Dechert LLP. Reprouction of items from this ocument is permitte provie you clearly acknowlege Dechert LLP as the source. EUROPE Brussels Dublin Lonon Luxembourg Moscow Munich Paris U.S. Austin Boston Charlotte Hartfor New York Orange County Philaelphia Princeton San Francisco Silicon Valley Washington, D.C. ASIA Beijing Hong Kong October 2010 / Special Alert 6