Employment Law Update (August 2010)

Equality Act Tutorial

The Equality Act is set to come into force this October. The Act will bring all equality laws together in one place, and will make some significant changes to anti-discrimination and equality law in the workplace.

To help you prepare, Mentor is preparing a series of factsheets – or tutorials - on key changes introduced by the Equality Act.  These are intended as a very quick introduction to how the new law will work.

In addition to these tutorials, Mentor will provide further guidance and support, including any necessary changes to your Guidance systems or Toolkits over the coming months.  For the latest information, log on to MentorLive. 

Tutorial 1 – Something old; something new…

Here we introduce the Equality Act by looking at some things that remain the same under the new law, and some things that are brand new and that employer need to know about.

Something old – some things that stay the same under the Equality Act 2010

The Equality Act does not bring in any new grounds for discrimination, so those that employers will be familiar with – race, sex, disability, etc – remain in place.  What the Act does is to call these different grounds for discrimination "protected characteristics".

The Equality Act offers protection to people with "protected characteristics".  The list of nine protected characteristics simply covers all those characteristics covered by existing non-discrimination law strands.  The protected characteristics are (in alphabetical order):

• Age;
• Disability;
• Gender reassignment;
• Marriage and civil partnership;
• Pregnancy and Maternity;
• Race;
• Religion or belief;
• Sex;
• Sexual orientation.

Note that gender reassignment, marriage, civil partnership, pregnancy and maternity are currently protected under sex discrimination law.  The Equality Act does not add any protected characteristics to those already defined by law, but lists them in a different way.

Something new – two new types of unlawful discrimination that you need to know about

Associative discrimination

Associative discrimination is discrimination against a person because the person has an association with someone with a particular protected characteristic (see above for the definition of "protected characteristic").

An example of associative discrimination might be a non-disabled employee who is discriminated against because of action she needs to take to care for a disabled dependant.

Associative discrimination already applies to race, religion or belief, and sexual orientation and is now to be extended to cover age, disability, gender reassignment and sex discrimination.

How this might affect employers

• Managers involved in making recruitment or promotion decisions and line managers involved in taking disciplinary action will need to take care that they are not discriminating against a person because he or she has care responsibilities, for example.

Combined discrimination

Combined discrimination is a new concept prohibited under the Equality Act.  It makes less favourable treatment because of a combination of two protected characteristics unlawful.  Note that combined discrimination only relates to direct discrimination, and does not apply to pregnancy, maternity, marriage or civil partnership.

An example of combined discrimination would be the case of a black woman who feels she is unfairly being denied promotion by her employer.  Her employer might be able to successfully defend a claim of race discrimination, because black men are routinely promoted, and might equally be able to defend a case of sex discrimination, because white women are routinely promoted.  It is the combination of her characteristics that disadvantages the black woman.

The Equality Act will allow an employee in this situation to make a claim for unlawful discrimination.

How this might affect employers

• Employers will need to ensure that the make up of their workforce, across all job grades, reflects the community in which they operate.  It is not so much about what policies are in place – it is about the results that these policies achieve.