Equality Act Frequently Asked Questions

Does the Equality Act mean that anyone can complain about unequal treatment?

The Equality Act covers all people who were covered under previous anti-discrimination legislation. So, this includes sex, race, age, religion and belief, disability and sexual orientation discrimination. These things are now contained in one place – the Equality Act – and are called “protected characteristics”.

There is not a general right to equality, and so not everyone can complain about unequal treatment. In general, employees can only complain about the same sorts of things that they could complain about under the previous laws.

Doesn’t it only affect the public sector?

No. The Equality Act applies to all employers. However, the public sector has more onerous requirements to promote equality and employers which do business with the public sector may have additional requirements imposed on them to be able to tender for business. Mentor can provide assistance if you need it.

I’ve heard the Equality Act allows employers to positively discriminate in favour of minority job applicants. How will this work?

The Equality Act 2010 does contain a provision for an employer to favour an equally well qualified applicant from an under-represented minority when making recruitment or promotion decisions. However, this section has not been brought into force yet and is under review by the government.

I always ask people who I interview for a job how many days’ absence they have had from their current or previous job. Can I still do this?

No. The Equality Act 2010 bans employers from making enquiries about job applicants’ disability and health until a job offer has been made. A verbal question about an applicant’s absence record is in effect a question about their health and would not be appropriate under the Equality Act.

We would suggest making any job offer conditional on receipt of satisfactory medical information and taking advice about what questions to ask and what to do with the information.

Will I have to publish details of what people in the business are paid?

No. The Equality Act 2010 contains proposals about how inequalities in pay between men and women should be confronted. The old Equal Pay law was in force for over 30 years but big differences in male and female pay remain.

The Equality Act suggested that businesses with over 250 staff should be made to publish pay data. However, the coalition government is currently reviewing the proposals and there are no suggestions that SMEs will have to publish pay data.

I believe that staff will be able to claim because of abuse from customers – how can I control this?

It’s true that under the Equality Act, employers will be liable if they do not take steps to protect staff from abuse from third parties, including customers. The employer will only be liable if the abuse has occurred on two previous occasions, so the best advice for employers is to take complaints about such abuse seriously and record them, just like any other grievance an employee might raise.

A legal case a few years ago involving a complaint by ethnic minority waiting staff employed at a performance by Bernard Manning highlighted that employees should not be put in the way of racist or sexist abuse, but the Equality Act could have wider implications and only by recording complaints by employees can employers give proper consideration of what action to take.

There’s always a lot of banter among people in my workplace, but no-one complains about it. Do I really need to take steps to stop it?

Yes. The Equality Act 2010 goes further than previous legislation to prevent harassment and abuse in the workplace. This recognises that, although the worst cases of abuse are now few and far between, even low-level harassment can create an uncomfortable or intimidating atmosphere for some employees. It also acknowledges that the attitudes behind the abuse need changing.

Under the Equality Act, an employee does not have to be of an ethnic minority to complain of racist abuse, and an employee can make a complaint about the harassment of another person. Employers will need to be more vigilant to low-level abuse and harassment to avoid potential discrimination claims.

Can employees now complain about discrimination on more than one ground – for example, race and sex?

Not yet. The Equality Act contains provisions which will allow employees to claim that they were discriminated against on the basis of two grounds. The reason for this is that, in spite of anti-discrimination laws, some sections of society are very poorly represented in organisations, particularly at higher levels. However, these provisions have been delayed and are not yet in force.

Employers should check that their policies, procedures or even prejudices, are not disadvantaging certain sectors of society in their workplaces, to avoid claims of dual discrimination.

Are there new rights for carers?

The Equality Act does indirectly give carers new rights. This is because a person can claim “associative discrimination” – discrimination because of their connection with another person with a “protected characteristic”. The most obvious case is a carer of an elderly or disabled person who might be able to claim they were treated less favourably because of their care commitments. The act does not, however, give carers any specific rights – for example, to time off.

Employers should ensure managers are aware of the impact of the Equality Act on people with care responsibilities and understand when they need to take advice.