Legislation
What is the new Equality Act?
The Equality Act became law in October 2010 and harmonises and replaces previous legislation (such as the Race Relations Act 1976 and the Disability Discrimination Act 1995) with a single Act. The new Act simplifies the law, removing inconsistencies and making it easier for employers to understand what to do to make sure they comply with it. As an employer, your obligations remain largely the same as before.
The new Act extends some protections to people who were not previously covered as well as strengthening some aspects of equality law. This means it may be necessary to review and amend some company policies and procedures, as well as making sure that managers and employees are clear about their rights and responsibilities.
Who has responsibilities?
The Act applies to employers, service providers, education providers and those providing goods and facilities in UK. It applies to all services provided by the employer, whether or not a charge is made for them
Who does the law protect?
The Equality Act covers the same groups that are protected by existing legislation - Age, Disability, Gender Reassignment, Race, Religion or Belief, Sex, Sexual Orientation, Marriage and Civil Partnership and Pregnancy and Maternity. These are now called ‘protected characteristics‘.
The Act extends some protections to characteristics that were not previously covered and strengthens particular aspects of equality law.
The following table shows at a glance what has changed and what is new for each of the protected characteristics.
Source: ACAS “The Equality Act – What’s new for employers?” September 2010
| Characteristic covered in existing legislation – no changes | |
| Characteristic covered in existing legislation, but some changes | Changes |
| Characteristic not covered in existing legislation – now covered | new |
| Characteristic not covered in existing legislation, still not covered |
|
age |
Disability |
Gender Reassignment |
Race |
Religion or |
Sex |
Sexual Orientation |
Marriage & Civil Partnership |
Pregnancy & Maternity |
|
| Direct Discrimination | |||||||||
| Discrimination by association | New | New | New | New | |||||
| Discrimination by perception | New | New | New | ||||||
| Indirect Discrimination | New | New | |||||||
| Harassment | Changes | Changes | Changes | Changes | Changes | Changes | |||
| Harassment by a third party | New | New | New | New | New | New | |||
| Victimisation | Changes | Changes | Changes | Changes | Changes | Changes | Changes | Changes | Changes |
Definitions
The new Equality Legislation gives several definitions of discrimination, some of which were enshrined in the previous Disability Discrimination Acts, whilst others expand the scope of discrimination.
Please click on the titles for further information
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Someone is treated less favourably than another person because of a protected characteristic.
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Direct discrimination against someone because they associate with another person who possesses a protected characteristic.
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Direct discrimination against someone because others think they possess a protected characteristic, even if they do not.
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Someone is treated less favourably than another person because of a protected characteristic.
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Direct discrimination against someone because they associate with another person who possesses a protected characteristic.
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Direct discrimination against someone because others think they possess a protected characteristic, even if they do not.
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When a rule, policy or practice that applies to everyone disadvantages a particular protected characteristic. For example, where an employer requires all employees to be at work at 9am, which is difficult for an employee with impaired mobility.
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When an employer discriminates against a disabled person, i.e. treats them less favourably because of something arising as a consequence of their disability. For example, where someone with a known condition of schizophrenic is demoted because they have poor personal hygiene and other employees have complained.
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Harassment is said to have occurred if an individual behaves in a way which has the purpose or effect of violating another’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the disabled person concerned. In addition employees can now complain about such behaviour even if it is not directed at them.
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Employers are potentially liable for harassment of their staff by people they don’t employ, For example, employees of contractors. Employers become liable if the harassment occurs more than twice with the employers knowledge and they have not taken reasonable steps to prevent it.
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Someone is treated badly because they have made/supported a complaint or grievance under the Act.
CHANGES & RESPONSIBILITIES AT A GLANCE
Key points in the Act about disability
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Under the Act a person is disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities, which would include things like using a telephone, reading a book or using public transport. It should be noted where an impairment is likely to reoccur it is is to be treated as continuing e.g. mental health difficulties such as depression.
To qualify for protection from discrimination, a disabled person no longer has to show that their impairment affects a particular ‘capacity’ such as mobility or speech, hearing or eyesight. It will be easier for someone to show that they have difficulty carrying out their day-to-day activities.
The Act protects anyone who has, or in some circumstances, has had, a disability. The Act also protects a person from being treated less favourably because they are linked or associated with a disabled person. These people are now protected against direct discrimination and harassment.
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Some conditions continue to be excluded e.g.
- addiction,
- tendency to set fires
- tendency to steal
- tendency to abuse others
- exhibitionism
- voyeurism
- seasonal conditions such as Hay Fever
It is important to note that whilst these conditions are excluded the consequences of these conditions are included. For example cirrhosis of the liver is included, even though it has arisen from from an excluded condition i.e. alcoholism.
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The Act includes a new protection from discrimination arising from disability. It states it is discrimination to treat a disabled person unfavourably because of something connected with their disability and the unfavourable treatment cannot be justified (e.g. a tendency to make spelling mistakes as a consequence of their dyslexia). This type of discrimination is unlawful where the employer or other person acting for the employer knows or could reasonably be expected to know, that the person has a disability. An employer can justify this type of discrimination only if they can show that it is “a proportionate means of achieving a legitimate aim”, For example, the person is unable to perform a fundamental skill/activity for the business.
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Protection from indirect discrimination for disabled people is new. This means that a job applicant or employee could claim that a particular rule or requirement which is in place disadvantages people with the same disability. Unless the employer could justify this, it would be unlawful. See HR section for more information.
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A new provision makes it unlawful, except in certain circumstances, for employers to ask about a candidate’s health before offering them work. This means that it is now unlawful to ask people to complete a medical questionnaire as part of the selection process.
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Employers still have a duty to make reasonable adjustments for people to help them overcome any disadvantage they have resulting from their impairment.
Previously reasonable adjustments to premises and to policies, practices and procedures had to be made by service providers only where it would otherwise be ‘impossible or unreasonably difficult’ for a disabled person to use the service. Now, adjustments must be made where disabled people experience a ’substantial disadvantage’. This means that service providers may have to make more adjustments.
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Protection from disability-related harassment is new. Harassment is unwanted behaviour related to disability that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Employees can now complain of behaviour that they find offensive even if it isn’t directed at them or if they themselves are not disabled. Employees are also protected from harassment because of perception or association.
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It is unlawful victimisation for a service provider to treat someone badly because they have made a complaint about discrimination or harassment under the Act, or helped someone else to make a complaint. This applies whether or not the person being victimised is disabled. Now the victim only needs to show that they have been ‘treated badly’ as opposed to ‘treated less favourably’.
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The Act extends the power of employment tribunals so that it will now be possible for a tribunal to make recommendations that an organisation takes steps to eliminate or reduce the effect of discrimination on other employees, not only on the claimant.
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The new law makes it easier for employers and service providers to take Positive Action. If you think that employees or job applicants with a particular protected characteristic are at a disadvantage or if their participation in an activity is disproportionately low.
