Much ink has been spilt over the Equality Act 2010 – there has been seemingly endless speculation on the progress of the Act and what its final form might mean for HR. To take stock of where we have got to with the Act, David Widdowson focuses on which provisions now apply, what is still on hold, and what action you should be taking now. A full Bevan Brittan briefing note on the contents of the Act is also available by emailing here.
In this article...
What is in force and when?
The Equality Act 2010
was passed shortly before the general election, with a planned commencement date of 1 October 2010. This date was placed in some doubt when the new coalition government was formed and there were hints that it may tweak some aspects of the Act, and / or postpone commencement. The ultimate fate of the entirety of the Act is still somewhat unclear but, at present, the position is as follows.
- The main employment provisions of the Act came into force on 1 October 2010, including the general discrimination framework, the partial prohibition on making health enquiries before offering employment, the general ‘positive action’ duty, pay equality, the ban on pay secrecy clauses and the extension of 3rd party harassment.
- Provisions which are not yet in force include:
- the public sector duty to promote socio-economic equality
- the private sector duty to publish gender pay gap information
- ‘dual’ discrimination (i.e. discrimination on the basis of having a combination of 2 protected characteristics)
- ‘positive action’ in recruitment or promotion (i.e. where membership of a disadvantaged group may be used as ‘tie-breaker’ between two equally well qualified candidates for employment)
- the revised public sector duty to promote equality.
The government is currently consulting on the revised public sector duty to promote equality, and it is expected that this provision will come into force next April.
Regarding the fate of the remaining outstanding provisions, the government has stated that it is ‘still considering’ these; so they may be amended, or delayed further, or not brought into force at all. It will, therefore, be a case of keeping an eye out for developments as they are announced.
The previous government decided not to implement the following proposals for the Equality Act.
- Removing the requirement for a comparator in direct discrimination claims
- Explicitly prohibiting discrimination against parents and carers (although this may be caught by the new prohibition against discrimination ‘by association’)
- A general constitutional right to equality.
For approximately a year from now, we will be operating in two ‘parallel universes’ in terms of discrimination law, as the new and old regimes run alongside each other:
- the old rules will continue to apply to acts which occurred wholly before 1 October 2010; but
- an act which occurs from 1 October 2010 onwards will be covered by the Equality Act 2010; and
- where a discriminatory act spans a period before and after 1 October 2010, then the new Act will apply. The Act confirms that an ‘act’ includes an omission.
Question: what’s over 300 pages long and will not be appearing on anyone’s Christmas gift book wish list? Answer: the Equality Act 2010 Code of Practice on Employment. On 12 October 2010, the draft Code of Practice was published by the Equality and Human Rights Commission and laid before Parliament. Apart from someone crossing out the word ‘draft’ on the front of the Code, it is unlikely that the government will make any changes to the current draft before it is formally adopted.
Why is the Code important? Because, in contrast to the non-statutory guidance, the Code may be taken into account by Employment Tribunals. And, until case law on the Equality Act starts to trickle through, it is likely that Employment Tribunals will turn to the Code for assistance with deciding how to apply the new regime. The Code also contains some practical examples of how each part of the Act is intended to work, so it’s also generally a useful document to keep to hand while getting to grips with applying the Act in the workplace.
Once you have familiarised yourself with the detail of the new regime, you need to:
- review and amend existing policies and procedures (in particular those relating to equal opportunities, recruitment and harassment)
- check that your policies cover the nine ‘protected characteristics’ set out in the Act: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation
- revise absence and disciplinary policies (or their application) so that allowances are made for individuals who may be protected under the expanded scope of protection from discrimination (i.e. not only those who have a protected characteristic themselves but are perceived to have, or are associated with, a protected characteristic)
- remove any clauses in your contracts of employment that prevent employees from discussing their pay (including bonuses)
- train managers to ensure that they are aware of the extended remit of the new legislation, particularly in relation to harassment against employees by a third party (such as a client or supplier)
- review recruitment processes and ensure that all staff involved in recruitment are aware of the new limitations on asking health related questions prior to an offer of employment being made
- public sector employers should ensure compliance with the revised duty to promote equality and keep tabs on the implementation (or otherwise) of the socio-economic duty.
As mentioned above, Bevan Brittan has produced a briefing note summarising the main provisions of the Act. If you would like a copy please email here.
The Employment team is also running a series of practical seminars on the Equality Act 2010, in Bristol, London and Birmingham. For more details and a booking form, please click here.
You may wish to download:
The Government Equalities Office’s website contains a useful Equality Act page, with updates on the latest news, answers to FAQs, and ‘quick start’ guides to the Act.
Acas has produced a wealth of information on the Equality Act pages of its website, including a handy ‘what’s new and what’s changed’ table.
The consultation document on the specific public sector duties (published by the previous government) contains details of the proposals.