The majority of the Equality Act’s provisions will come into force. It will be the single biggest piece of discrimination legislation ever to be introduced in the UK – drawing together all the important anti-discrimination laws introduced in piecemeal fashion since the 1970s.
The Act’s overarching ambition is to simplify and standardise the law to deliver a simple, modern and accessible framework which protects individuals from unfair treatment and promotes a fair and more equal society. Lisa Mayhew, partner in the London employment team of law firm Jones Day, comments on some of the key changes that the Act will introduce and how these might affect employers: ‘This will be the most far-reaching and comprehensive anti-discrimination legislation that has been introduced for many years. The act repeals and replaces the existing discrimination legislation relating to sex, race, disability, religion and belief, sexual orientation, age and equal pay with the aim of harmonising and strengthening the law in order to support progress on equality.
Discrimination and harassment based on association and perception. ‘One of the key changes will be the broadening of the definitions of direct discrimination and harassment to allow claims based on association and perception. This is intended to cover situations where the discrimination or harassment is because of the victim’s association with someone who has a protected characteristic (e.g. a disabled child) or because the victim is wrongly thought to have a protected characteristic (e.g. a particular religious belief). This change substantially widens the class of people able to bring a claim and is likely to result in a significant increase in the number of claims brought.’
Employers’ liability for the actions of third parties and employees: ‘In addition, the Act will allow an employee to bring a claim against their employer for the acts of a third party, such as a client, customer or colleague, where the employee has been harassed on at least two occasions and their employer is aware that it has taken place and has not taken reasonable steps to prevent it from happening again. These new provisions may, depending on how widely they are interpreted by the Tribunals, have the potential to bring about a major change in the claims which can be brought under the banner of ‘harassment’.
Pre-employment health questionnaires
The Act prohibits employers from asking questions about health or disability before making a job offer. There are a number of exceptions to this, including questions necessary to establish whether the applicant will be able to ‘carry out a function that is intrinsic to the work concerned’ (such as a warehouse job involving manual lifting of heavy items) and questions necessary to enable an employer to ascertain whether reasonable adjustments will be necessary at interview. In reality, these changes may have limited impact, given that most employers do not make enquiries about health and disability until after a job offer has been made.
The Act makes secrecy clauses which prevent employees from discussing their pay unenforceable where the pay disclosure is made with the possibility of pay discrimination in mind. The Act does not ban the inclusion of such clauses in employees’ contracts (it only makes them unenforceable and protects employees against victimisation following a relevant pay disclosure). Employers will continue to be able to require employees to keep their pay rates confidential (e.g. from competitor organisations).
Gender pay gap reporting
Perhaps the most controversial addition to the Act is the provision in relation to gender pay gap reporting. As currently drafted, the government may require large employers (with 250+ employees) to publish information about pay for the purpose of showing whether there are differences between the pay of men and women. The information to be published has not been specified in the Act. However, the government has made it clear that these provisions will not be introduced before 2013, yet, it remains to be seen whether they will be introduced at all.