Blake lapthorn Equality Act 2010 presentation on 17 November 2010


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Blake Lapthorn's Employment team held a seminar on the Equality Act 2010 at its London office on 17 November 2010.

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Blake lapthorn Equality Act 2010 presentation on 17 November 2010

  1. 1. The Equality Act 2010 demystified Stephanie Slanickova Oliver Weiss 17 November 2010
  2. 2. The Equality Act 2010 History and purpose of Act Protected characteristics Discrimination: the key concepts
  3. 3. History and purpose Consolidate and harmonise existing anti- discrimination law Strengthen previous law Advance equality of opportunity
  4. 4. The “Protected Characteristics” Change Disability Gender reassignment Race (sections 4 to 12) No change Age Marriage and civil partnership Pregnancy and maternity Religion or belief Sex Sexual orientation
  5. 5. Discrimination: the key concepts Direct discrimination (change) (section 13) – A discriminates against B if, because of a protected characteristic A treats B less favourably than A treats or would treat others
  6. 6. Direct discrimination: discrimination by association No longer because of “B’s” protected characteristic Association need not be permanent Previously existed for race, religion/belief and sexual orientation (and, through case law, disability) Now applies to all protected characteristics except: – does not apply to marriage/civil partnership or to pregnancy/maternity
  7. 7. Direct discrimination: discrimination by perception Discrimination by perception – mistaken belief Previously existed for age, race, religion/belief and sexual orientation Now applies to all protected characteristics except: – does not apply to marriage/civil partnership or to pregnancy/maternity Direct discrimination: no defence other than for direct age discrimination
  8. 8. Indirect discrimination (section 19) A applies a provision, criterion or practice (PCP) which is discriminatory in relation to a protected characteristic of B What is new?
  9. 9. Indirect discrimination cont. PCP is discriminatory if: – A applies it or would apply it to persons with whom B does not share the characteristic – PCP puts or would put persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share the characteristic – PCP puts or would put B at that disadvantage and – A cannot show it to be a proportionate means of achieving a legitimate aim
  10. 10. Indirect discrimination cont. “would be” – now potentially covers job applicants who would have applied for the vacancy Extended to cover disability and gender reassignment Does not cover pregnancy/maternity
  11. 11. Harassment Change: new wider definition (section 26) A person (A) harasses a person (B) if A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. Covers all strands except marriage/civil partnership and pregnancy/maternity
  12. 12. Harassment cont. Does the unwanted conduct have that effect or purpose? Must take into account: – perception of person alleging harassment – other circumstances of the case – whether it is reasonable for the conduct to have that effect Covers associative and perceptive harassment
  13. 13. Harassment cont. Third party harassment (section 40) “Three strike provision”: if an employer knows employee has been harassed by a third party on at least 2 other occasions and hasn’t taken reasonably practicable steps to prevent it Need not be same third party Previously only sexual and sex-related harassment Extended to cover all protected characteristics (except marriage/civil partnership and pregnancy/maternity)
  14. 14. Victimisation (section 27) Subjecting a worker to a detriment because the worker has done a “protected act” or the employer believes that the worker may do a “protected act” in the future
  15. 15. Victimisation cont. “Protected Act”: – bringing proceedings under the Equality Act – giving evidence in connection with proceedings under the Equality Act – doing anything which is related to the provisions of the Equality Act – making an allegation that another person has done something in breach of the Equality Act – making or seeking a “relevant pay disclosure” to or from a colleague (including a former colleague)
  16. 16. Equal Pay Same legislative framework However, changes elsewhere in the Equality Act affecting equal pay matters: – pay secrecy clauses – protection under “victimisation” – actual comparator no longer required – direct sex discrimination
  17. 17. Instructing, causing and inducing (section 111) Harmonisation and extended protection – all protected characteristics Unlawful for a person (A) to instruct, cause or induce another person (B) to discriminate against, harass or victimise a third person (C), or to attempt to do so
  18. 18. Aiding (section 112) (A) must not knowingly help (B) to discriminate, harass or victimise
  19. 19. Remember... Protection in relation to fixed-term and part-time working still exists Default retirement age – to be phased out in April 2011: – retirement procedure to be abolished – transitional arrangements 06/04/2011 to 01/10/2011
  20. 20. Disability Discrimination Definition of disability Differences in scope of protection New rules regarding pre-employment health enquiries
  21. 21. Old Position Disability Discrimination Act 1995 (DDA) Reason related to disability Duty to make reasonable adjustments Complicated case law
  22. 22. Definition of Disability under Equality Act 2010 (section 6) A person (P) has a disability if – (a) P has a physical or mental impairment, and (b) The impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.
  23. 23. No longer a requirement to show that impairment affects one of 8 specified capacities: – mobility – manual dexterity – physical co-ordination – continence – ability to lift, carry or otherwise move everyday objects – speech, hearing or eyesight – memory or ability to concentrate, learn or understand or – perception of the risk of physical danger Definition of Disability cont.
  24. 24. Includes person who has had a disability Deemed disabilities: – cancer, HIV and multiple sclerosis – blindness, severe sight impairment Certain conditions excluded: – tendency to set fires – tendency to steal – tendency to physical or sexual abuse of other persons – exhibitionism – voyeurism Definition of Disability cont.
  25. 25. Direct Disability Discrimination Disability one of the protected characteristics (section 13) Direct discrimination occurs where a person (A) treats another (B) less favourably than A treats or would treat others No discrimination where disabled person is treated more favourably than a person who is not disabled Nearly identical to direct discrimination provisions existing under the DDA
  26. 26. Discrimination Arising From Disability New Provision inserted by Equality Act (section 15): A person (A) discriminates against a disabled person (B) if – (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
  27. 27. Discrimination Arising From Disability cont. Replaces the position under DDA which referred to “for a reason relating to disability” No comparator needed Addresses difficulties posed by Clark v Novacold and Lewisham v Malcolm decisions No discrimination if employer did not know and could not reasonably have known that employee had the disability
  28. 28. Indirect Disability Discrimination New provision inserted by Equality Act (section 19): A person (A) discriminates against another (B) if: – A (the employer) applies or would apply a provision, criterion or practice (PCP) to B – B has a disability – PCP puts or would put persons with B’s particular disability at a particular disadvantage compared with others – PCP actually puts or would put B at a disadvantage and – employer cannot show that the PCP in question is a proportionate means of achieving a legitimate aim
  29. 29. Indirect Disability Discrimination cont. “Provision, Criterion or Practice”- PCP – New concept in disability discrimination law – Examples Applies to specific disability of employee
  30. 30. Duty to make Reasonable Adjustments (section 20) A duty on employers to make reasonable adjustments to premises or working practices to help disabled employees/applicants The duty arises in three different circumstances: – where a provision, criterion or practice puts a disabled person at a substantial disadvantage – a physical feature puts a disabled person at a substantial disadvantage – where a disabled person would but for the provision of an auxiliary aid be put at a substantial disadvantage the employer must take reasonable steps to provide the auxiliary aid
  31. 31. Duty to make Reasonable Adjustments cont. The first two replicate the old law Obligation to provide auxiliary aid is new feature of the Equality Act Duty includes taking steps to ensure that information is provided in accessible format Only applies where employer knows or ought reasonably to know of disability
  32. 32. Enquiries about Disability and Health (section 60) Prohibited to ask about health of applicant before job offer is made Specific exceptions – candidate participation in assessment – reasonable adjustments to recruitment process – function intrinsic to job – monitoring diversity – specific disability a requirement of the job
  33. 33. Summary and Conclusions Significant changes – Equality Act applies from 1 October 2010 and any acts of discrimination occurring after this time, even if they started before 1 October, will come under the new law Likely to be increased litigation in early stages – new concept of discrimination arising from disability – new definition of indirect disability discrimination – new much broader definition of harassment – associative and perceptive discrimination applies to most protected characteristics
  34. 34. Summary and Conclusions But no need for undue concern! – most employers who currently operate best practice are not likely to fall foul of the majority of the Equality Act’s provisions. See it as an opportunity to review policies and training Practical steps for employers – review and update policies and procedures – consider additional training for staff and be wary of employees who cross the line- you as employer will be held responsible for their actions unless you can show you took sufficient steps!
  35. 35. Drinks and questions