The Equality Act 2010 harmonizes UK discrimination law and strengthens protections against discrimination. It introduces new protected characteristics like gender reassignment and pregnancy/maternity. Public bodies must now consider socio-economic inequalities in strategic decisions. The Act also widens the definitions of direct and indirect discrimination and expands protections outside of work.

1. The Equality Act 2010 25 June 2010

2. Equality Act 2010 2 main purposes of the Act: To harmonise discrimination law To strengthen the law to progress on equality ..resulting in general benefits to the economy [16 Parts, 28 Schedules, 218 Sections!]

3. In summary: New socio-economic duty (public bodies) Widens scope for voluntary positive actions Integrated equality duty – to include procurement activities Empower tribunals to make wider recommendations New PCs: gender reassignment and pregnancy/maternity Dual discrimination Widens scope of age discrimination Power to require gender pay gap reporting (private sector) Extends protection against harassment outside the workplace Equality Act 2010

4. Equality Act 2010 The new ‘socio-economic duty’ - will it survive? Public bodies (not direct to front-line services) Strategic decisions To consider how decisions might help to reduce inequalities associated with socio-economic disadvantage Judicial review Examples

5. Equality Act 2010 The Protected Characteristics: Age Disability (changed) Gender reassignment (changed) Marriage and civil partnership Race (including caste – new) Religion or belief Sex Pregnancy/maternity Sexual orientation

6. Equality Act 2010 Gender reassignment No longer required to be under medical supervision Where a person has proposed, started or completed a process to change sex Caste discrimination Power to add ‘caste’ to definition of ‘race’ Arguably already included National Institute of Economic and Social Research

7. Equality Act 2010 Pregnancy and maternity discrimination Extended to non-work cases: in relation to public functions, education and to associations Examples

8. Equality Act 2010 Simplifying & standardising definitions and concepts Direct discrimination: association and perception Uniform definition of indirect discrimination No need for comparator in all victimisation claims Extends protection from discrimination

9. Direct Discrimination - Association and Perception Occurs where A treats B less favourably than others ‘because of’ a protected characteristic Exception: in marital or civil partnership cases, the PC must be that of the complainant Protection extended to apply in areas where it does not exist Harassment as well Equality Act 2010

10. Equality Act 2010 Definition of ‘Indirect Discrimination’ “ Where a policy disadvantages a group of people with a PC, a person in that group is indirectly discriminated against if they are put at that disadvantage unless policy can be justified…. ...i.e. if it is a proportionate means of achieving a legitimate aim” Harmonised Extended to disability and gender reassignment But not pregnancy/maternity

11. Equality Act 2010 Dual Discrimination Claims in relation to combination of two PCs Where single strand unlikely to succeed Not marriage and civil partnership or pregnancy/maternity discrimination Examples NB. Public sector equality duty: due regard to the need to eliminate unlawful dual discrimination

12. Equality Act 2010 Disability Discrimination Definition Pre-employment health enquiries Discrimination arising from disability … and indirect discrimination Reasonable adjustments

13. Equality Act 2010 Pre-employment health enquiries The rule: ban on making enquiries The 6 exceptions

14. Equality Act 2010 Discrimination arising from disability “ Where a disabled person is treated unfavourably because of something arising form, or in consequence of their disability, unless treatment can be justified… … i.e. if the treatment is a proportionate means of achieving a legitimate aim” Post- Malcolm No need for a comparator .. and disability covered by indirect discrimination.. Examples

15. Equality Act 2010 Reasonable adjustments Taking reasonable steps to provide auxiliary aids Including the provision of information in accessible format

16. Equality Act 2010 Equal Pay – most in need of reform, but least reformed! Secrecy clauses - Not allowed to discuss pay with colleagues unless discussion aimed at establishing if discrimination (‘relevant pay disclosure’) Gender pay reporting – which way will the Government go? Power to make regulations requiring private sector employers 250+ employees to publish information Compulsory pay audits or only when lose at ET?

17. Equality Act 2010 Positive Action Permits positive action in recruitment and promotion In specific situations – limited scope Voluntary Coalition Government’s approach?

18. Equality Act 2010 Public Sector Equality Duty New single equality duty All PCs except marriage and civil partnership Due regard to the need to advance equality of opportunity and foster good relations Provides significant rationalisation benefits..

19. Equality Act 2010 Territorial jurisdiction Employees employed in Great Britain at the time of dismissal Expatriate employees, e.g. foreign correspondents, or working in British enclave Narrower scope

20. Equality Act 2010 Enforcement and Remedies Tribunal can make recommendations to benefit wider workforce and help prevent discrimination Does not apply to equal pay claims ***** Burden of proof: employee has to establish prima facie case, then employer has to prove not guilty Drawing inferences

21. Contact: Sarah Pugh WH Law LLP Solicitors Finch House 28-30 Wolverhampton Street Dudley West Midlands DY1 1DB Tel.: 01384 453383 Email: sepugh@whlawllp.co.uk