Discrimination law is a complex area and one that union reps need to keep up to date with. This booklet explains how discrimination law works in practice and sets out the important changes brought in by the Equality Act 2010.
The UK has had legislation outlawing discrimination since the 1970s. Initially, it was only discrimination on the grounds of sex that was covered (under the Sex Discrimination Act 1975), but this was soon followed by legislation outlawing discrimination on the grounds of race or ethnic origin (the Race Relations Act 1976). Discrimination on the grounds of disability was not made unlawful until 1995, with the Disability Discrimination Act of that year, and in 1999 discrimination against transgendered people was made unlawful.
A European Union directive establishing a general framework for equal treatment in employment required the UK government to pass laws providing discrimination protection in new areas. In December 2003, discrimination on the grounds of sexual orientation and discrimination on the grounds of religion or belief were both outlawed. And in October 2006 discrimination based on age was made unlawful.
However, the different tests for, and defences to, various types of discrimination caused confusion and uncertainty. This was especially as more personal characteristics fell under the scope of anti-discrimination legislation and the case for simplification and harmonisation became overwhelming.
The response of the Labour government was the Equality Bill. In addition to administrative tidying up, the Bill contained important enhancements to workers’ rights. Even though some of the progressive aspects of the proposed legislation met resistance in the House of Lords, just before the change of government in May 2010, a version of the Bill finally received royal assent and became the Equality Act 2010.
A number of significant aspects of the Equality Act 2010 came into force on 1 October 2010:
New harmonised definitions of discrimination apply to the protected characteristics of age, disability, gender reassignment, marital/civil partnership status, race, religion/belief, sex and sexual orientation. In particular, the definition of direct discrimination is now where someone suffers less favourable treatment because of a protected characteristic.
This definition is sufficiently wide to cover discrimination by association — where an individual is discriminated against because of their connection to someone who has a protected characteristic. It is also wide enough to cover perceptive discrimination — where an employee is treated less favourably because s/he is believed (incorrectly) to have a protected characteristic.
Indirect discrimination (for all characteristics) now occurs where a provision, criterion or practice operated by an employer is (or would be) particularly disadvantageous to people with a protected characteristic.
Protection against victimisation and harassment are extended. In particular third party harassment is outlawed. This is where a third party, such as a customer of, or supplier to, an employer harasses an employee on three occasions or more.
The Act notably strengthens the rights of the disabled. In addition to the duty on employers to make reasonable adjustments, as well as concepts of direct and indirect discrimination, there is a new offence of “discrimination arising from disability”. This additional provision can be used where a disabled person is treated unfavourably because of something arising in consequence of their disability.
Furthermore, employees are now, except in certain limited circumstances, exempt from having to reveal medical information to prospective employers. Employer attempts to prevent employees discussing how much they are paid are void too: this should make it easier for individuals to find out whether they have an equal pay claim.
Finally, tribunals and public authorities have new powers and duties. Tribunals can make recommendations about steps employers who have lost discrimination cases should take. In carrying out their functions, public authorities need to take into account the situation of all protected groups (except on marriage/civil partnership grounds).
Specifically, as of April 2011 it is intended that there will be a new broader public sector equality duty. Under this provision public authorities are required to have due regard to the need to eliminate discrimination, harassment, victimisation and so on, as well as advancing equality of opportunity and fostering good relations between those with and without protected characteristics. However, public authorities will not be compelled to act (as originally intended by the Labour government) with a view to reducing socio-economic inequalities.
Unfortunately, other provisions, on equal pay reporting in the private sector, dual discrimination and enhanced positive action, are indefinitely suspended.
As this booklet will explain, discrimination law is complex, making it very important that workplace representatives and union activists are fully aware of the implications of the law. They also need to know what steps should be taken to ensure that their members benefit fully from the legal rights they now have.
This booklet deals with discrimination in employment and does not deal with equal pay law as the structure of that legislation differs from the rest of discrimination law. Nor does it cover discrimination (victimisation) on the grounds of trade union membership, which is explained in LRD’s annual guide, Law at work.