A most important part of the Equality Act 2010 is section 13 which extends discrimination law to cover discrimination by ‘association’. Subject to the caveat that it may be delayed (see recent post on coalition government proposals) the main parts of the Act are likely to come into force in October 2010 and April 2011. In general the Act has the support of all the main political parties and therefore implementation of most of it, including this ‘discrimination by association’ provision, will not be affected by the recent change of government.
Traditionally, an employee could only succeed in a claim for unlawful discrimination if he or she had been discriminated against by reason of his or her sex, race, disability or age etc. When the new Act comes into force he or she will be able to succeed in a claim against his or her employer if the discrimination has been simply because of a ‘protected characteristic’ – which may be a third party’s sex, race, disability or age etc.
This change implements EU law as interpreted by the European Court in July 2008. The European Court stated that the EU Directive of November 2000 “establishing a general framework for equal treatment in employment and occupation…must be interpreted as meaning that the prohibition of direct discrimination laid down by those provisions is not limited only to people who are themselves disabled”.
Although this statement of the law by the European Court was in the context of a disability discrimination case it relates also to other forms of unlawful discrimination. This is because Article 1 of the Directive, to which the Court specifically referred, applies to “discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation“.
The European Court’s ruling can already be relied on by civil servants because EC law is directly applicable to employees of public authorities if it is sufficiently clear and precise. The European Court’s ruling can also already be relied on by private sector employees in relation to Disability Discrimination because this was specifically stated to be so by the EAT in 2009. The EAT was giving its decision in a case in which a healthy employee suffered a detriment at work because she was caring for her disabled son. The EAT held that the employer had acted in breach of the Disability Discrimination Act even though to achieve this result, and therefore to achieve conformity with EU law, the EAT somewhat controversially rewrote the relevant part of the Act.
As from the date of coming into force of the Equality Act 2010 (whenever that may be) the new rule will expressly apply to all ‘protected characteristics’.
One consequence could be, for example, that an employee disciplined for consistently arriving late at work might have a claim for age discrimination if the reason for the late arrival was that they were caring for an elderly parent – although, at least in an age discrimination case, there is provision for the employer to escape liability if he can show that the discipline was justified and proportionate.
The Equality Act 2010 is not just a consolidation of existing statutes. Of course it is that, and thus will eventually simplify the law and is therefore ‘good news’. However, as the example above shows, the Act also makes some important changes to the law. It is clear that it would be prudent for anyone potentially affected to contact us for expert advice on the implications for them, preferably well before October 2010 or at any rate before April 2011, the dates on which most of the Act is due to come into force.