Important legislation such as the Equal Pay Act 1970, the Sex Discrimination Act 1975, the Race Relations Act 1976, the Disability Discrimination Act 1995 are all repealed (and replaced) and regulations such as the Employment Equality (Age) Regulations 2006, the Employment Equality (Sexual Orientation) Regulations 2003 and the Employment Equality (Religion or Belief) Regulations 2003 are all revoked (and replaced).
The Equality Act 2010 replaces these previous anti-discrimination Acts and regulations with one single Act. It uses different wording and some different concepts from those used previously but makes only a few changes to the substance of existing law. This harmonisation (or maybe “Harmanisation” given the name of the Minister in charge of getting the Act through Parliament on 8th April, in the nick of time before dissolution) can only be welcome and getting it done is an impressive achievement.
The official Equality Act Impact Assessment says that “In the first year, the Equality Act is estimated to cost between £240.9m and £282.6m. This represents the cost of people making themselves familiar with the new law and one-off implementation costs of the Act” (the impact assessment also suggest that in the same year the Act could produce “benefits in the range of £101.6m to £133.6m”). HR departments and employers generally will have to review policies, contracts, job application forms and recruitment processes.
An important conceptual change is the introduction of the idea of “protected characteristics” ((i) age, (ii) disability, (iii) gender reassignment, (iv) marriage and civil partnership, (v) pregnancy and maternity, (vi) race (defined to include colour, nationality and ethnic or national origins), (vii) religion or belief, (viii) sex (ie gender) and (ix) sexual orientation). This change underlies the whole Act. It is important both as a matter of terminology and of “focus” which now centres on the protected characteristic rather than on the protected person. One result is that in general it no longer matters whether the “victim” of less favourable (ie discriminatory) treatment possesses the protected characteristic. Instead what now matters is whether the less favourable treatment is because of a protected characteristic, regardless of who it is possessed by. Thus what is sometimes called “associative discrimination” is now generally unlawful by statute (unless, in some cases, it can be justified) – for example discrimination against a fit employee because they have taken time of work to look after a disabled or elderly person is now generally unlawful by statute and ingenious legal arguments which led to contortions by tribunals attempting to achieve this result under the now repealed legislation are thus no longer relevant.
The Act outlaws various types of behaviour which take place because of one or more of the protected characteristics, as follows: direct (including associative and perceived) discrimination, indirect discrimination, a special category of “disability related discrimination”, harassment (including third party harassment) and victimisation.
This is an item from our October 2010 newsletter. If you are interested in subscribing to our monthly newsletter please click here.