Equality Act 2010

Equality Act 2010 TPP Breakfast Seminar Tuesday 26 October 2010

Equality Act 2010: What’s in force? • Consolidation of “protected characteristics” • Harmonisation of definitions • Direct Discrimination • Indirect Discrimination • Harassment • Victimisation

Protected Characteristics • Age • Disability • Gender Reassignment status • Marriage or Civil Partnership • Sex, Pregnancy and Pregnancy related illness • Race, Colour, Nationality, Ethnic or national origins • Religion or religious or philosophical Belief or lack of Religion or lack of religious or philosophical Belief • Sexual orientation (heterosexual, bisexual or homosexual)

Direct Discrimination Section 13 “A person (A) discriminates against another (B) if, because ofa protected characteristic, A treats B less favourably than A treats or would treat others” i.e. not B’s characteristic i.e. can be by association or by perception

Direct Discrimination Section 13 Age – Proportionate/legitimate defence still in place Marriage or Civil Partnership – still only protects married/partnered Sex – Still doesn’t include breast-feeding in employment context Sex – Men still can’t claim where women have special treatment in connection with pregnancy or childbirth Disability – still allowed to positively discriminate in favour of disabled people Section 24 – irrelevant for direct discrimination whether discriminator is of same protected characteristic

Indirect Discrimination Section 19 “A person (A) discriminates against another (B) if A applies to B a provision criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s”

Disability Related Discrimination Section 15 The DDA “3rd Category” of Discrimination remains A treats B unfavourably because of something arising in consequence of B’s disability A cannot show treatment is a proportionate means of achieving a legitimate aim i.e. no comparator here.

Duty to make adjustments… Section 20 The DDA duty remains re disabled person (DP) • PCP or Physical feature puts DP at substantial disadvantage re relevant matter , duty to take such steps as reasonable to remove disadvantage • Where DP would but for provision of auxilliary aid be put at a substantial disadvantage re relevant matter duty to provide the aid.

PCP is discriminatory if… • A applies or would apply it to persons with whom B does not share the characteristic • It 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 it • It puts B at that disadvantage • A cannot show it to be a proportionate means of achieving legitimate aim

Harassment Section 26 A engages in unwanted conduct related to a relevant protected characteristic and the conduct has purpose OR effect of • Violating B’s dignity OR • Creating intimidating hostile degrading humiliating or offensive environment for B NB 3rd Party harasses B at work and A fails to take reasonablly practicable steps to prevent it NB N/A to marriage or civil partnership NB Protects employees and job applicants

Victimisation Section 27 A victimises B if A subjects B to a detriment because • B does a protected act or • A believes B has done or may do a protected act Protected Act = • Bringing proceedings under the Act • Giving evidence or information re proceedings under the Act • Doing any other thing re the Act • Making an allegation whether or not express that A or another has contravened act [Links to Public Interest Disclosure]

Health Questionnaires Section 60 A must not ask job applicant B about B’s health or disability before offering work to B or before including B in a pool of candidates from whom A intends to appoint in future. Breach is NOT enforceable in ET ECHR can bring proceedings

Exceptions Section 60 (6) Can ask re health or disability pre-offer: • To establish if fit enough to undergo testing for the job • To establish if able to carry out function intrinsic to the role • To positively discriminate in favour of people with disability

Pay Secrecy Clauses Section 77 Contracts stopping P from disclosing or seeking to disclose P’s work terms or from seeking info from colleague re their terms, unenforceable in relation to Relevant Pay Disclosure. RPD – if made to determine if there is a connection between pay and a particular protected characteristic.

Equality Act 2010: What are we waiting for? • Gender pay gap information • Positive action • Dual discrimination

Thank You James Lynas Consultant jlynas@wslaw.co.uk T 020 7593 5175 Solicitors Parliamentary Agents Minerva House 5 Montague Close London SE1 9BB DX 156810 London Bridge 6 T 020 7593 5000 F 020 7593 5099 www.wslaw.co.uk

Equality Act 2010