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The The Equality Act, which came into force on October 2010, provides the legal framework for discrimination law in England, Scotland and Wales.
This guide covers the following topics:
The Equality Act outlaws discrimination for the following nine protected characteristics – age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
It replaces all previous equality law including the Equal Pay Act, the Sex Discrimination Act, the Race Relations Act, the Disability Discrimination Act and the regulations outlawing discrimination on the basis of age, religion or belief and sexual orientation, as well as all other related legislation.
The act applies to all employers and anyone providing a service (for instance organisations that provide goods or facilities to the public) or exercising a public function. It also applies to anyone running a private club or association. All job applicants and employees are protected, as are workers (including contract workers). It also covers the self-employed who are personally engaged to do the work.
Direct discrimination
This is when someone with a protected characteristic is treated less favourably than someone else who does not have a protected characteristic.
Associative discrimination
This is the same as direct discrimination, but applies to someone because of their association with a person who has a protected characteristic (such as the mother of a disabled child). This provision does not apply specifically to the protected characteristic of pregnancy and maternity, although it may be possible to argue that a worker treated less favourably because of their association with a pregnant woman amounts to associative sex discrimination.
Perceptive discrimination
This is the same as direct discrimination but applies to someone who is discriminated against because another person thinks they possess a particular protected characteristic. This provision does not apply to the protected characteristic of marriage and civil partnerships or pregnancy and maternity.
Indirect discrimination
This is when an employer applies a provision, criterion or practice (PCP) equally to everyone, but which in fact puts (or would put) people with a protected characteristic at a particular disadvantage compared to those who do not share that characteristic, and which cannot be justified by the employer.
Indirect discrimination can only be justified if the employer can show that the PCP is a proportionate means of achieving a legitimate aim.
The provisions on indirect discrimination do not apply to pregnancy and maternity.
Discrimination arising from disability
This is when an employer knows that someone has a disability, and discriminates against them because of something relating to or arising from their disability which cannot be justified.
Duty to make adjustments
Employers have a duty to make reasonable adjustments for disabled people in three circumstances:
Harassment
Harassment is defined as “unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual”.
The provisions on harassment do not apply to the protected characteristics of pregnancy and maternity or marriage and civil partnerships. However, someone subject to harassment related to these protected characteristics may be able to bring a claim of harassment related to sex and/or sexual orientation.
People at work can complain about behaviour that they find offensive even if they do not have the protected characteristic themselves. So, for example, witnesses to harassment may be protected.
The act specifically prohibits three types of harassment:
Third party harassment
Although the government repealed the provision whereby employers could be found liable for harassment by third parties in October 2013, it may still be possible to bring a claim under the general provisions on harassment.
Victimisation
This is when an employee is treated badly because they have done or may do a protected act.
Examples of protected acts include:
The person complaining of victimisation has to have acted in good faith when doing a protected act. A false allegation will not amount to a protected act.
Equal pay
The act says there shall be no sex discrimination in pay (for more detail, see our guide on equal pay). If there is no actual comparator doing equal work but there is evidence of direct sex discrimination in pay, a person can bring a claim.
If the claimant can provide evidence showing that they would have been paid more if they were of a different sex, they can still bring their claim, even if there is no-one of the opposite sex doing equal work in the organisation.
Pay secrecy
The act says that employers cannot stop their employees from having a discussion about whether there are differences in their pay related to protected characteristics. It also outlaws “gagging clauses” in people’s contracts.
However, employers can stipulate that employees keep pay rates confidential from certain groups outside the workplace, for example competitor organisations.
Gender pay reporting
The act allows for compulsory pay audits for organisations with more than 250 employees from 2013, although given the government’s preferred voluntary approach, it is not clear when or if this section will be enacted.
However, it has decided to introduce a power for employment tribunals to order compulsory gender pay audits when an employer has been found to have discriminated on the ground of sex. Micro-businesses with fewer than 10 employees will be exempt. It is not yet clear when it will exercise that power.
Public bodies such as local government, the NHS and those carrying out public functions are under a duty to consider equality when making day-to-day decisions both in terms of service delivery and employment. This consists of a general duty and specific duties.
The general duty has three aims and requires public bodies to have due regard to the need to:
The specific duties are designed to help public bodies comply with the general duty. The specific duties for devolved public authorities are different in England, Wales and Scotland. Trade unions should therefore check that the employer is complying accordingly.
The act allows employers to treat someone with a protected characteristic more favourably during the recruitment or promotion process.
If they think that the person with a protected characteristic has a reasonable chance of being disadvantaged because of that characteristic (or there are fewer people with a particular protected characteristic employed), they can choose that person over someone who does not have the characteristic provided that:
An employer must not ask about a job applicant’s health or whether they have a disability until they have either been offered a job or been included in a pool of successful applicants.
However, this is not a blanket ban and an employer can ask questions about whether a person has a disability before offering a job to an applicant if it will help them to:
Under the act, tribunals can recommend that organisations take steps to eliminate or reduce the effect of discrimination on other employees, not just the claimant (with the exception of equal pay claims).
The government announced in May 2013 that it will repeal this provision but has not, as yet, indicated when this will be.
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