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Equality Act widens scope of discrimination law

27 September 2010

The core provisions of the Equality Act 2010, which gathers the different strands of discrimination law into a single statute and widens its scope, will be implemented later this week.

A commencement order published last week confirmed that the bulk of the Act will come into force on Friday 1 October.

People with ‘protected characteristics’, such as gender, race, disability and sexual orientation, will all get additional protection.

Under the Act, workers cannot be discriminated against either because they are perceived as having a protected characteristic or because they are associated with someone who has a characteristic.

Questioning of job applicants by employers on their sickness records will be lawful only in exceptional cases.

As expected, the most controversial changes, such as positive action in recruitment or the public sector ‘socio-economic’ duty, have been postponed.

Others, such as the public sector general equality duty, are likely to be implemented in a watered-down form (see solicitorsjournal.com, 6 September 2010).

James Davies, joint head of employment at Lewis Silkin, said the biggest impact would be in the area of disability discrimination, where the Act would make things easier for claimants.

“More of the Act has survived than we expected when we knew we were going to get a coalition government,” Davies said.

He said the decision to delay implementation of positive action on recruitment and promotion was not at all surprising.

“Of all the things we knew the Tories were opposed to, this, together with the socio-economic duty, was top of the list.

“Though I have some sympathies, I think the positive action proposal is confused. There is very little scope under EU law to positively advantage under-represented groups.

“No employer in his right mind would rely on the equality ‘tie breaker’ and open themselves up to legal challenge. It is misconceived and few lawyers will be sorry to see it disappear into the dustbin.”

James Townsend, partner at BP Collins, described the Equality Act as “ground-breaking” and said employment tribunals would get wider powers to make recommendations.

“It’s a pretty big change,” he said. “No one really knows what will happen. The legislation will need to bed down and no doubt be open to different interpretations.”

Annabel Mackay, solicitor in the equality team at Addleshaw Goddard, said one of the biggest changes for employers would be the new rules on pre-employment health inquiries.

Mackay said asking candidates about their sickness records before making offers could lead to enforcement action by the Equality Commission.

She said the Malcolm ruling had made it hard to bring claims for disability-related discrimination, but the Act would make it easier by introducing a new test for “discrimination arising from disability”.

Mackay said if workers had been treated unfairly for a reason related to their disability, they would no longer have to base their arguments on a comparator.

“The employer will have to show that the treatment was objectively justified or that he did not know you were disabled,” she said.

However, she said it would be more difficult to bring a claim for “indirect discrimination” on the grounds of disability and prove you were member of a group which was being discriminated against.

“There’s been so much publicity around the Act that it has raised awareness which could lead to an increase in the number of claims. In the long term, it will be helpful to have everything in the same place.”

Mackay predicted that, following a rise in claims after implementation of the Equality Act, the number was likely to drop as employers became more familiar with its provisions.

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