19 March 2019 - Article
The majority of the provisions of the Equality Act 2010 (‘the Act’) will come into force on 1 October 2010.
The Act, intended to harmonise the current assortment of legislation addressing discrimination across various strands (or, in the language of the Act, ‘protected characteristics’), includes:
- a consolidated framework of protection against direct and indirect discrimination, harassment and victimisation in a range of fields (including, in addition to work/employment, services, public functions, premises, education, transport and associations);
- widening the scope of direct discrimination explicitly to protect those who are associated with someone who has, or who are themselves perceived to have, a protected characteristic;
- harmonising the legal test for indirect discrimination across all ‘protected characteristics’ and widening the scope of indirect discrimination in respect of disability;
- a new statutory concept of ‘discrimination arising from disability’;
- extending the range of circumstances in which an employer may liable for harassment of employees by third parties;
- restricting the circumstances in which employers may ask job applicants questions about their health prior to making a job offer;
- restricting the circumstances in which employers may rely on pay secrecy clauses. However the widely reported new provisions on gender pay reporting will not become law just yet.
The protective regime of the Act will apply where:
- an act carried out before 1 October 2010 is unlawful under previous discrimination legislation;
- the act continues on or after 1 October 2010; and
- the act is also unlawful under the Act.
In other words, where a continuing act of discrimination straddles 1 October 2010, the employee can claim under the Act in respect of the whole period of discrimination, without having to rely on the old law.
However, the previous discrimination legislation will not entirely disappear overnight. Transitional provisions confirm that the Act does not apply to discriminatory acts taking place wholly before 1 October 2010. Employees may still bring claims in respect of such acts under the outgoing legislation, even if their claim is lodged after the Act has taken effect.
Action points for employers
Employers would be well advised to consider their current policies (in particular equal opportunities policies and procedures) to ensure that these are up-to-date and consistent with the Act. Further, employers who prepare and issue compromise agreements in-house should seek advice to ensure that their standard form agreement encompasses all relevant current claims.