On 1 October 2010, the Equality Act 2010 (the 2010 Act) arrived with a bang. It is the biggest development in discrimination law in recent years and has received its fair share of press coverage. Below is a checklist of what is new and what is yet to come.
New law
According to the government, 90% of the provisions of the 2010 Act are currently in force. The key provisions for employers to be aware of are:
- The ‘basic framework’ of protection against direct and indirect discrimination, harassment and victimisation. Six protected characteristics remain (sex, race, age, sexual orientation, religion or belief, and disability) but the provisions applying to these characteristics have been harmonised. In particular, this has included the extension of indirect discrimination to cover disability.
- Provisions seeking to protect those who are discriminated against as a result of a protected characteristic of another person (associative discrimination).
- The introduction of prevention of discrimination as a result of a perception that a person (or someone associated with them) has a protected characteristic (perceived discrimination).
- The new concept of ‘discrimination arising from disability’, which seeks to address the problems with disability-related discrimination, resulting from the House of Lords decision in London Borough of Lewisham v Malcolm [2008] (see IHL179, p34).
- Provisions making pay secrecy clauses in contracts unenforceable.
- Provisions restricting the circumstances in which employers can ask job applicants questions about disability or health.
What are we waiting for?
The coalition government has indicated that it is still considering several key provisions, including the following:
- dual discrimination;
- the requirement that employers publish gender pay gap information; and
- provisions allowing positive action in recruitment and promotion, which is intended to enable employers to favour candidates with a protected characteristic over an equally qualified candidate without this characteristic, in certain circumstances.
There is no indication of when the government will conclude these considerations and (at the time of writing) it is not clear when we can expect these provisions to come into force, if at all. However, there are certainly enough changes for employers and legal advisers to consider in the meantime.
For a more detailed examination of the provisions of the 2010 Act, please see IHL181, p32.
By Will Winch, solicitor, and Laura Garner, solicitor, Mishcon de Reya.
E-mail: will.winch@mishcon.com;
