Britain – The Equality Act 2010 – Where are we now?

[2010-09-02 Boyes Turner]

http://www.boyesturner.com/news-article.html?id=1163

Boyes Turner Employment lawyers for employers

2010-09-02 18.32

The Equality Act 2010 – Where are we now?

After much speculation, the Government will be bringing The Equality Act 2010 into force – albeit with some changes to public sector responsibilities which are currently the subject of consultation.

Unlike other pieces of legislation which come into force on a set date, the Equality Act 2010 needed Parliament to pass special legislation to bring it into being. This has now happened. On 06 July 2010 ministerial regulation-making powers and Equality and Human Rights Commission’s (EHRC) powers to issue codes of practice under the Act came into force allowing the government to issue subordinate legislation or guidance. This was followed with further ministerial regulation-making powers and government-issued codes of practice on 04 August 2010.

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When will it come into force?

It is anticipated that the Equality Act 2010 will come into force in various tranches, the first of these being 1 October 2010 when the follow pieces changes will take effect:-

• The basic framework of protection against direct and indirect discrimination, harassment and victimisation in services and public functions; premises; work; education; associations, and transport. This will replace the various separate pieces of discrimination legislation into one single Act of Parliament.

• Changing the definition of gender reassignment, by removing the requirement for medical supervision.

• Levelling up protection for people discriminated against because they are perceived to have, or are associated with someone who has, a protected characteristic, so providing new protection for people like carers.

• Clearer protection for breastfeeding mothers.

• Applying the European definition of indirect discrimination to all protected characteristics.

• Extending protection from indirect discrimination to disability.

• Introducing a new concept of “discrimination arising from disability”, to replace protection under previous legislation lost as a result of a legal judgment.

• Applying the detriment model to victimisation protection (aligning with the approach in employment law).

• Harmonising the thresholds for the duty to make reasonable adjustments for disabled people.

• Extending protection from 3rd party harassment to all protected characteristics.

• Making it more difficult for disabled people to be unfairly screened out when applying for jobs, by restricting the circumstances in which employers can ask job applicants questions about disability or health.

• Allowing hypothetical comparators for direct gender pay discrimination.

• Making pay secrecy clauses unenforceable.

• Extending protection in private clubs to sex, religion or belief, pregnancy and maternity, and gender reassignment.

• Introducing new powers for employment tribunals to make recommendations which benefit the wider workforce.

• Harmonising provisions allowing voluntary positive action.

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Provisions the Government is still considering:

• The Socio-economic Duty on public authorities – this is currently the subject to consultation. (see below)

• Dual discrimination.

• Duty to make reasonable adjustments to common parts of leasehold and common hold premises and common parts in Scotland.

• Gender pay gap information.

• Provisions relating to auxiliary aids in schools.

• Diversity reporting by political parties.

• Positive action in recruitment and promotion.

• Provisions about taxi accessibility.

• Prohibition on age discrimination in services and public functions.

• Family property.

• Civil partnerships on religious premises.

Ministers are considering how to implement these remaining provisions in the best way for business and for others with rights and responsibilities under the Act. Their decisions will be announced in due course.

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And for the Public Sector …

A government consultation, Promoting equality through transparency, on proposed draft regulations for specific public sector duties, and on the list of public bodies that will be subject to the general and specific duties was published on 19 August 2010 and closes on 10 November 2010. The results of this consultation are expected to be published 3 months thereafter.

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What should employers be doing?

1. Ensure your policies and procedures are up to date and comply with the October changes; having an equal opportunities policy that has not been reviewed as at October 2010 will not be acceptable to an Employment Tribunal.

2. Check contracts of employment to ensure there are no secrecy clauses stopping employees discussing their salaries – from October these will not be allowed.

3. Ensure managers are trained in equal opportunities and are aware of the forthcoming changes – keep records of training session attended. Have a look at ACAS guidance and the Codes of Practice issued by EHRC, these provide useful guidance; they can be accessed through their websites.

The key thing with any legislation change is to be prepared! The Equality Act 2010 marks a massive change in the culture of equality within the workplace and its effects should not be underestimated.

We will be running seminars and training programmes on the Equality Act 2010. For more information about courses for your business, please contact us on elg@boyesturner.com

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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