You no doubt have heard about the Equality Act in the press and media. The Equality Act was enacted by the Labour Government in April 2010 and came into force on 1 October 2010. The Act seeks to consolidate a fleet of legislation dating from the Equal Pay Act and Sex Discrimination Acts, which came into force in the 1970s, through to much more recent legislation, including the Disability Discrimination Act 1995 and the Age Discrimination Regulations which came into force in the last decade. Largely, the Act has achieved this aim and in the process makes a number of provisions which apply the law more consistently.
All employers, including those in the early years sector, need to be aware of the changes.
Q: Exactly what does the Act cover and does it make it easier to bring a claim?
The Act protects against discrimination on the basis of all of the previous grounds: sex, race, age, disability, religion and belief and sexual orientation. These are now called 'protected characteristics'. The definitions of protected characteristics are broadly the same as in the old legislation, but there are some changes which may increase the chances of a successful claim being brought. For example:
- - Under the old regime, an employee needed to be able to point to one of eight capacities (such as mobility, hearing or eyesight) that would affect normal day-to-day activities in order to prove that they were disabled. Although the definition of disability discrimination remains very much the same, the eight capacities no longer exist.
- This makes it easier for disabled claimants to show they are disabled, provided that they can show 'a substantial and long-term adverse effect'.
- - 'Race' has been redefined to reflect that since the Race Relations Act was introduced in 1976, the concept of race has moved away from the idea that race denotes possession of particular biological characteristics to race being a way to identify social groups by reference to culture, national origin and history. Now the reverse burden of proof will apply to all types of race discrimination, including victimisation and harassment. This will have the effect of making it easier for employees who have been discriminated against to bring a claim. We may also see more claims being made and a higher success rate for claims that are made.
- - Religion and belief are both defined in the new Act, but it is not clear how this will be interpreted. A recent case, Grainger-v-Nicholson, provided a wonderful opportunity to clarify the law, but this was missed. Here an employee who believed in climate change brought a successful claim. Employers therefore still face the possibility of disputes with employees claiming they have been discriminated against for holding a religion or belief that many might find obscure or unusual.
In addition, a new definition of direct discrimination does not require the victim to have the protected characteristics. Previously, to be able to claim, for example, age discrimination on grounds of being over 60, it was necessary for the claimant to show that he was in fact over 60. It was necessary for the claimant also to show less favourable treatment 'on the grounds of' his age. Under the new definition the claimant simply needs to show less favourable treatment 'because of' age (or other protected characteristic). 'Because of' is a broader definition and will allow claims for discrimination by association with a protected characteristic or because of someone's perception that he or she has a protected characteristic, without this actually being the case. For instance, a 40-year-old man with grey hair could claim age discrimination if someone perceives that he is over 60.
Q: Are there any consequences under the Act in the event that, say, a parent of a child harasses a member of staff?
Yes. The new Act extends the liability of employers for persistent harassment of their employees by third parties. An employer will now be liable if a third party harasses an employee in the course of their employment; the employer knows that the employee has been harassed in the course of their employment on at least two other occasions by a third party; and the employer has not taken reasonably practicable steps to prevent the harassment.
Q: Are there any situations where discrimination can be justified?
There is an objective justification defence for indirect discrimination. This would apply, say, where an employer sets a job specification that is applied consistently to all applicants but may indirectly discriminate against someone with a protected characteristic. This defence is, however, limited to circumstances which are 'a proportionate means of achieving a legitimate aim'.
In the context of an early years setting, where you are looking to recruit someone whose responsibilities involve the care and wellbeing of very young children, it may be legitimate to state in the job specification that the applicant should be fit and mobile, although the concept of reasonable adjustments to the position would always apply.
Employers who rely on any specific genuine occupational qualifications under the existing legislation are advised to review their current recruitment policies to ensure they comply with the new provisions, and examine carefully whether the requirement for a person to have a particular protected characteristic is a proportionate means of achieving a legitimate aim.
The defence does not apply to direct discrimination or claims of harassment or victimisation.
Q: Will there be any practical effect on the way we recruit new staff?
Under the new Act, an employer must not ask about a job applicant's health, including any disability, before offering the applicant work. This includes questions on application forms.
Under the new Act, employers are still able to ask questions that are necessary to establish that the job applicant will be able to comply with the requirement to undergo an assessment, such as a selection test or interview. They will also be able to ask questions in order to make reasonable adjustments that may be necessary to carry out an assessment. It is also possible to ask questions to assess whether the applicant will be able to carry out the job specification (as referred to above) or any other function that is intrinsic to the work concerned.
Q Given that the Act was passed by the old Government, is there any chance that it will be repealed by the Coalition Government?
The Equality Act was passed when the Labour Government was in power. The Conservatives said that if they gained power, they would repeal a number of provisions in the Act. The Liberal Democrats also made similar comments. It is difficult to see a root-and-branch repeal, but there may be some minor changes made during the remainder of the Government's term.
Further information
If you have any queries relating to the issues in this article, please speak with Karl Deakin or another member of the Early Years Team at Veale Wasbrough Vizards. His contact details are: 0117 314 5443 or kdeakin@vwv.co.uk.
