Introduction of the Equality Act 2010

This report focuses on the changes from old law to the introduction of the Equality Act 2010 in terms of how discrimination is treated within the workplace. Before this act, the main statutory providing legal aid did not cover certain issues, leaving gaps within the law. But since the Equality Act 2010 was put into practice, protection is now provided to prevent discrimination and states how employers must abide by the new law, regarding direct, associative and perceptive discrimination.

The law is keen to protect employees in the workplace against discrimination of any kind; discrimination involves treating someone less favourably than others due to characteristics which have nothing to do with the matter in hand.

This report discusses the Acts of Parliament which make it an offence to discriminate against an individual in the workplace, where the treatment has no relevance to the job.

OLD LAW

SEX

The Sex Discrimination Act 1975 (referred to as SDA 1975) covered discrimination on grounds of sex. It established the regulations which are legally recognised regarding direct and indirect discrimination of an individual’s gender.

Section 1(a) SDA 1975

Defines what constitutes direct discrimination against a female. It states that if an individual treats a woman less favourable than he would a man, they are discriminating against the female and through the SDA 1975, legal protection would be available. Such as in Coleman v Skyrail Oceanic Ltd [1981] where a female booking clerk married a man employed to a rival agency and was dismissed by her employers, as they thought she would disclose trade secrets.

Section 1(1b) SDA 1975

Defines what requirements the law must apply when the discrimination is indirect against a woman and affects them substantially more than men.

Section 6 SDA 1975

Regulates sexual discrimination within employment and explains what is considered sexual discrimination when applying for a work position.

Section 6(1) SDA 1975

Established what would be considered discrimination during the application process. This includes any requirements made to determine who should receive the position and any terms which may be harmful to women.

Section 6(2) SDA 1975

Explains how all female employees cannot be discriminated against in opportunities within the workplace such as additional training. Dismissal may also constitute a form of discrimination.

Section 7(2) SDA 1975

Describes any situation where it is an occupational need to be a man.

Section 7(2a) SDA 1975

If a man is an essential part of the job, it is not sexual discrimination to employ a man due to their specifics. An example is in the case of decency, such as employing a female attendant in the gentleman’s toilets.

Section 7(2g) SDA 1975

If the position carries certain duties outside the United Kingdom, because a woman may not purposively suit that role, an employer may ask for man.

DISABILITY

The Disability Act (refer to as DA 1995) synchronized discrimination against disability.

Section 1 DA 1995

Disability is defined as “a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.”

Section 5(1a) DA 1995

Defines rules within the workplace in terms of disability discrimination, when an individual for some reason treats another less favourably who are not disabled. Including disadvantages to opportunities within the workplace, due to their disability and not based on merit. For example, it would be justifiable to reject a blind person from taking a position as a lifeguard, but it would not be justifiable to refuse employment to a wheelchair user if the job is deskbound.

Section 5(2) DA 1995

The adjustments which are noted in Section 6 must be provided; any failure to make the adjustments will lead to the individual being able to claim against his employers.

Section 6 DA 1995

The employer must make adjustments to not put the disabled employee at any disadvantage to others.

Section 6(3) DA 1995

The adjustments an employer must ensure such as changes to the premises, altering hours of work or allowing time for personal treatment. However a small company may not be able to afford such drastic financial changes and will be covered by Section 6 (1) DA 1995. The case of Kenny v Hampshire Constabulary [1999] held that making adjustments did not include accompanying staff to the toilet.

Section 6(4) DA 1995

To ensure Section 5(1) is followed, the law will consider whether those changes would have a sufficient effect on the employers financially and could they afford any form of required support

GENDER REASSIGNMENT

The Sex Discrimination (Gender Reassignment) Regulations 1999, provides extra regulations to be used with the SDA 1975. Due to the release of the regulations, Section 2A SDA 1975 was introduced.

Section 2A(1) SDA 1975

An individual will have the right to claim if he receives treatment which restricts him within the workplace of opportunities or is the subject of harassment. To treat someone less favourably due to a gender reassignment procedure is unlawful.

Section 7A SDA 1975

An individual employability can be refused due to the reason of a gender reassignment procedure.

Section 7A(1) SDA 1975

An individual can be refused on grounds of their gender if the occupation requires the genuine qualification of a particular gender. For example, a male who has undergone a operation to become a woman, it would not be acceptable to employ them as a stripper.

Section 7A(4) SDA 1975

This section was introduced by the Gender Recognition At 2004, and states that if an individual has acquired a particular gender, that gender is genuine when considering an application.

RACE

The old law which states the grounds of racial discrimination was the Race Relations Act 1976 (referred to as the RRA 1976)

Section 1 RRA 1976

Defines what is meant by racial discrimination, to treat an individual less favourable because of their racial background. Such as the case of Johnson v Timber Tailors [1978] in which a black Jamaican man applied for a job and was told the position was filled, however adverts continued to appear in the paper. It was held to be direct discrimination on racial grounds.

Section 1(b) RRA 1976

If a provision is available that has a higher proportion of a certain group who cannot take part compared to another group. Legal action will be available for the individual(s) against the employer, and it will be considered discrimination.

Section 3A 1976

Racial discrimination is defined as engaging in any unwanted conduct or creating an “intimidating, degrading or offensive environment for an individual/” due to an individual’s race.

Section 5 RRA 1976

States that race can be a genuine necessity in certain situations,

Section 5(2) RRA 1976

Circumstances where race is a necessity, such as in a project which requires certain authenticity of race such as a crime recreation or when catering is involved such as in the case of Panesar v Nestle [1980], in which a ban on beards and long hair was held to be discriminating against Sikhs but justifiable on the grounds of health and safety in the workplace.

EQUAL PAY

The Equal Pay Act 1970 is the legislation which is used to govern the rights of equal pay. Under Section 1(1), every woman’s employment contract is deemed to include a clause of equality. This entitles her to be paid at the same rate as a man in the same employment providing she can show on the following conditions:-

– She is doing like work with the male colleague

– She is doing work rated as equivalent under a job evaluation scheme

– She is doing work of equal value to that of the male colleague

If it can be show that there is a genuine material difference between her work and the male colleagues work, the equality clause will not apply. Dug dale v Kraft Foods [1977] shows how time when work is done is not a material difference.

Rainey v Greater Glasgow Health Board 1987 is the case of an employer who is a man brought in from a private sector to fit artificial limbs. It was held that he was entitled to more than the existing female employees because he is showing sufficient material difference in work.

NEW LAW

SEX

The Equality Act 2010 (refer to EA 2010) now governs the regulations of sexual discrimination.

Section 11 EA 2010

Defines the characteristics of sex which are protected; Section 11(a) states that it is a indication to man or woman.

Section 13(6) EA 2010

Any less favourable treatment due to breastfeeding is classed as prejudiced against a woman on the grounds of sex. This section covers situations that have only recently been regulated, where an individual may not possess a protected characteristic but may be perceived to

Section 18(2) EA 2010

Discrimination due to pregnancy and maternity states that if due to their pregnancy or illness which results in not being able to work they are treated differently to other employees; legal aid is available.

DISABILITY

The EA 2010 recognises the guidelines on the grounds of disability discrimination; the main area of change is in direct discrimination.

Section 6(4a) EA 2010

The EA 2010 now states that “the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities. A disable person is considered as anyone who has been affected by a disability, even though it may not affect them at present. The EA 2010 removed the capacities established in the DA 1995.

Section 13(3) EA 2010

Discrimination will not arise against an employee, if the employer may treat a disabled person more favourably than a non disabled employee.

Section 15 EA 2010

A person may not be liable for discrimination, however they must prove that they did not know, or could not realistically expected to know that the individual was disabled. This defence can be used in a case which involves a not very well recognised disability.

Section 19 EA 2010

States what treatment would classify as indirect discrimination and states the characteristics which are protected by the act which include age, sex, beliefs, race, religion, gender reassignment and disability

Provisions applied at work which discriminate against a person with a particular characteristic is not permitted.

Section 20 EA 2010

An employer must ensure that adjustments are made, so the disabled individual is not at any substantial disadvantage within the workplace. An employer must ensure any practice that puts a disabled individual at a disadvantage, reasonable steps are provided. An example is providing ramps or elevators to avoid certain physical disadvantages.

GENDER REASSIGNMENT

The EA 2010 covers a new area of discrimination in terms of gender reassignment, this area is discrimination by association, and this is where an employer may not directly discriminate against an individual, however associate with some who does.

Section 7 EA 2010

Defines what is meant by gender reassignment, and who is protected. Anyone who has undergone or intends to undergo gender reassignment procedure is protected within this act. The main change within the act is that medical supervision is not required. A woman may decide to live as a man without undergoing any procedures and still be protected by the statue.

Section 16 EA 2010

This section protects the individual’s right to take time off work to have gender reassignment practice. The act states that action can be taken against the employer, if using work hours to have the procedure is treated less favourably to another form of absence.

RACE

The EA 2010 provides further legal aid in terms of racial discrimination.

Section 9 EA 2010

Established what is meant by the term “race.”

Section 9(1) EA 2010

Race is; colour, national origins, nationality or ethnics. BBC v Souster [2001] shows there can even be a difference between nations which share the same passport

Section 26 EA 2010

Established that third parties can discriminate against an employee, in the case of Conteh v Parking Partners Ltd, in which a parking attendant was racially abused by two users of a car park. If the EA 2010 had been in practice during this case they would bave been charged due to the introduction of stricter guidelines on third party harassment, however there was not enough sufficient evidence

EQUAL PAY

The procedure for making a claim was introduced in Section 42 Employed Act 2002 which requires a claimant to complete the questionnaire. The employee must state why he thinks he is not receiving equal pay and name his employee’s.

In which the employer has 8 weeks to respond and give the following information:-

– Whether the employee does receive less money than the comparator

– If so, why

– Whether he agrees that the employee is doing like work

– Answers to any specific questions raised by claimant

If the claim is successful the employee can receive backdated payments of up to 6 years for the difference between the individual and the comparator.

Conclusion

In conclusion the changes to the law have given stricter guidelines on how direct discrimination, indirect discrimination and discrimination by perception. The employee now has more legal protection within the workplace, so that employers are not superior party within the contract. Due to changes in society in terms of morals and ethics these laws provided, now ensure human rights are not mistreated and every individual in the workplace is based on the merit of their work and not by certain aspect of their individuality.

BIBLOGRAPHY

http://www.legislation.gov.uk

http://www.equalities.gov.uk/equality_act_2010.aspx

http://www.equalityhumanrights.com/legal-and-policy/equality-act/

http://en.wikipedia.org/wiki/Sex_Discrimination_Act_1975

http://en.wikipedia.org/wiki/Disability_Act_1995

http://en.wikipedia.org/wiki/Race_Relations_Act_1976

http://www.cipd.co.uk/hr-resources/factsheets/sex-discrimination-sexual-orientation-gender-reassignment-employment.aspx