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Equality Bill - what will it mean for private sector employers?

14 September 2009

The Equality Bill brings together around 40 years of discrimination legislation, nine existing laws and over 100 statutory instruments. It is intended to harmonise, simplify and strengthen discrimination laws to support progress on equality and is due to be enacted in 2010.

But what changes will this mean for private sector employers? The main provisions are as follows:

Current position Proposed under the Equality Bill
Protected characteristics These are age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation. The list will remain the same with some minor changes to the definitions.
Direct discrimination

Treating an individual less favourably on grounds of a particular characteristic.

It is only possible to objectively justify direct discrimination where the protected characteristic is age.

Treating an individual less favourably because of a particular characteristic - this is not intended to change the meaning.

It will still be possible to objectively justify direct age discrimination.

See below for associative and perception-based direct discrimination.

Indirect discrimination

Applying a provision, criterion or practice (PCP) to all where it puts members sharing one of the protected characteristic at a particular disadvantage to others not sharing that characteristic. There is no discrimination if the PCP can be objectively justified.

Indirect discrimination does not apply to disability.

For all other protected characteristics except race, the claimant must be disadvantaged by the PCP. For race, it is sufficient if the claimant would have been so disadvantaged.

Indirect discrimination is extended to cover disability discrimination.

For all cases, it will be sufficient if the PCP would put the claimant at a disadvantage.

Disability-related discrimination Treating an individual less favourably for a reason which relates to the claimants disability and where that treatment cannot be justified. This will be replaced with discrimination arising from disability being treatment which amounts to a detriment because of the individuals disability (which is known or ought reasonably to have been known) where the treatment is not a proportionate means of achieving a legitimate aim.
Reasonable adjustments Employers are under a duty to make reasonable adjustments where a PCP (or the physical premises) places a disabled person at a substantial disadvantage to prevent the PCP or physical feature having that effect. This will be extended to include circumstances where a person would be placed a substantial disadvantage without the employer providing an auxiliary aid.
Harassment

Subjecting an individual to unwanted conduct related to a protected characteristic or (for sexual harassment) of a sexual nature which has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

Where the protected characteristic is sex, there is additional protection where an individual has rejected or submitted to particular conduct and is treated less favourably as a result.

Employers may also be liable, where the characteristic is sex, for failing to prevent repeated harassment of employees by third parties.

The definitions of harassment will be harmonised, including extending the provisions on liability for third-party harassment to other protected characteristics (except pregnancy and maternity or marriage and civil partnership).

The additional protection for rejecting or submitting to conduct will remain limited to where the protected characteristic is sex.

See below for associative and perception-based harassment.

Associative discrimination

Under current legislation, the characteristics of sex, disability, marital status, age pregnancy and gender reassignment must be held by the claimant. However, for disability, case law has held that the legislation must be interpreted to cover someone with whom the claimant associates.

For race, sexual orientation, and religion or belief, the characteristic may be of someone with whom the claimant associates.

Direct discrimination and harassment will be prohibited based on association in respect of race, sex, gender reassignment, disability, sexual orientation, religion or belief and age.
Perceived discrimination

Direct discrimination on the grounds of perceived race, sexual orientation, religion or belief or age is prohibited.

For all other protected characteristics, the characteristic must actual apply to the claimant.

Direct discrimination and harassment will be prohibited based on a claimants perceived race, sex, gender reassignment, disability, sexual orientation, religion or belief or age.
Positive action

Employers can take proportionate measures to train or encourage under-represented groups to apply for jobs.

Employers will be permitted (but are not required) to take under-representation of particular groups into account when selecting between two equally-qualified candidates.
Multiple characteristics Tribunals can only consider each characteristic separately. Combined claims for direct discrimination will be permitted in respect of two protected characteristics (excluding pregnancy/maternity and married/civil partner status). For example, a claimant may argue that they have been directly discriminated against because of their sex and their race, and not simply because of one of those characteristics.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

Sarah Hooton

Sarah Hooton

Professional Development Lawyer

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