The Equality Act 2010 has been described as a tidying up exercise, one that consolidates various pieces of legislation and case law together under one banner.
However, it has also introduced some important changes that will affect jobseekers and employees.
While gender inequality has undoubtedly improved since the days of the female strikers of the 1960s, many people still believe there is a gender pay gap and there are new provisions that should held reduce this gap.
Under previous laws, a person who believed they were being paid less because of their sex had to find someone of the opposite sex employed in the same role in order to pursue a claim. Now, a claimant may be able to make a sex discrimination claim without doing so if they can find some evidence they would have received better remuneration if they were of the opposite sex. For example, if a woman starts in a new position and finds out the previous incumbent, a man, was paid substantially more, she may be able to bring a sex discrimination claim.
The Act also makes it easier for employees to work out if sex discrimination exists in their workplace by banning employers from taking action against staff who break pay secrecy clauses for the purposes of establishing whether there is discrimination. However, this doesn’t mean workers are free to shout their salaries from the rooftops – companies can still require staff to keep pay details confidential from those outside the workplace, for example, competitor organisations.
Ann Bevitt, an employment lawyer at Morrison Foerster, says the changes should simplify things. “I think the motivation behind these changes was that the legislation was very complicated. You can now have a direct sex discrimination pay claim based on hypothetical comparators. I think that if you take that change, together with the change that deals with contractual pay secrecy clauses, that is very helpful for employees who feel that there is some disparity in pay treatment.”
One of the most significant changes for jobseekers is a new ban on employers asking applicants for information about their health at job interviews or in medical questionnaires. Prior to the job offer stage, employers can only ask about an applicant’s health under certain circumstances, for example to ask if they are able to perform a task essential to the position, to assist disabled applicants, or for diversity monitoring purposes.
Tanvi Vyas, a 27-year-old project officer for the Muscular Dystrophy Campaign who suffers from a neuromuscular condition, says the changes are definitely good news for disabled jobseekers.
“They are definitely positive and they are a step in the right direction because you can no longer ask such invasive questions like how many days you’ve had off sick,” she says. “I would say from my own experience when I haven’t put down that I’ve got a disability I’ve been offered more interviews.”
Discrimination and harassment
The Act protects workers from discrimination due to nine protected characteristics, which are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. The legislation also covers associative and perceptive discrimination.
So if a person was discriminated against at work for taking time off to care for a disabled partner, this would be associative discrimination. If someone was bullied at work because people mistaken believed they were gay, this falls under perceptive discrimination.
It also includes more defined responsibilities for employers in dealing with third-party harassment faced by workers. In practice, this means that where an employee faces harassment from a customer, the employer must be able to show they’ve taken steps to make sure it doesn’t happen again.
On this point, Steve Williams, head of equality at Acas, cautions: “We are talking about harassment here, we are not talking about rudeness, we are not talking about ignorance, we are not talking about being upset. The words that define harassment are very powerful words, such as violation of dignity.”
What to do if someone breaks the rules?
If you are experiencing discrimination at work, follow your employer’s grievance procedures in the first case. You could also seek advice from your trade union if you have one, or Acas. If you cannot resolve the matter informally, you could take your employer to an Employment Tribunal.
If you’ve been asked inappropriate medical questions when applying for a job, you can complain to the Equality and Human Rights Commission.