Blake Lapthorn's Employment team held a seminar on the Equality Act 2010 at its London office on 17 November 2010.

1. The Equality Act 2010
demystified
Stephanie Slanickova
Oliver Weiss
17 November 2010

2. The Equality Act 2010
History and purpose of Act
Protected characteristics
Discrimination: the key concepts

3. History and purpose
Consolidate and harmonise existing anti-
discrimination law
Strengthen previous law
Advance equality of opportunity

4. The “Protected Characteristics”
Change
Disability
Gender reassignment
Race
(sections 4 to 12)
No change
Age
Marriage and civil
partnership
Pregnancy and
maternity
Religion or belief
Sex
Sexual orientation

5. Discrimination: the key concepts
Direct discrimination (change) (section 13)
– A discriminates against B if, because of a
protected characteristic A treats B less favourably
than A treats or would treat others

6. Direct discrimination:
discrimination by association
No longer because of “B’s” protected characteristic
Association need not be permanent
Previously existed for race, religion/belief and sexual
orientation (and, through case law, disability)
Now applies to all protected characteristics except:
– does not apply to marriage/civil partnership or to
pregnancy/maternity

7. Direct discrimination:
discrimination by perception
Discrimination by perception
– mistaken belief
Previously existed for age, race, religion/belief and
sexual orientation
Now applies to all protected characteristics except:
– does not apply to marriage/civil partnership or to
pregnancy/maternity
Direct discrimination: no defence other than for direct
age discrimination

8. Indirect discrimination
(section 19)
A applies a provision, criterion or practice
(PCP) which is discriminatory in relation to a
protected characteristic of B
What is new?

9. Indirect discrimination cont.
PCP is discriminatory if:
– A applies it or would apply it to persons with whom
B does not share the characteristic
– PCP puts or would put persons with whom B
shares the characteristic at a particular
disadvantage when compared with persons with
whom B does not share the characteristic
– PCP puts or would put B at that disadvantage
and
– A cannot show it to be a proportionate means of
achieving a legitimate aim

10. Indirect discrimination cont.
“would be” – now potentially covers job applicants
who would have applied for the vacancy
Extended to cover disability and gender
reassignment
Does not cover pregnancy/maternity

11. Harassment
Change: new wider definition (section 26)
A person (A) harasses a person (B) if A engages in
unwanted conduct related to a relevant protected
characteristic which has the purpose or effect of
violating B’s dignity, or creating an intimidating,
hostile, degrading, humiliating or offensive
environment for B.
Covers all strands except marriage/civil partnership
and pregnancy/maternity

12. Harassment cont.
Does the unwanted conduct have that effect or
purpose?
Must take into account:
– perception of person alleging harassment
– other circumstances of the case
– whether it is reasonable for the conduct to have
that effect
Covers associative and perceptive harassment

13. Harassment cont.
Third party harassment (section 40)
“Three strike provision”: if an employer knows
employee has been harassed by a third party on at
least 2 other occasions and hasn’t taken
reasonably practicable steps to prevent it
Need not be same third party
Previously only sexual and sex-related harassment
Extended to cover all protected characteristics
(except marriage/civil partnership and
pregnancy/maternity)

14. Victimisation
(section 27)
Subjecting a worker to a detriment because the
worker has done a “protected act” or the employer
believes that the worker may do a “protected act” in
the future

15. Victimisation cont.
“Protected Act”:
– bringing proceedings under the Equality Act
– giving evidence in connection with proceedings
under the Equality Act
– doing anything which is related to the provisions of
the Equality Act
– making an allegation that another person has
done something in breach of the Equality Act
– making or seeking a “relevant pay disclosure” to or
from a colleague (including a former colleague)

16. Equal Pay
Same legislative framework
However, changes elsewhere in the Equality Act
affecting equal pay matters:
– pay secrecy clauses
– protection under “victimisation”
– actual comparator no longer required – direct sex
discrimination

17. Instructing, causing and
inducing
(section 111)
Harmonisation and extended protection – all
protected characteristics
Unlawful for a person (A) to instruct, cause or
induce another person (B) to discriminate against,
harass or victimise a third person (C), or to attempt
to do so

18. Aiding
(section 112)
(A) must not knowingly help (B) to discriminate,
harass or victimise

19. Remember...
Protection in relation to fixed-term and part-time
working still exists
Default retirement age – to be phased out in April
2011:
– retirement procedure to be abolished
– transitional arrangements 06/04/2011 to
01/10/2011

20. Disability Discrimination
Definition of disability
Differences in scope of protection
New rules regarding pre-employment health
enquiries

21. Old Position
Disability Discrimination Act 1995
(DDA)
Reason related to disability
Duty to make reasonable adjustments
Complicated case law

22. Definition of Disability under
Equality Act 2010
(section 6)
A person (P) has a disability if –
(a) P has a physical or mental impairment, and
(b) The impairment has a substantial and long-term
adverse effect on P’s ability to carry out normal
day-to-day activities.

23. No longer a requirement to show that impairment affects
one of 8 specified capacities:
– mobility
– manual dexterity
– physical co-ordination
– continence
– ability to lift, carry or otherwise move everyday
objects
– speech, hearing or eyesight
– memory or ability to concentrate, learn or
understand or
– perception of the risk of physical danger
Definition of Disability cont.

24. Includes person who has had a disability
Deemed disabilities:
– cancer, HIV and multiple sclerosis
– blindness, severe sight impairment
Certain conditions excluded:
– tendency to set fires
– tendency to steal
– tendency to physical or sexual abuse of other persons
– exhibitionism
– voyeurism
Definition of Disability cont.

25. Direct Disability Discrimination
Disability one of the protected characteristics
(section 13) Direct discrimination occurs where a
person (A) treats another (B) less favourably than A
treats or would treat others
No discrimination where disabled person is treated
more favourably than a person who is not disabled
Nearly identical to direct discrimination provisions
existing under the DDA

26. Discrimination Arising From
Disability
New Provision inserted by Equality Act (section 15):
A person (A) discriminates against a disabled person
(B) if –
(a) A treats B unfavourably because of something
arising in consequence of B’s disability, and
(b) A cannot show that the treatment is a
proportionate means of achieving a legitimate
aim.

27. Discrimination Arising From
Disability cont.
Replaces the position under DDA which referred to “for
a reason relating to disability”
No comparator needed
Addresses difficulties posed by Clark v Novacold and
Lewisham v Malcolm decisions
No discrimination if employer did not know and could
not reasonably have known that employee had the
disability

28. Indirect Disability Discrimination
New provision inserted by Equality Act (section 19):
A person (A) discriminates against another (B) if:
– A (the employer) applies or would apply a provision,
criterion or practice (PCP) to B
– B has a disability
– PCP puts or would put persons with B’s particular
disability at a particular disadvantage compared with
others
– PCP actually puts or would put B at a disadvantage
and
– employer cannot show that the PCP in question is a
proportionate means of achieving a legitimate aim

29. Indirect Disability Discrimination
cont.
“Provision, Criterion or Practice”- PCP
– New concept in disability discrimination law
– Examples
Applies to specific disability of employee

30. Duty to make Reasonable
Adjustments
(section 20)
A duty on employers to make reasonable adjustments to
premises or working practices to help disabled
employees/applicants
The duty arises in three different circumstances:
– where a provision, criterion or practice puts a disabled
person at a substantial disadvantage
– a physical feature puts a disabled person at a
substantial disadvantage
– where a disabled person would but for the provision of
an auxiliary aid be put at a substantial disadvantage
the employer must take reasonable steps to provide
the auxiliary aid

31. Duty to make Reasonable
Adjustments cont.
The first two replicate the old law
Obligation to provide auxiliary aid is new feature of the
Equality Act
Duty includes taking steps to ensure that information is
provided in accessible format
Only applies where employer knows or ought
reasonably to know of disability

32. Enquiries about Disability and
Health
(section 60)
Prohibited to ask about health of applicant before job
offer is made
Specific exceptions
– candidate participation in assessment
– reasonable adjustments to recruitment process
– function intrinsic to job
– monitoring diversity
– specific disability a requirement of the job

33. Summary and Conclusions
Significant changes
– Equality Act applies from 1 October 2010 and any
acts of discrimination occurring after this time, even if
they started before 1 October, will come under the
new law
Likely to be increased litigation in early stages
– new concept of discrimination arising from disability
– new definition of indirect disability discrimination
– new much broader definition of harassment
– associative and perceptive discrimination applies to
most protected characteristics

34. Summary and Conclusions
But no need for undue concern!
– most employers who currently operate best practice
are not likely to fall foul of the majority of the Equality
Act’s provisions. See it as an opportunity to review
policies and training
Practical steps for employers
– review and update policies and procedures
– consider additional training for staff and be wary of
employees who cross the line- you as employer will
be held responsible for their actions unless you can
show you took sufficient steps!

35. Drinks and questions