Equality Act 2010: Employers’ Guide

IN THIS SECTION

The Equality Act 2010 establishes and governs employee rights and employer responsibilities in relation to protecting people from discrimination in the workplace, among other areas.

It is essential that employers, and those responsible for managing the workforce, fully understand the provisions under the Act and the potential consequences of failing to comply.

The following guide for employers, line managers and HR personnel outlines the law under the Equality Act 2010, from the key provisions to what action can be taken for unlawful discrimination. The Equality Act is an extensive and complex piece of legislation. For specialist advice on the implications of the Act on your workplace, and how to comply, contact us. 

 

What does the Equality Act 2010 say?

The Equality Act 2010 legally protects a person from unlawful discrimination at work. Under the Act, all employers are under a duty not to directly and/or indirectly discriminate against anyone who has, is perceived to have, or is associated with someone that has, a protected characteristic. Protected characteristics are essentially aspects of a person’s identity that makes them who they are. The Act specifies the following which are afforded protection under the provisions:

  • Age: discrimination relating to age is where someone is treated unfairly at work by reason of how old they are, or because they are part of a certain age group or age range.
  • Disability: discrimination relating to a person’s disability is where someone is treated unfairly at work because of a physical and/or mental impairment that is having a substantial and negative effect on their ability to do normal daily activities long-term.
  • Gender reassignment: discrimination relating to gender reassignment is where someone is treated unfairly at work because they are transgender, including those proposing to undergo, currently undergoing or having already undergone a process for the purpose of reassigning their sex assigned to them at birth to their preferred sex.
  • Being married or in a civil partnership: discrimination relating to marriage or civil partnership is where someone is treated unfairly at work because they are married, provided this union is recognised as a marriage under UK law, even if they did not marry in the UK, or in a registered civil partnership, including same sex partnerships registered outside the UK.
  • Being pregnant or on maternity leave: discrimination relating to pregnancy or maternity is where someone is treated unfairly at work because either they are pregnant or have a pregnancy-related illness, or they are on maternity leave having recently given birth.
  • Race: discrimination relating to a person’s race is where someone is treated unfairly at work because of either their colour, nationality, or their ethnic or national origins. People who share any one of these characteristics form part of the same racial group, although a person can belong to several racial groups.
  • Religion or belief: discrimination relating to religion or belief is where someone is treated unfairly at work because they follow a particular faith or hold a certain belief, where ‘belief’ can encompass both religious or philosophical beliefs, and include a lack of belief.
  • Sex: discrimination relating to sex is where someone is treated unfairly at work simply because they are either female or male, regardless of any other protected characteristic they may also possess.
  • Sexual orientation: discrimination relating to sexual orientation is where someone is treated unfairly at work because they are either gay, lesbian, bisexual or heterosexual.

Possessing one of these protected characteristics means that individuals have a right not to be treated less favourably because of this, or subjected to an unfair disadvantage at work, throughout the entire lifecycle of their employment. This includes their employment terms and conditions; pay and benefits; opportunities for promotion, transfer and training; as well as any dismissal and redundancy. This also includes the recruitment process, where job applicants are equally afforded protection from unfair treatment in the workplace.

Additionally, under the Equality Act 2010, it is unlawful for either the employer or other members of staff to engage in unwanted conduct at work related to a relevant protected characteristic, or to victimise someone at work because they have complained about alleged discrimination or supported someone else’s claim, or this is believed to be the case.

 

Types of discrimination under the Equality Act 2010

In broad terms, there are 4 different types of discrimination under the Equality Act 2010:

  • direct discrimination
  • indirect discrimination
  • harassment
  • victimisation

 

Direct discrimination

Direct discrimination in the workplace is where an employer treats a person less favourably because they have a particular protected characteristic. An example of direct discrimination at work could be where a pregnant worker or a worker on maternity leave is specifically selected for redundancy because they are expecting a child or have recently had a child, or where a female worker is passed over for a promotion for which she was suitably experienced, but her less experienced male co-worker is offered the job instead.

Direct discrimination can also include treating someone unfairly at work because they are thought to possess a protected characteristic (perceptive discrimination), even if this is not actually the case, or because a person is associated with someone who possesses a protected characteristic, such as a family member or friend (associative discrimination).

 

Indirect discrimination

Indirect discrimination at work is where the application of either a provision, criterion or practice inadvertently puts, or would put, those workers who possess a particular protected characteristic at an unfair disadvantage when compared with others who do not share that characteristic. This is essentially where an employer treats a person the same as everyone else, but this still has an adverse effect on that individual.

For example, an advert for a salesperson requiring applicants to have 15 years’ retail experience could be indirectly discriminatory because of age, excluding younger people who may still possess the qualifications and skills needed. Equally, any requirement that all employees work certain shift patterns could discriminate against someone on medication for an anxiety disorder which means that they are too tired to work the early or late shifts.

 

Harassment or victimisation

Harassment at work is where someone is subjected to unwanted conduct that is connected to a protected characteristic, and that either violates their dignity and/or creates an offensive working environment. In contrast, victimisation is where a person is subjected to a detriment because they have made a complaint about discrimination or harassment, or they have supported someone else’s complaint at work.

For example, if a person at work is subjected to sexist, racist or homophobic remarks, this could amount to harassment under the Equality Act 2010. Equally, if someone is refused a promotion or other opportunities at work because they have supported a colleague’s complaint about discriminatory comments or conduct, this could amount to victimisation.

 

Other rights and responsibilities under the Equality Act 2010

In addition to the prohibition against discrimination at work, there are various additional rights and responsibilities that arise under the Equality Act 2010, not least the employer’s statutory duty to make reasonable adjustments to minimise any disadvantage suffered by a disabled job applicant or worker. This is essentially a duty to ensure that any individual suffering from a disability, as defined under the Act, is not substantially disadvantaged in carrying out or applying for a job role when compared with a non-disabled person.

There are several ways in which an employer can reduce or remove any disadvantage. A ‘reasonable adjustment’ could be, for example, a physical adaptation to the workplace itself, such as the installation of a ramp for wheelchair access. It could also include the provision of support or specialised equipment, such as an amplified phone for someone with a hearing impairment, as well as a change to the way things are done at work, such as allowing different shift patterns for someone suffering with side effects from medication.

 

Exceptions under the Equality Act 2010

There are limited circumstances in which some forms of discrimination are allowed. This includes if a certain protected characteristic is needed for an applicant to do a particular job. This is known as an ‘occupational requirement’. For example, an employer may be able to justify employing only female staff in a medical centre for Muslim women or to justify an upper age limit on a gymnasium job requiring high levels of agility and fitness.

In some cases, indirect discrimination can also be considered lawful, but only in circumstances where the employer can prove that the application of a provision, criterion or practice is a proportionate means of achieving a legitimate aim. This is referred to as ‘objective justification’, where legitimate aims can include the economic and operational requirements of the business in question, or the health and safety of a person or people at work. For example, banning the wearing of necklaces in a workplace with heavy machinery might indirectly discriminate against anyone who wears a necklace to show their faith, but this is justifiable to prevent the incidence of any accidents because of this.

Importantly, it is unlawful to positively discriminate in the workplace, although employers can sometimes take ‘positive action’. For example, if people with a protected characteristic are at a disadvantage, have particular needs or are underrepresented in an activity or type of work, positive action can be legal. As such, an employer can take proportionate steps to reduce or remove any barriers, or provide support and training, so as to increase the participation of those from a protected group, or to support prospective or existing workers.

 

Unlawful discrimination claims under the Equality Act 2010

If a job applicant or worker is treated unfairly at work by reason of a protected characteristic, that person may have a potential claim for unlawful discrimination. Equally, any failure on the part of the employer to make reasonable adjustments for a disabled applicant or worker — such as workplace adaptations or flexible working arrangements — can also be classed as unlawful discrimination by reason of disability.

In most cases, the employer can expect a worker to make an informal complaint or formal grievance. However, an employer could also easily find themselves facing a claim for unlawful discrimination before a tribunal. Equally, any decision to dismiss an employee because of a protected characteristic could be ‘automatically’ unfair. This means that an employee would not need 2 years’ qualifying service to be eligible to claim unfair dismissal.

It is also worth noting, especially in the context of possible claims for harassment or victimisation, that an employer can be found accountable not only for its own discriminatory conduct, but vicariously liable for any unlawful conduct of its employees. Under the provisions of the Equality Act 2010, anything that is done by another person in the course of their employment should be treated as if done by the employer.

Where a finding of discrimination is made by an employment tribunal, the employer can be liable for an unlimited sum of compensation. This is because there is no maximum cap on how much a tribunal can award to a job applicant or worker who has been treated unfairly.

 

How can employers reduce the risk of discrimination claims?

Discrimination in the workplace, even if unintentional, can have very serious and costly consequences for employers. As such, given the potential risk of tribunal proceedings when it comes to any failure to comply with the provisions of the Equality Act 2010, there are various steps that an employer can take to help reduce the risk of discrimination, including:

  • The provision of equality and diversity training: it is essential that those responsible in the workplace for making hiring, firing and other management decisions fully understand how the different types of discrimination can arise and are fully trained in these areas of risk. It is also important for all other members of staff to understand the potential impact and consequences of their own unlawful conduct at work.
  • Putting in place a ‘dignity at work’ policy: a written policy will help to set out the employer’s stance in relation to discrimination, harassment and victimisation at work. The policy should clearly explain the different types of discrimination and the context in which these can take place. It should essentially let employees know what is regarded as acceptable conduct and what is expected of them when at work, and set out the procedure for dealing with any complaints or allegations of discriminatory conduct.
  • Reviewing all workplace policies and procedures: it is always good practice to ensure that all policies promote inclusion at work, and that the application of any provision, criterion or practice will not inadvertently put those with protected characteristics at an unfair disadvantage. This should include recruitment policies and how vacancies are advertised.

 

Need assistance?

We provide specialist advice to employers to support inclusive and diverse workforce management, while reducing the risk of discrimination claims. Contact us to find out how we can help your organisation.

 

 

Author

Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.

She is a recognised by Legal 500and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.

Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals

About DavidsonMorris

As employer solutions lawyers, DavidsonMorris offers a complete and cost-effective capability to meet employers’ needs across UK immigration and employment law, HR and global mobility.

Led by Anne Morris, one of the UK’s preeminent immigration lawyers, and with rankings in The Legal 500 and Chambers & Partners, we’re a multi-disciplinary team helping organisations to meet their people objectives, while reducing legal risk and nurturing workforce relations.

Legal Disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct at the time of writing, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

Contact DavidsonMorris
Get in touch with DavidsonMorris for general enquiries, feedback and requests for information.
Sign up to our award winning newsletters!
Find us on: