In this Q&A, we have attempted to cover some of your most frequently asked questions on the UK Equality Act 2010. This is not intended to be a comprehensive guide of the new provisions, so if you would like further information, please do not hesitate to contact us.
The Equality Act 2010 has been in the press a lot recently. Should we already have taken steps to ensure that our systems are in compliance with it?
The Equality Act 2010 (“the Act”) received Royal Assent in April, just before the general election and after a period of intense discussion and debate. The new coalition government has recently announced that most of the Act’s provisions are due to take effect, as planned, from October 2010. However, despite this, questions remain over the more controversial provisions, such as the socio economic duty, gender pay reporting and positive action.
Employers need to act now in order to prepare for the Act, and the action we recommend is set out at the end of this note. As regards those provisions of the Act where a question mark remains, there is no need to jump the gun – keep a close eye on developments, but be prepared to act as soon as any announcements are made.
I’ve heard that the Act makes it easier for employees to show they have suffered disability discrimination. Is this true?
The Act introduces some significant changes in the law concerning disability discrimination, and the government has said that these will come into force in October. The changes have come about because of a recent decision of the House of Lords (London Borough of Lewisham v Malcolm (2008)), which rendered the existing protections against disability-related discrimination inadequate. The changes make it easier for people to show they are disabled and are protected by disability discrimination law. Two new types of disability discrimination are recognised as unlawful by the Act:
- Indirect discrimination – under Section 19 of the Act, a person will be indirectly discriminated against if the employer applies a “provision, criterion or practice” that puts people sharing that person’s specific disability, at a particular disadvantage. This means, for example, that a job applicant or an employee with dyslexia could claim that a rule that employees must be able to type at a certain speed disadvantages people with dyslexia. Unless the employer can justify this, it would be unlawful.
- Discrimination arising from disability – under Section 15 of the Act, an employer discriminates against a person when it treats that person less favourably, not because of the disability itself, but because of something arising “in consequence of that person’s disability,” such as the need to take a period of disability-related absence. For this type of discrimination to occur, the employer must know, or reasonably be expected to know, that the disabled person has a disability. This type of discrimination will be easier for an employee to show since there will be no need to make a comparison with a person who does not have a disability (as is currently the position). It will, however, be possible for an employer to defend a claim by showing that the treatment is justified as being a proportionate means of achieving a legitimate aim.
Some aspects of disability discrimination law are not changed by the Act. For example, the Act still requires employers to make reasonable adjustments for disabled employees and does not change the extent to which these are required. However, it may be necessary to review your organisation’s policies to ensure that they are up to date and compliant with the current interpretation of “reasonable adjustments.” It will also be advisable to review your policies and practices to ensure that they cover the new definitions of disability discrimination referred to above.