Critical Evaluation of the Improvements Over the Law

Critical evaluation of the improvements over the earlier law

Introduction

The Equality Act 2010 is one of the most important legislations to have been passed in the recent period of time in context of employment law. The law was passed after 14 years of lobbying by organisations, with the overriding aim to achieve “harmonisation, simplification and modernisation” of the anti-discrimination law in the UK (Hepple, 2010, p. 14). This essay critically discusses whether these overriding aims have been achieved by the

Prior to the passage of this law, there were other legislations and directives that were applicable to the areas that Equality Act 2010 is now applicable to. These laws include the Equal Pay Act 1970, Race Relations Act 1976, Sex Discrimination Act 1975, Disability Discrimination Act 1995 and 2005 and other legislations and also four European Union directives (Hepple, 2010, p. 15). Many of the earlier legislations were focussed on prevention of discrimination of people in their places of employment. Here, discrimination could be based on race, gender, disability or other such characteristics of a person but these measures were scattered over different legislations. Equality Act 2010 consolidates all of these different laws to provide the entire framework of discrimination law in one piece of legislation.

The Equality Act 2010 seeks to reduce socio-economic inequalities and prevent victimisation and harassment at workplace. Socio-economic inequalities can be related to issues of race as well as sexual orientation (Hepple, 2010). The law also seeks to achieve objectives such as, gender equality and equality of opportunity for all people who are in employment, regardless of whether the employment is in private or public sector. In order to achieve these and other objectives, the Equality Act 2010 provides certain protected characteristics such as race, gender, sexual orientation, among others. If an employee has one or more of these protected characteristics and on the basis of these characteristics, if an employee is made to face discriminatory or harassing behaviour, the Equality Act 2010 is engaged.

As the brief discussion above indicates, the Equality Act 2010 has certain implications for business and business owners. The implications proceed from the fact that the Equality Act 2010 provides a number of requirements that are to be observed within a business environment. The basic requirement under the Equality Act 2010, from the perspective of the employer, is that any of the protected characteristics provided under the legislation must not be violated by the business owner. Moreover, the employer has to ensure that the work environment is conducive to the protection of the employees from discrimination, victimisation and harassment. Therefore, not only is the employer responsible for his own actions being in conformity with the Equality Act 2010, he is also responsible for the actions of his employees being in conformity with the legislation. It is important to note that the where discrimination is apparent, the employer cannot justify their actions on the ground that there was no intention to discriminate against the employee because in such situations, the law only considers the end effect on the employee of the actions of the employer.

It is also important to note that the provisions of the Equality Act 2010, apply to the private as well as the public sector. In fact, section 149 of the Equality Act, provides a comprehensive definition of the concept of public sector equality. Therefore, public sector employment also requires that the work environment is conducive to elimination of discrimination on the basis of race, sex, disability, etc. and that the employees are ensured the equality of opportunity in the real sense. Finally, the employer is also under a duty to create a work environment which leads to fostering of good relations between people who have protected characteristics and those who do not have any such protected characteristics (Hepple, 2014).

An important aspect of adoption of specific protected characteristics under the Equality Act 2010, is that unlike the European Convention of Human Rights (ECHR), which also protects rights, the protected characteristics under the Equality Act 2010 are specific in nature and therefore the question of what constitutes discrimination is not open-ended (Hepple, 2010, p. 16). The meaning of protected characteristics is therefore, not open to interpretation. The Equality Act 2010 provides for nine specific protected characteristics. This ensures that there is no ambiguity as to what constitutes discrimination at work place and when discrimination actually happens, it is easy to identify which protected characteristic is impacted by such discrimination. Therefore, assigning responsibility with respect to the employer or employee who has indulged in discriminatory conduct becomes easier.

Discrimination can be direct direct as well as indirect. Multiple discrimination can also happen when the employees are discriminated against by using two or more relevant protected characteristics (Hepple, 2010).

To summarise the above discussion, the Equality Act 2010 prohibits discrimination, victimisation and harassment of any employee. In order to keep the conceptualisation of discrimination clear and not open to interpretation, the Equality Act 2010 provides specific protected characteristics. These protected characteristics relate to a characteristic of a person which may be vulnerable to discriminatory behaviour or actions, such as the characteristic of race. These characteristics are described in more detail below.

Age as a protected characteristic

Age as a protected characteristic is engaged with respect to employees who belong to a particular age group. Here, age group is defined to cover people either of the same particular age or of a range of ages within that group. However, under certain circumstances, both direct and indirect discrimination can be justified by the employer, with respect to age. This is provided by the Equality Act 2010, section 13(2), under which the employer is given a defence of justification for direct discrimination, where such discrimination is a “proportionate means of achieving a legitimate aim” (Equality Act 2010, section 13(2)).

In a case where a solicitor had to retire at 65 from the solicitors' practice in which he had been a partner and he filed an action against the respondent firm under the Equality Act 2010 alleging violation of the protected characteristic of age. However, it was held that the respondent had legitimate aims to require retirement at 65 years. These legitimate aims were related to retention of associate solicitors and workforce planning (Seldon v Clarkson Wright & Jakes (no 2) [2014] IRLR 748 EAT, 2014).

Disability as a protected characteristic

The Equality Act 2010, section 6 describes as a disability any physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.

The court has held that an employee cannot allege disability simply because they have type 2 diabetes (Metroline Travel Ltd v Stoute [2015] IRLR 465 , 2015).

Obesity can be a disability for an individual if its effect is substantial and long term in impairing a person’s physical capacities and impedes in the ability to carry out day to day activities (Karsten Kaltoft v Billund Kommune Case [2015] IRLR 146 ECJ, 2015).

Gender reassignment as a protected characteristic

Gender reassignment concerns transition of a man to a woman or vice versa (Cabrelli, 2014, p. 404). In such cases, the employee does not need to actually start the process of reassignment but may simply just start living and passing off as a person of the opposite gender (Cabrelli, 2014). Therefore, even a person who has proposed the process of gender reassignment is protected under the Equality Act 2010, just like a person who has started or completed such a process to change his or her sex.

Marriage and civil partnership as a protected characteristic (section 8)

Civil partnership and marriage both are protected characteristics under the Equality Act 2010. The single characteristic covers both these relationships, so, for example, a married man and a woman in a civil partnership both have the protected characteristic of ‘marriage and civil partnership’.

In a case, an employee successfully argued that her dismissal was unfair because she was married to a particular man (Dunn v Institute of Cemetery and Crematorium Management [2012] All ER (D) 173 , 2012).

Pregnancy and maternity as protected characteristic (section 18)

During the protected period of pregnancy and for a certain period after the birth of the child, unfavourable treatment of the employee, because of her pregnancy, or pregnancy-related illness or because of exercising or wishing to exercise her maternity leave rights, would be considered to be a direct discrimination.

Some cases have arisen due to the dismissal of employee on grounds of leave of absences. Here, the employer’s may compute absence after the end of protected period of time and this will not be considered as pregnancy discrimination. The comparative approach is applied in such circumstances, as per which the dismissal of the woman employee is compared with a comparator male employee. If the same decision would have been taken on the same grounds for the male employee, then the dismissal of the female employee is not a discriminatory act of the employer (Smith & Baker, 2015, p. 315). This was also held by the court in British Telecommunications case (British Telecommunications v Roberts, [1996] IRLR 601, 1996).

Race as a protected characteristic (section 9)

Race is defined to include colour, nationality and ethnic or national origins. Race is one of the most common areas for discrimination (Hepple, 2014). Under the earlier law on race discrimination, Race Relations Act 1976, it was held that Sikhs were a racial group by reference to ‘ethnic origin’ (Mandla v Lee [1983] IRLR 209, 1983).

Religion or belief as a protected characteristic (section 10)

In one case, the claimant was a magistrate who raised objections to sitting as a judge in cases involving custody of children with same sex couples based on his philosophical and religious objections. However, the court held that his religious beliefs were not engaged in the particular case (McClintock v Department of Constitutional Affairs [2008] IRLR 29 , 2008). This is because his opinions or beliefs did not impact how he led his life. In another case, it was held by the court that the beliefs of the claimant on environment were strong enough to be protected because these beliefs impacted how the claimant led his life (Grainger plc v Nicholson [2010] IRLR 4 (EAT), 2010)

In another case, discrimination was alleged by an employee of British Airways on grounds that she was not permitted to wear her Cross outside of her uniform and that this was a violation of her religious freedom (Eweida v United Kingdom [2013] IRLR 231 , 2013). Although the courts in the UK did not rule in the favour of the claimant, the European Court of Human Rights held that her rights under the ECHR, specifically, Article 9 (religious freedoms) had been violated (Smith & Baker, 2015).

Sex as a protected characteristic (section 11)

In a case, the issue of sex discrimination against male employees was raised on the ground of a more restrictive dress code for male employees (mandatory to wear collar and tie) and more permissive dress code for women employees. The court held that sex discrimination was not engaged (Department of Work and Pensions v Thompson [2004] IRLR 348 EAT , 2004).

Sexual orientation as a protected characteristic (section 12)

The sexual orientation characteristic is defined as orientation towards: persons of the same sex, persons of the opposite sex, or persons of either sex. Under the Equality Act 2010, prohibited conduct includes the different acts of discrimination which are unlawful under the Act, unless one of the exceptions applies. The important characteristics of prohibited conduct under the Act can be summarised as under:

Direct discrimination (section 13)

Direct discrimination occurs if a person (A) treats another (B) less favourably than A treats or would treat someone else because of a protected characteristic. The treatment must be because of the protected characteristic (B v A [2007] IRLR 576, 2007).

Indirect discrimination (section 19):

The definition of indirect discrimination in section 19 provides that there should be a rule which the employer applies to everyone but which has more of an impact on some groups than on others and this differentiation causes a disadvantage to the claimant personally, as well as to the larger group to which he belongs (Ministry of Defence v DeBique [2010] IRLR 471 , 2010).

Under section 23, in both the cases of direct as well indirect discrimination, the claimant must be compared with someone else whose circumstances are not materially different from the claimant, apart from the protected characteristic. This person is a ‘comparator’ and the comparison is known as a ‘like for like’ comparison (Nelson v Newry and Mourne DC [2009] IRLR 548 , 2009).

Discrimination arising from disability (section 15)

Section 15 provides for 'discrimination arising from disability' which is defined as treating a person unfavourably for a reason arising in consequence of his disability. However, the employer may be able to justify the discrimination if it is a proportionate means of achieving a legitimate aim.

Under the Equality Act 2010, the employer has a duty to make reasonable adjustments which would make a job suitable for a person with a disability. The duty comprises three requirements, relating to different aspects of the employment, if any of these place the disabled person at a substantial disadvantage in comparison with non-disabled people (section 20). The three requirements relate to duty to make a provision, criterion or practice applied by the employer, duty to make the physical features of a building conducive to disabled employees and providing auxiliary aids or services.

Harassment (section 26)

Harassment means offensive or intimidating behaviour towards a person and this can include use of sexist language or racial abuse, which aims to humiliate, undermine or injure a person or has that effect of injuring a person.

Victimisation (section 27)

Victimisation is defined as a detriment to a claimant who has any of the protected acts. Victimisation may mean treating somebody less favourably than others because they tried to make, or made, a complaint about discrimination.Changes made from previous discrimination legislation

The Equality Act 2010 largely consolidated previous discrimination legislation. There are some important areas of distinction from the previous laws. First, there is inclusion of discrimination by association, so that people who associate with those with protected characteristics are also protected (Kelly, et al., 2014, p. 508). Second, indirect discrimination is extended to disability discrimination and gender reassignment discrimination. Third, there is a protection against harassment by third parties. Fourth, hypothetical comparators are allowed in gender pay claims. Fifth, there is a prohibition on health questionnaires at the time of recruitment. Sixth, there are wider tribunal powers for the purpose of making recommendations (Kelly, et al., 2014, p. 508).

In case of disability discrimination, the Equality Act 2010 has extended the definition of direct discrimination to cover less favourable treatment because of an incorrect belief that someone has the protected characteristic of disability. The Act has extended the concept of indirect discrimination to disability; introduced the concept of discrimination arising from disability; and also removed the requirement for a comparator to establish victimisation.

In case of gender reassignment discrimination, a larger definition is provided as compared the earlier one under Sex Discrimination Act 1975. Now the gender process is not required to have already been undertaken for the purpose of claiming protection (Kelly, et al., 2014, p. 508).

Potential problems with the Equality Act 2010

The potential problems that may arise with respect to the application of the Equality Act 2010 relate to the Public Sector Equality Duty (PSED) as provided under section 29 of the Act requires the advancement of the progress of equality and is not simply limited to protection of equality. However, it is contended that the wording of the provision, that is section 29 is weak because it merely requires the standard of having to give ‘due regard’ to the need to achieve goals and not really to take active steps to achieve such goals (Butler, 2016, p. 31). This allows discretion to the public officials and bodies regarding the application of section 149. In other words, the public bodies are not under a duty to take positive steps with respect to the provision, but merely to consider it.

Recommendations

Employers and organisations can implement the provisions of the Equality Act 2010 and also ensure that the principles of the law are followed within the organisation by placing a system of transparency and accountability which allows the employees to discuss areas of concern or discriminatory or harassing behaviour with their superiors without facing victimisation for reporting such behaviour.

Employers may also establish committees within the organisation that would consist of elected employees for the express purpose of providing a grievance centre to the employees where they can be assured of a hearing to their grievances related to discrimination, harassment or victimisation.

Conclusion

The Equality Act 2010 is a very important piece of legislation in context of employee rights and employer duties and obligations to prevent discriminatory, harassing or victimising behaviour or actions against the employees. The earlier discrimination law was scattered across multiple legislations and regulations and the Equality Act 2010 consolidates the earlier law into a single piece of legislation. The Equality Act 2010 also extends the scope of discrimination claims by extending indirect discrimination. Specific protected characteristics such as disability and gender reassignment discrimination, have also been extended in their scope.

Employers and organisations are potential respondents in claims of discrimination based on the specific protected characteristics provided under the Act. In order to avoid such litigation and to also encourage and ensure a work environment free of discrimination, employers can take certain positive steps for the purpose of ensuring a system of accountability within the organisation as against any person who indulges in such discriminatory behaviour. Failure to take such steps will make the employer a potential respondent in discrimination claims under the Equality Act 2010.