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The Equality Act 2010

Posted: 14 October 2019

Solicitors have responsibilities around equality and diversity under the Equality Act 2010 as individuals, employers and service providers.

The role of employers

 
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Health

An employer can ask about health issues before employing a member of staff, to:

  • decide if reasonable adjustments need to be made for the individual during the selection process
  • decide whether an applicant can carry out a function that is an essential part of the role
  • check that the candidate has a specific disability where having this is a genuine requirement of the role
  • monitor diversity
  • take positive action to help disabled people

Following the offer of employment, an employer can ask health-related questions, but must be careful not to discriminate.

Equal pay

Men and women are entitled to equal pay for:

  • work of equal value
  • like work, or
  • work rated as equivalent

Read the Equality and Human Rights Commission guidance on these definitions

Employers with 250 or more employees must publish and report specific figures about their gender pay gap.

Read government guidance on gender pay gap reporting  

Pay secrecy

Employers cannot prevent employees discussing their pay if this is to find out if they are being discriminated against. Any employment contract clauses that prevent this are not enforceable.

Seeking or making a relevant pay disclosure or receiving relevant information is a protected act covered by the victimisation provisions of the Equality Act 2010.

Duty to make reasonable adjustments

Under the Equality Act 2010, employers and service providers must make reasonable adjustments for disabled people so they are not disadvantaged.

An employer must make a reasonable adjustment when they are made aware of or could be expected to know that an employee has a disability. In terms of service provision, the duty is anticipatory, and adjustments should be made in advance so that access to services is not restricted.

Read schedule 2 and schedule 8 of the Act for more information.

Harassment and victimisation

Harassment occurs when a person engages in unwanted conduct that is related to a relevant protected characteristic and has the purpose or effect of violating a person’s dignity or creates an intimidating, hostile, degrading or offensive environment.

The Equality Act forbids:

  • unwanted conduct of a sexual nature, or that is related to gender reassignment or sex
  • less favourable treatment because a person submits to or rejects sexual harassment or harassment related to sex

As an employer you may be liable if:

  • the harassment happened with your knowledge on at least two occasions
  • you have not taken reasonable steps to prevent the harassment

Victimisation happens when people subject others to less favourable treatment because they carry out any of these actions:

  • bring proceedings under the act
  • give evidence or information in proceedings brought under the act
  • do anything related to the provisions of the act
  • make an allegation that another person has done something in breach of the act
 

The role of service providers

 
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You should be aware of the different kinds of disadvantage clients might face and how to help, for example by providing wheelchair ramps for people who are disabled. Service providers have an anticipatory duty to ensure that disabled clients can access services without being disadvantaged.

Read guidance for service providers from the Equality and Human Rights Commission  

Duty to make reasonable adjustments

Under the Equality Act 2010 employers and service providers must make reasonable adjustments for disabled people so they are not disadvantaged.

Read schedule 2 and schedule 8 of the Act for more information.

Types of discrimination

 
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Protected characteristics

You must not discriminate against people because of:

  • age (this may not apply if employers discriminate to achieve a legitimate aim)
  • disability
  • gender reassignment
  • marriage and civil partnership
  • pregnancy and maternity
  • race
  • religion or belief
  • sex
  • sexual orientation

A person is disabled if they have a physical or mental impairment, and the impairment has a significant and long-term negative effect on their ability to carry out day-to-day tasks.

The Act defines “transsexual”as someone who:

  • is proposing to undergo gender reassignment
  • is undergoing gender reassignment
  • has undergone gender reassignment

The person does not have to be under the care of a doctor to be protected.

Types of discrimination

The Equality Act 2010 covers different types of discrimination that you must avoid.

Direct discrimination

This happens when someone is treated less favourably than another person because:

  • they have or are thought to have a protected characteristic
  • they associate with someone who has a protected characteristic

Indirect discrimination

This happens when a provision, policy or practice that applies to everyone has the effect of disadvantaging people with a protected characteristic.

Discrimination arising from a disability

This happens when a disabled person is treated less favourably because of their disability and their treatment cannot be shown to be a proportionate means of achieving a legitimate aim.

If you are an employer, you may not be liable if you:

  • did not know about a person’s disability
  • could not reasonably have been expected to know about a person’s disability

Positive discrimination

Positive discrimination or positive action is treating a person or group of people with a protected characteristic more favourably than those without it. Positive action is voluntary.

When positive discrimination is lawful

Positive discrimination is lawful where:

  • people who share a protected characteristic suffer a disadvantage connected to the characteristic
  • people who share a protected characteristic have needs that are different from the needs of people who do not share it, or
  • participation in an activity by people who share a protected characteristic is disproportionately low

The law does not prevent you from taking proportionate action to:

  • enable or encourage people who share the protected characteristic to overcome or minimise that disadvantage
  • meet their specific needs, or
  • enable or encourage them to participate in an activity where participation is low

As an employer

You can use positive action to address the needs or disadvantages of a protected group only if:

  • the person in question is “as qualified as” other applicants for a job
  • you do not have a policy of treating people from a disadvantaged group more favourably in recruitment or promotion than other people; and
  • the more favourable treatment is a proportionate means of achieving a legitimate aim to overcome or minimise the disadvantage, or encourage participation
 

Enforcement

 
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Employment tribunals

Employment tribunals can recommend steps that a business should take to reduce the negative effect of discrimination in the workplace.

Recommendations made by an employment tribunal are not binding, but if you fail to act on them this could be used as evidence to support later discrimination claims.

This does not apply to equal pay claims.

The burden of proof

If there are facts from which the court could decide, in the absence of any other explanation, that a person contravened the provision in the act, the court must hold that the contravention occurred unless it can be proved otherwise.

Transfer of proceeding

An employment tribunal can transfer a case to a county court or vice versa if:

  • the case is based on behaviour that resulted in two or more separate proceedings under the act, and
  • one of the claims is related to discrimination

Time limits apply – Read section 6.4 of our practice note Equality Act 2010.

Resources

Equality Act 2010

Practice note: Equality Act 2010  

Government guidance – how the Equality Act 2010 may affect you and how to deal with gender pay gap reporting

Advisory, Conciliation and Arbitration Service guidance – understanding discrimination, preventing it, and how to handle cases of discrimination

Solicitors Regulation Authority (SRA) Principles  

SRA Code chapter 2  

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