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Equality Act 2010: employment changes

This page outlines changes relating to the employment rules, largely contained in the Equality Act 2010. Further changes relating to grievance and disciplinary procedures came into effect in April 2009. The changes do not necessarily apply to Northern Ireland.

Links:
Equality Act 2010
Government response to the Discrimination Law Review (pdf file, link to equalities.gov.uk), July 2008

'Justification'

The Equality Act 2010 introduces a new 'objective justification' test, so that employers have to meet a higher threshold to justify their actions - for example if they dismiss someone, or fail to take the person on, for a reason which arises from the person's disability. See separate page Objective justification defence.

Remedying the Malcolm case

The Equality Act 2010 contains two new heads of disability discrimination, which are intended to address the House of Lords decision in London Borough of Lewisham v Malcolm. That decision severely limited the scope to make a claim for less favourable treatment. More on Remedying the Malcolm case.

Pre-employment enquiries

The Equality Act introduces restrictions on an employer's entitlement to ask about health and disability before making a job offer. See separate page on pre-employment enquiries.

Harassment

Changes include possible liability for harassment by customers and suppliers, and coverage of victims who are not themselves disabled. See separate page on harassment.

Association and perceived disability

See Employment discrimination because of association, or perceived disability.

Victimisation

Before the Equality Act, victimisation generally required that a person is treated 'less favourably' as a result of a 'protected act', such as bringing a DDA claim. In other words, there had to be a comparison with how someone else would be treated.

In the s.27 Equality Act 2010, the Government is removing the need to compare treatment with someone else. There is a right simply not to be subjected to a detriment as a result of bringing an Equality Act (or DDA) claim, for example. This is along the lines of other employment legislation. (Sources: s.27 Equality Act 2010; Government response to the Discrimination Law Review, July 2008, para 7.35-7.36)

Direct discrimination

'Because of' versus 'on grounds of'

The definition of direct discrimination in s.13 Equality Act 2010 says 'because of' disability rather than 'on grounds of' disability. This has caused concern that it will create uncertainty and could by interpreted more narrowly than the existing wording.

Resisting an amendment to change the wording back, the Solicitor General speaking for the Government said that the new wording was more accessible, but meant just the same as the old wording. In particular, intent was not required, and discrimination need not be the only ground for less favourable treatment (col 240-244, HC Hansard, Public Bill Cttee 16/6/09 (link to UK Parliament website)).

The point was also addressed in the House of Lords Committee. The Minister confirmed there that the objective test, irrespective of motive or intent, is part of European equality law, so that a narrower interpretation requiring intent would violate that and be invalid (from col 522 HL Hansard 13/1/10 (link to UK Parliament website)).

'Substantial' is now defined

For the reasonable adjustment duty to arise, there must be a 'substantial' disadvantage to the disabled person. 'Substantial' might mean 'very large' or it might mean 'more than minor or trivial'. The employment Code of Practice said that it means 'more than minor or trivial', but this is now confirmed by the legislation itself. S.212(1) Equality Act 2010 defines 'substantial' to mean 'more than minor or trivial'. The Government accepted an amendment to this effect by Lord Low (col 1339 HL Hansard 2/3/10 (link to UK Parliament website)).

In SCA Packaging v Boyle it was suggested in the House of Lords that, despite guidance such as the Codes, judges start with a clean slate when deciding what legislation means. This provision in the Equality Act is a very welcome clarification to help guard against unpleasant surprises if the meaning of 'substantial' is challenged in the higher courts.

Cost of reasonable adjustments

S.20(7) Equality Act 2010 (added on 13th January 2010) makes clear that a person required to make a reasonable adjustment is not entitled to require the disabled person to pay to any of the costs of complying with the duty. (There is a limited exception for where the law expressly says otherwise.) HL Hansard 13/1/10 (link to UK Parliament website) at col 565.

Recommendations by tribunals

The new Equality Act gives employment tribunals a wider power to make recommendations in discrimination cases. See Employment: Complaints and going to court: Recommendations.

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Last updated 24th October, 2010