Diversity - the forefront of any business
The 1st October 2010 saw the first phase of the implementation of the Equality Act 2010, which not only consolidates existing legislation but also introduces new concepts which will have far-reaching effects. This all comes at a time when our demographics are changing, with an ageing population, a more ethnically and religiously diverse workforce, more people with disabilities in the workplace and an increasing number of women at work, many of them part time or wishing to work part time.
In what are difficult economic times, employers need to ensure that they recruit and retain the best employees and open up their marketplaces to attract a more diverse range of clients/customers to maintain a competitive advantage. Businesses can no longer regard diversity as a minority interest issue; it should be at the heart of any business.
The Equality Act 2010
The primary aim of the Act is to harmonise, simplify and strengthen the existing law, which has become complex and inconsistent. The Act brings together nine major pieces of legislation and around 100 statutory instruments.
A key concept of protected characteristics will be introduced (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation) and it will be unlawful to discriminate because of a protected characteristic.
The main changes are:
- for disability - a new concept of disability-related discrimination has been introduced, along with indirect disability discrimination. Employers are prohibited from making pre-employment health enquiries unless this is done for certain prescribed reasons
- for gender - allowing the use of hypothetical comparators in direct gender pay claims and making contractual pay secrecy clauses unenforceable
- for gender reassignment - removing the requirement for individuals to be under medical supervision before gaining protection and extending indirect discrimination to cover transsexuals
- for direct discrimination - harmonising the law to provide protection to those who are perceived to have, or are associated with someone who has, a protected characteristic
- for indirect discrimination - harmonising the definition across all of the protected characteristics
- for victimisation - removing the requirement for a claimant to have a comparator, so that it will only be necessary to show that a detriment has been suffered
- for harassment - extending protection from third party harassment to all protected characteristics
- for tribunals - permitting them to make recommendations that benefit the wider workforce and not just the claimant.
Further changes to come into force
The Equality Act passed into law in the last few days of the previous Labour Government and although the Coalition Government was broadly supportive of the Act, there are a number of its provisions which will be subject to further consultation and/or consideration, including:
- for the public sector - whether there should be a new duty on certain public authorities to consider socio-economic disadvantage when taking strategic decisions about how to exercise their functions and how best to implement the public sector single equality duty
- for race - whether the definition should be extended to include caste
- combined discrimination - whether to introduce the concept of discrimination based on the interaction of two protected characteristics, for example race and sex
- positive action - whether to allow employers to recruit or promote someone from an under-represented group where they have a choice between two or more equally qualified candidates
- gender pay gap reporting - it has been suggested that the requirement for large employers to report on their gender pay gap should only be enforced where an employer has already been found liable for discrimination
- default retirement age - although not specifically referred to in the Act, the Government is currently consulting on the abolition of the default retirement age of 65 from October 2011. If the proposal is implemented then no new notices of intended retirement may be issued after 6 April 2011.
How can employers align with changes?
As is the case with the introduction of any new legislation, it would be prudent for employers to review their policies and procedures to ensure that they are compliant with the new laws. In practical terms however, it may be unlikely that employers will need to think about discrimination very differently, as the Act essentially consolidates existing law rather than recreating it.
Employers should be aware of the changes and the fact that the increased publicity and media attention the Act has received means that employees may be more inclined to enforce their rights.
However, the bottom line is that employers should continue to follow good employment practices, be inclusive, treat employees with dignity and make decisions based on merit and not preconceived stereotypes.