Martin Malone considers the law in this fast moving and important area of employment law.

Unlawful discrimination is the most serious and one of the most complex areas of employment law. The modern law gives a wide degree of protection to those people who have, are associated with or who experience less favourable treatment because of protected characteristics. Those characteristics are Sex, Sexual Orientation, Disability, Race, Religion or Belief, Age, Pregnancy and Maternity, Gender Reassignment and Marital Status.

The Equality Act 2010 came into force on October 1st and covers all forms of discrimination. Our comprehensive guide to the Act and its impact on discrimination law can be found below.

We understand the problems faced by employees who believe that they are suffering discrimination and understand that there is no "one size fits all" solution to a particular situation. A lawyer advising an employee who has been discriminated against needs to be able to advise on the law and how it relates to the facts, to listen to the employee and understand their particular situation and the outcome that they desire, to understand the effect that discrimination can have on an individual and to work with the employee to determine a case plan to achieve the best result possible and then have the skill to put that plan into action.

At Canter Levin & Berg, we advise on discrimination issues on a daily basis. Our lawyers have decades of experience in the field of discrimination and have acted in some of the most important cases in recent years. Our lawyers regularly appear in Employment Tribunals and the Employment Appeal Tribunal involving complex discrimination issues in all areas. If you believe that you have been discriminated against it is essential that you take legal advice immediately in order to properly determine your options. Discrimination law is incredibly complex and legal advice and representation is vital in order for you to resolve the issues that you are facing, whatever they may be.

The Equality Act

The Equality Act 2010 ("the Act") brings together and replaces previous legislation (such as the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995).

Most of the Act came into effect in October 2010. This guidance note covers the main changes coming into effect, offering a general overview of the Act and how it specifically affects employees.

The Act is largely beneficial as it simplifies the law and ensures consistency to allow employees to be aware of their rights.

The Act covers the same groups that were protected by the previous equality legislation; age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership and, pregnancy and maternity.

However, these groups have now been renamed as "protected characteristics" and the Act has added further protection to some of the protected characteristics which was lacking in previous legislation. Protected characteristics will be discussed in more detail later in this guidance note.

Types of discrimination: definitions

Unlawful discrimination can occur in a number of different ways (for the avoidance of doubt all of the below apply to employment situations):

Direct discrimination (s.13 EA 2010)

You must not treat a person less favourably than another because of a protected characteristic.

Indirect discrimination (s.19 EA 2010)

An employer must not do something to people who share a particular protected characteristic that would disadvantage them over people who do not have that characteristic. This is relevant where an employer has a condition, rule, practice or policy that applies to everyone but that disadvantages people who share a protected characteristic.

Indirect discrimination can be acceptable if you can show that it is objectively justified, i.e. that it was "a proportionate means to achieving a legitimate aim". For example, if an employer can show that they acted reasonably in managing their business. In order to be proportionate an employer should act fairly and reasonably and be able to show that they have considered less discriminatory alternatives to any decision made.

With regards to previous legislation, indirect discrimination already applied to age, race, religion or belief, sex, sexual orientation and marriage and, civil partnership, and is now extended to cover disability and gender reassignment.

Associative discrimination

An employer not treat a person worse than someone else because they are associated with a person who possesses a protected characteristic.

Previously, associative discrimination applied to race, religion or belief and sexual orientation and has now been extended to cover age, disability, gender reassignment and sex.

Perceptive discrimination

An employer must not treat a person worse because you incorrectly or correctly think they possess a protected characteristic.

Previously, perceptive discrimination applied to age, race, religion or belief and sexual orientation but has now been extended to cover disability, gender reassignment and sex.

Victimisation (s.27 EA 2010)

An employer must not treat someone badly because they have made or supported a complaint or raised a grievance under the Act. An employee will not be protected under this section if they have maliciously made or supported an untrue complaint. Under the Act there is no longer a need to compare treatment of a complainant with that of a person who has not made or supported a complaint.

Harassment (s.26 EA 2010)

Harassment is defined as, "unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of violating an individual's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual".

Harassment applies to all protected characteristics except for pregnancy and maternity and marriage and civil partnership. Under the Act an employee will now be able to complain of behaviour they find offensive even if it is not directed at them, and they do not need to possess the protected characteristic themselves.

Third party harassment

The Act now makes employers potentially liable for harassment of their employees by third parties who are not employees of the company, for example customers or clients.

However, in this situation an employer will only be liable where:

• harassment has occurred on at least two previous occasions;
• the employer was aware that the harassment had taken place; and
• has not taken reasonable steps to prevent it from happening again.

Previously, third party harassment applied to sex but has now been extended to cover, age, disability, gender reassignment, race, religion or belief and sexual orientation.

Protected Characteristics

As stated earlier, protected characteristics include the following:

• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race
• Religion or belief
• Sex
• Sexual orientation

The following are key points from the Act relating to each protected characteristic:

Age

It is unlawful to discriminate against an employee because of their age. Age discrimination can take many forms; for example, by selecting older members of staff in a redundancy selection exercise, by replacing an older employee for a younger employee or forcing an employee to retire before the state retirement age without good reason for doing so.

Although the act protects people of all ages, different treatment because of age is not classed as unlawful direct or indirect discrimination as long as the employer can justify his actions by demonstrating that it is a proportionate means of meeting a legitimate aim. Age is the only protected characteristic that allows employers to justify direct discrimination.

The Act also continues to permit employers to have a default retirement age for employees of 65.

Disability

The Act has provided a new definition of disability with a broad meaning. Disability is now defined as, a physical or mental impairment that has a substantial and long-term adverse effect on the ability to carry out normal day to day activities. As a result of the broad definition it has been made easier for a person to show that they are disabled and thus be protected from disability discrimination.

The Act puts a duty on employers to make reasonable adjustments for employees to help them overcome any disadvantages resulting from impairments.

The Act provides a new protection for disabled people; an employer must not treat a disabled person unfavourably because of something arising in consequence of their disability where you cannot show that what you are doing is a proportionate means of achieving a legitimate aim (i.e. objectively justified).

As stated earlier, indirect discrimination now covers people with a disability. This means that if an employer has a particular rule or requirement this could disadvantage people with the same disability. Unless an employer can justify this, this would be unlawful indirect discrimination.

There is also a new provision provided in the Act which makes it unlawful, except in certain circumstances, for employers to ask about a job applicant's health prior to offering them the job.

Gender reassignment

The Act provides a new definition for gender reassignment; a transsexual person is someone who proposes to, starts or has completed a process to change his or her gender. It is no longer a requirement that a person must be under medical supervision to gain protection. Therefore a man who decides to live permanently as a female but does not undergo any medical procedures would be protected. However, transgender people such as cross dressers, who do not intend to live permanently in the opposite gender, will not be protected by the Act.

Employers will discriminate against transsexual employees if they are treated less favourably for being absent from work because they propose to undergo, are undergoing or have undergone gender reassignment than they would be if they were absent from work because they were ill or injured. Employers must not regard medical procedures for gender reassignment as a 'lifestyle' choice.

Marriage and civil partnership

The Act protects employees who are married or in a civil partnership against discrimination. Single people are not protected.

Pregnancy and maternity

Pregnancy discrimination is one of the most common forms of discrimination. A female is protected against discrimination on the grounds of pregnancy and maternity during the period of pregnancy and any statutory maternity leave she is entitled to. This is not to be treated as sex discrimination during this period. If an employer dismisses or treats a pregnant employee less favourably than an employee who is not pregnant, they will have discriminated against that employee. An employer must not take into account an employee's period of absence due to pregnancy-related illness when making a decision about her employment.

Race

An employer must not dismiss an employee or treat him or her less favourably on the grounds of his or her race. The word "race" includes colour, nationality and ethnic or national origins. Race discrimination can be either direct, indirect or take the form of harassment, perception discrimination or victimisation.

Religion or belief

The Act states that religion includes any religion and also includes a lack of religion, therefore employees are protected if they do not follow a certain religion or have no religion at all. A religion must also have a clear structure and belief system. Belief is defined as any religious or philosophical belief or a lack of such belief. To be protected, a belief must satisfy various criteria.

It should also be noted that discrimination because of religion or belief can occur even where both the discriminator and recipient are of the same religion or belief.

Sex

Both men and women are protected under the Act. Sex discrimination takes many forms and is one of the most common forms of discrimination. Women suffering less favourable treatement on the grounds of their sex is the most common area of sex discrimination. Sex discrimination can be either direct, indirect or take the form of harassment, victimisation and equal pay.

Sexual orientation

It is against the law to dismiss, treat less favourably, harass, victimise or dismiss any employee due to their sexual orientation; be they homosexual, bi-sexual or otherwise. Sexual orientation discrimination can be either direct, indirect or take the form of harassment, victimisation and perception discrimination.

Further key changes

Positive action

The Act allows employers to take positive action if they believe that job applicants or employees with a particular protected characteristic suffer a disadvantage linked to that characteristic, or if their participation in an activity is disproportionately low. Positive action is voluntary and therefore employers do not have to take positive action.

Pre-employment health-related checks

The Act limits the circumstances in which an employer is able to ask health-related questions prior to offering an individual a job. At this stage an employer is only allowed to ask health-related questions in certain circumstances in order to help him:

• Ascertain whether any reasonable adjustments need to be made for the recruitment process;
• Ascertain whether an applicant can take part in an assessment as part of the recruitment process;
• Decide whether an applicant can carry out a task which is intrinsic or absolutely fundamental to the job;
• Monitor diversity among applicants;
• Carry out a positive action to assist disabled people, such as improving disabled people's employment rates;
• Ascertain that the applicant has a specific impairment that is a genuine occupational requirement for a particular job;
• Ask questions relating to a requirement to vet applicants for the purposes of national security.

Once the employer has offered the applicant a job they are permitted to ask appropriate health-related questions, regardless of whether the offer they have made is conditional or unconditional.

Extension of employment tribunal powers

The Act has now extended the tribunal's powers so that it is now possible for a tribunal to make recommendations that an organisation takes steps to eliminate or reduce the effect of discrimination on other employees, not just the claimant as previous law allowed. For example, the tribunal might order that an employer needs to train all staff about victimisation and harassment.

Sex discrimination and equal pay

As with the previous legislation, in most circumstances a challenge by an employee to pay inequality still has to be made by comparison to a real person of the opposite sex in the same employment.

However, a change in the Act now allows a claim to be made for direct pay discrimination even if there is no real person to make a comparison with. Therefore an employee may have a claim under direct sex discrimination where they can provide evidence that if they were a different sex they would have received better pay from their employer.

Pay secrecy

The Act now makes it unlawful for an employer to prevent or restrict its employees from discussing their pay in order to establish if difference in remuneration exists and is related to a protected characteristic. The Act also makes terms of the contract of employment relating to pay secrecy unenforceable.

An employer can however, require their employees to keep pay rates confidential from some people outside the place of work, such as a competitor.