Equality Act 2010

Harriet Harman was the architect of the Equality Act 2010. If we are to believe her rhetoric, the Act will stand as a creed akin to a New Commandment! She claims the Act

“will promote fairness and equality of opportunity; tackle disadvantage and discrimination; and modernise and strengthen our law to make it fit for the challenges that our society faces today and in the future.”

That all sounds so laudable! It also sounds just a little like Big Brother. Not the farcical and pointless Reality TV show, but the George Orwell dictator in 1984. Perhaps New Labour was, even in 2010, still living in the long and gloomy shadow of the Modernist post War social engineering.

Having said this, it was the Con-Dems who signed the 2010 Act into force.

There is little doubt that the 2010 Act will grow into the fabric of Employment Law. Therefore it will need to be understood by employers. Much like the Budget Cuts, the 2010 Act is inescapable!

Summary of significant technical changes

Changes to the burden of proof

The burden of proof across almost the entire spectrum of Civil Law is formulated as the ‘balance of probabilities.’ What this means is that “He who asserts must prove.” However, under the 2010 Act things are not quite so straightforward.

The 2010 Act makes some claims easier to prove, whilst making others more difficult.

Take Constructive Dismissal. An employee who walks out of his or her job because the employee claims that the employer’s conduct amounted to dismissal in all but name, is entitled to bring a claim against the employer under the doctrine of Constructive Dismissal. In this case the burden of proof falls upon the employee to provide objective evidence that the employer’s conduct was so unreasonable that resignation was the only option. This is a high bar to get over.

However if the resignation was linked to an act of discrimination, the burden of proof shifts to the employer. The employer has to provide an adequate explanation. This will be a matter of paper trails – documentary evidence – proving that the employer, contrary to the allegations of discrimination (whatever they may be) had been actively addressing and seeking to resolve the complaints raised. As lawyers say, employers who put evidence together ex-post facto – or in English, after the fact – will often find that the holes are unplugable.

It is inevitable, in our view, that the 2010 Act will result in disgruntled employees wanting to find they have been discrimination against because the lawyers will, equally inevitably, advise them how much easier it will be to then set up a persuasive case.

Limited number of protected act grounds of discrimination

Before the 2010 Act there was no limitation placed on the potential grounds of discrimination a Claimant could pursue at one time in one claim. Under the 2010 Act, however, only two protected Act grounds may be joined in one cause of action.
This has the benefit, at least from the employer’s point of view, of avoiding a whole firing squad of weak but numerous grounds of discrimination being alleged when the Claimant, and the lawyers, know perfectly well that volume can make up for substance.

Postive discrimination

This has been a hot top for some decades now – which means, of course, that it is not a hot topic at all. That is not intended to be facetious. Postive discrimination is one of those issues that has been discussed by the intelligensia for so long that you may be forgiven for thinking it’s a bit like theories relating to the origin of life.

Having said this, the 2010 Act does go further than our law has gone before.

Postive discrimination, the purpose of which is to circumvent the possibility of potential discrimation claims, is prohibited. Employer cannot positively discriminate simply to get around a potential discrimination claim.

But, by putting into effect a formal and coherent policy actively addressing the need to recruit from ethnic groups, for instrance, is encourged under the act. Specifically, employers are encouraged to discriminate in favour of women and ethnic minority groups, and to stamp out age discrimination.

It may be argue that this contradicts a core principle of the general law which is to be fair in recruitment processes. Indeed, this is one of the aspects of the 2010 Act which has the feel of Big Brother.

And the objective is certainly a political. Positive discrimination does not represent a simple amendment to the mechanics of general law of employment. Which perhaps makes it all the more surprising that the Con-Dems signed the 2010 Act into law. Although, without wishing to be too polemical, the Con-Dems have already shown an inclination to support and implement policy to which the law of unintended consequences certainly applies.

It appears that the aim of positive discrimination is to encourage certain groups in our society to apply for jobs that were historically regarded as inappropriate for them. This could represent a significant challenge to institutionalised models of accepted recruitment practice.

Investigating health and fitness

The disability of a prospective employee was, without doubt, a strong reason for a prospective employer to decline to offer a job.

The 2010 Act, however, probibits the prospective employer delving into the prospective employee’s medical history.

Pre-employment health questions will only be allowed if the role has already been offered but is conditional on positive health checks that are a prerequiste for the job. It is assumed that this protects, for instance, football clubs. Or employers whose business is fitness, or some kind of sporting activity, or requires physical strength or proven dexterity.

Pay discrimination secrecy

Before you can handle the concept of eqality, you must make room for it.

The Equal Pay Act was introduced over 40 years ago. It’s purpose was to eliminate the pay disparity between men and women. Clearly that didn’t work – although, whatever anecodotal stories circulate, the pay gap is certainly less inflexible and less clear than it was 40 years ago.

One of the ways that employers who did perpetuate pay discrimination would hide behind the glass ceiling, was through the use of pay secrey clauses. The 2010 Act makes these clauses unenforceable.

Furthermore, the Act places a positive obligation on private sector employers with 250 or more staff to publish information about the differences in pay between male and female employees. Public sector bodies with 150 staff or more will be required to publish their gender pay gaps from next year.

Association with someone suffering discrimination

Many people who witness their collegues being treated less favourably due to race, gender, sexual orienation, disability or religious belief’s, feel that they cannot speak up on behalf of those colleagues because of fear of being victimised themselves.

Under the 2010 Act, if an individual suffers direct discrimination due to their association with someone who has a protected characteristic, this will itself be a ground of discrimination.

Comment

“Wisdom is the power to put our time and our knowledge to the proper use.” Thomas J. Watson (General Manager IBM)

Over the past 40 years, it has been recognised that the working environment requires employees to interact with one another, but often such interaction is tainted by those who embrace inequality as a justification to promote their own notion of superiority.

It is essential that the employer provides an environment that encourages harmonious interaction that respects differences of gender, sexual orientation, race, ability and religious beliefs.

Does the 2010 Act help to promote positive interaction?

By reducing 9 major pieces of legislation and around 100 statutory instruments into a single Act, it should be easier to identify the issues that are prohibited within a working environment, and it should therefore be harder for employers to ignore the extent of the duties they owe with respect to equality and diversity in the workplace.

What we do not know yet, however, is how the Tribunals will interpret the duties that are specified in the 2010 Act.

We do not know, for instance, whether the reversal of the burden of proof will be honoured in the breach – Judges have a tendency, whether it be in the general Civil Law or within the Criminal jurisdiction, to find reasons to justify their decisions rather than to apply the law as it is drafted. The concept of “distinguishing” a case on the facts, is a fine old trick of the Judiciary which goes back far into the days when the countryside was ruled not by law but by paternalism.