Equality Act - How this Changes the Current Law

The Equality Act aims to make rights simpler by bringing together nine pieces of legislation and creating a list of “protected characteristics” on which it is unlawful to discriminate: age, disability, gender, gender reassignment, race, religion, sexual orientation, marriage and maternity.  The following outlines how the act changes the current law.

Dual Discrimination 

Current law: People falling into more than one disadvantaged group experience discrimination; for example a woman that is also Indian.  Currently separate claims would need to be brought under sex and race discrimination and an employment tribunal cannot determine that the individual is being discriminated against on the combined ground of being an ‘Indian woman’.

 What's changing? The new rules will facilitate dual discrimination claims on the grounds of two protected characteristics. An individual cannot bring a claim on the grounds of being a "young Indian woman" as this combines three characteristics.

Positive Discrimination in Recruitment

Current law: Employers can use positive action to target under-represented groups during the recruitment process, such as advertising vacancies in under-represented communities. However, they cannot recruit someone purely because of their protected characteristic.

What's changing? The Act will allow employers to take proportionate measures to hire someone from an under-represented group provided they are equally qualified.

Ban on pre-employment Health Questions

Current law: Employers are currently allowed to ask prospective employees questions on health, provided that such questions (or questionnaires) do not constitute discrimination and are for a valid purpose.

What's changing? Employers will not be allowed to ask pre-employment health questions unless:

  • The employer has already offered the role to the employee which may be a conditional offer (e.g. subject to satisfactory health checks).
  • Where one of the limited exceptions in the Act is met, for example, questions to ascertain whether the applicant will be able to carry out a function that is fundamental to their job role; for example a construction company would need to know whether a candidate could lift heavy goods as it could be an essential part of the job.

Pay Gagging Clauses

Current law: Currently many employers include pay secrecy clauses in their contracts to prohibit employees from discussing their pay.

What's changing? Under the Act, pay secrecy clauses will be unenforceable against an employee who discusses pay for the purposes of ascertaining whether they are being discriminated against. For example, a woman asking a male colleague in the same role what he earns to find out if she is being paid less. Two male colleagues will not be able to discuss their pay because pay secrecy clauses will remain enforceable provided there are no discrimination issues.

 Gender Pay Gap Reporting

Current law: At present is no requirement for an employer to disclose to the public the amount its staff are paid.

What's changing? The Act creates an 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.

Under the Labour Government, the intention was to encourage employers to disclose this information on a voluntary basis and only to bring the compulsory obligations into force from April 2013 (at the earliest) if sufficient progress on pay reporting had not been made. Whether these requirements come into force at all under the Coalition Government remains to be seen.

Associative and Perceptive Discrimination

Current law: The current law in this area is inconsistent.

What's changing? All forms of direct discrimination based on association with someone who has a protected characteristic and perception related to a protected characteristic will be prohibited. This prohibits discrimination, for example, against an individual because their wife has a disability or because it is perceived that an individual is gay (even if they do not).