The Equality Act 2010 - an Overview for Solicitors
Introduction
1. Equality and diversity has always been an important issue for law firms of all types and sizes, and those who have embraced equality in its fullest sense have usually found that their practice has improved as a result, and that its staff and clients have benefited. However, in addition to the general benefits which arise from the adoption of an equal and diverse method of working, there is a growing regulatory imperative for firms to adopt equal and diverse practices and to address any potential discriminatory issues within their firms. That regulatory imperative has come from a number of directions including a recent warning card from the SRA entitled "Equality and Diversity Obligations", a new guidance and policy from the Legal Services Commission and, most recently, from the introduction of the new Equality Act at the beginning of October 2010.
2. This lecture looks at some of the changes brought about by the Equality Act 2010 ("Equality Act") and in particular looks at how these are likely to affect those managing a legal practice. The vast majority of the information that follows will be equally applicable to commercial and small business clients, and the implications of the Act stretch far wider than the arena of employment litigation: put shortly the Act pervades every aspect of the human interactions inherent in business and legal practice. The Equality Act runs to some 238 pages (in its printed form) and contains a total of 218 sections and 28 schedules. Inevitably, therefore, a summary can only scratch the surface of the provisions.
3. Prior to the introduction of the Equality Act, anti-discrimination laws were contained in a number of different statutory and regulatory provisions. The Equality Act replaces those provisions with one single Act which simplifies the law, removes many of the inconsistencies between the application of the different forms of protection and, hopefully, makes the law easier to understand and benefit from.
4. The provisions which the Equality Act replaces include:
• Equal Pay Act 1970
• Sex Discrimination Act 1975
• Race Relations Act 1976
• Sex Discrimination Act 1986
• Parts of Employment Act 1989
• Disability Discrimination Act 1995
• Employment Equality (Religion or Belief) Regulations 2003
• Employment Equality (Sexual Orientation) Regulations 2003
• Parts of Civil Partnership Act 2004
• Most of Employment Equality (Age) Regulations 2006
• Equality Act (Sexual Orientation) Regulations 2007
The discrimination provisions contained in legislation such as the Part-time Workers (Prevention of Less favourable Treatment) Regulations 2000 and the Work and Families Act 2006 are not directly affected.
5. In this lecture we will look at a number of aspects of the new Equality Act, including:
Protected characteristics – what they are and how they differ, if at all, from the definitions in earlier legislation for the areas of protection;
Prohibited conduct – and in particular those areas where there have been changes or additions, such as in relation to perceptive discrimination and third-party harassment;
Adjustments for disabled persons – even though much of this remains the same, there have been some important amendments;
Barristers and advocates – although this stays very much as it was, it is an important area for legal professionals to bear in mind;
Positive action – although voluntary, many firms may wish to use the provisions to broaden the scope of their practices;
Pre-employment health related checks – a new provision which firms need to be aware of when recruiting staff;
Extension of tribunal powers – in particular in relation to changes that can be required to firm practices;
Equal pay – including information about pay protection schemes, pay privacy & statistics;
Other changes and provisions; and
Implications for practice.
Protected Characteristics
6. The main part of the Equality Act begins by setting out what it describes as protected characteristics. These are to be found in Chapter 1 of Part 2 of the Equality Act and are:
• age;
• disability;
• gender reassignment;
• marriage and civil partnership;
• pregnancy and maternity;
• race;
• religion or belief;
• sex;
• sexual orientation.
7. Most of these characteristics are defined as they were previously; however, disability and gender reassignment receive new definitions. The definitions for the protected characteristics are set out in the Equality Act in sections 5 to 11.
Age
8. This is dealt with in section 5. A person discriminates on the basis of age if he or she treats another person less favourably because they are of a particular age or belong to a particular age group.
9. Whilst age discrimination currently only applies in the employment or vocational training sector, the intention of the legislation is that it will also offer protection in relation to the provision of goods and services. This is unlikely to come into force before 2012 and will, in any event, only apply to those aged 18 or over. Note also that age is the only area where direct discrimination can be lawful, but only if it can be justified on the basis that it is a proportionate means of achieving a legitimate aim. Finally, note that by reason of Schedule 9 Part 2 it is not an age contravention to dismiss a relevant worker at or over the age of 65 if the reason for the dismissal is retirement. The age at which this operates may be increased in the future.
Disability
10. As might be expected, provisions in relation to disability are to be found throughout the Equality Act. In relation to definitions, the principal parts are section 6 and Schedule 1. As in previous legislation a person is deemed to be disabled for the purposes of the Equality Act if they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
11. However, the Equality Act provides some additional protections not previously available. These include:
• making a provision that it will be discrimination if a person with a disability is treated less favourably because of something which arises from the disability – e.g. spelling errors caused by dyslexia – provided that the employer knew, or could reasonably be expected to have known, about the disability;
• making indirect discrimination relevant to disability discrimination;
• removing the need to consider the list of capacities when deciding if a person has a disability; and
• making it unlawful, except in certain circumstances, to enquire about a candidates health before offering them work.
Gender reassignment
12. Section 7 of the Equality Act provides that a person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex. This is a new definition and no longer requires that a person be under medical supervision to be protected.
13. However, there does need to be a degree of permanency. Thus a person who cross-dresses but does not intend to live permanently in the opposite gender would not be protected whereas someone who did intend to live permanently in the other gender but who chooses not to undergo a medical procedure would be. Note also that it would be discriminatory to treat a transsexual person less favourably for being absent from work in connection because of the medical aspects of gender reassignment than they would be treated if they were ill or injured.
Marriage and civil partnership
14. Section 8 provides protection to employees (note the provisions do not apply to other areas such as the provision of services) who are married or in a civil partnership. It does not provide protection to those who are not married or in a civil partnership.
Pregnancy and maternity
15. Although pregnancy and maternity are listed in Section 4 it is not accorded a definition in Chapter 1. Instead it is dealt with in more detail in Chapter 3 with sections 17 and 18 providing more details as to the non-work and work cases (respectively). The provisions in the Equality Act are largely unchanged from the previous legislation. They provide that a person discriminates against a woman in non-work cases if:
• he/she treats her unfavourably because of her pregnancy or,
• in the period of 26 weeks beginning with the day on which she gives birth he/she treats her unfavourably because she has given birth.
16. It should be noted that the reference to unfavourable treatment because a woman has given birth will include treating her unfavourably because she is breast-feeding.
In work cases, the Equality Act provides that a person discriminates against a woman if:
• he/she treats her unfavourably because of pregnancy or illness suffered as a result of pregnancy,
• he/she treats her unfavourably because she is on maternity leave,
• he/she treats her unfavourably because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave.
Race
17. The definition of race is to be found in section 9 and remains unchanged and is on the basis of colour, nationality, and ethnic or national origins. Note that a racial group can be made up of two or more different racial groups (e.g. Black Britons).
Religion or belief
18. Religion or belief is dealt with in Section 10 of the Equality Act and remains substantially unchanged from the previous legislation. It provides that:
• religion can mean any religion and includes a reference to a lack of religion, and
• belief means any religious or philosophical belief and includes a reference to a lack of belief.
19. A few additional points should be noted:
• to be protected a religion must have a clear structure and belief system and a belief must include a substantial aspect of human life and behaviour,
• denominations and sects within a religion can be protected, and
• discrimination can occur even though both the person carrying out the discrimination and the recipient of the discrimination are of the same religion.
Sex
20. This is dealt with in section 11 and there is no substantial change from the previous law. Note that it applies both to men and women.
Sexual orientation
21. This is dealt with in section 12 and again there is no substantial change from the previous law. Note that a heterosexual person can be discriminated against by a gay or lesbian person.
Prohibited Conduct
22. Chapter 2 of Part 2 of the Equality Act deals with what it describes as prohibited conduct. In other words it sets out what it regards as discriminatory activity. As well as some familiar terms, such as direct discrimination and harassment, the Equality Act also contains some new forms of discrimination such as associative discrimination. This section looks briefly at each of the forms of prohibited conduct.
Direct discrimination
23. This is dealt with in section 13 and occurs where person A treats person B less favourably than they would treat others because B has, is thought to have, or associates with someone who has, a protected characteristic.
Associative discrimination
24. This is defined as direct discrimination by A against B because B associates with a person who has a protected characteristic. This applied previously to race, religion or belief and sexual orientation but has now been extended to apply also to age, disability, gender reassignment and sex.
Perceptive discrimination
25. This is defined as direct discrimination by A against B because A believes B to have a protected characteristic, whether or not B actually possesses that characteristic. This applied previously to age, race, religion or belief and sexual orientation and now applies also to disability, gender reassignment and sex.
Combined discrimination; dual characteristics
26. This is dealt with in section 14 and occurs where, because of a combination of two relevant protected characteristics, person A treats person B less favourably than person A treats, or would treat, a person who does not share either of those characteristics. These provisions apply only to age, disability, gender reassignment, race, religion or belief, sex and sexual orientation, apply only to direct discrimination and are not likely to come into effect until 2011.
Indirect discrimination
27. Dealt with in section 19, this occurs where person A has a condition, policy, provision, criterion or practice which is applied to everyone but puts at a particular disadvantage people who have a protected characteristic and person A cannot show it to be a proportionate means of achieving a legitimate aim. This provision already applied to age, race, religion or belief, sex, sexual orientation and marriage and civil partnership, but now it is extended to include disability and gender reassignment. For the purposes of indirect discrimination, a legitimate aim is a lawful decision made by A which benefits a business or organisation and which is a proportionate means of achieving that benefit.
Harassment
28. Harassment is defined in section 26 as occurring where person A engages in unwanted conduct which is related to a relevant protected characteristic and that conduct has the purpose or effect of violating B's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
29. For the purposes of harassment, the protected characteristics are age, disability, gender reassignment, race, religion or belief, sex and sexual orientation.
30. It should also be noted that harassment can now be discriminatory even when it is not directed at the complainant and where the complainant does not have the protected characteristic.
Third party harassment
31. There are circumstances where harassment can be of an employee by a third party. The Equality Act renders employers potentially liable if their employees are harassed by people other than employees of the company, for example customers or suppliers. It should be noted, however, that liability will only arise when harassment has occurred on at least two previous occasions and the employer was aware that it had taken place but failed to take reasonable steps to prevent it from happening again.
Victimisation
32. Section 27 provides that person A victimises person B if A subjects B to a detriment because B does, has done or may do a protected act. For the purposes of this section, a protected act is defined as:
bringing proceedings under the Equality Act;
giving evidence or information in connection with proceedings under the Equality Act;
doing any other thing for the purposes of or in connection with the Equality Act; or
making an allegation (whether or not express) that A or another person has contravened the Equality Act.
33. Note, however, that giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith and that this section applies only where the person subjected to a detriment is an individual.
Adjustments for Disabled Persons
34. In addition to discriminatory conduct, chapter 2 of the Equality Act also deals with adjustments which must be made for those with a disability. This draws together all of the previous duties to which suppliers and employers were subject, and extends them further. This section looks in outline at those adjustments.
35. The duty to make adjustments, which is contained in section 20 of the Equality Act, is divided into three parts:
• First, where a provision, criterion or practice of A (where A is the person upon whom the duty is imposed – e.g. an employer or service provider) puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, then A must take such steps as it is reasonable to have to take (the reasonable adjustment) in order to avoid the disadvantage,
• Secondly, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, A must take such steps as it is reasonable to have to take (the reasonable adjustment) in order to avoid the disadvantage, and
• Thirdly, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, A must take such steps as it is reasonable to have to take (the reasonable adjustment) in order to provide the auxiliary aid.
36. In addition to the provisions contained in this section there are a number of other provisions relating to specific aspects of disability. For example, Part 12 of the Equality Act deals with transport and disability, Part 13 deals with housing issues and many of the Schedules deal with specific instances, reasonable adjustments and exceptions to those reasonable adjustments.
37. A number of additional provisions in section 20 are also worth noting:
• In relation to the provision of information, reasonable steps could include ensuring that the relevant information is provided in an accessible format.
• Where someone is subject to a duty to make reasonable adjustments they are not entitled to require a relevant disabled person to contribute towards the costs of complying with the duty.
• Where the reasonable adjustment is in relation to a physical feature this could include removing or altering that physical feature, or providing a reasonable means of avoiding it.
• By physical feature the section means:
• a feature arising from the design or construction of a building,
• a feature relating to the approach or access to, or exit from, a building,
• a fixture or fitting, or furniture, furnishings, materials, equipment or other chattels, in or on premises, or
• any other physical element or quality.
Barristers and Advocates
38. The Equality Act continues to make provisions specifically for barristers and advocates, as did the previous legislation. The provisions are to be found principally in sections 47 and 48, although there is a provision relating to positive action in respect of barristers and advocates (see below) in section 159.
39. The Equality Act provides that:
A barrister must not discriminate against, or victimise, a person:
• in the arrangements he/she makes for deciding to whom to offer a pupillage or tenancy,
• in the terms of any pupillage or tenancy, or
• by not offering a pupillage or tenancy;
A barrister must not discriminate against, or victimise, a person who is a pupil or tenant:
• as to the terms offered to that pupil or tenant;
• in the way that pupil or tenant is afforded access to opportunities for training or gaining experience or for receiving any other benefit, facility or service;
• by terminating the pupillage;
• by subjecting the pupil or tenant to pressure to leave chambers; or
• by subjecting the pupil or tenant to any other detriment.
A barrister must not, in relation to a pupillage or tenancy, harass a pupil or tenant or someone who has applied for pupillage or tenancy.
40. Mercifully this is not all one-way traffic: a person must not, in relation to instructing a barrister:
• discriminate against a barrister by subjecting the barrister to a detriment;
• harass the barrister; or
• victimise the barrister.
• It should also be noted that the duty to make reasonable adjustments applies to barristers.
Positive Action
41. As with earlier legislation, the Equality Act allows employers and others to take positive action if they believe that employees or job applicants who share certain protected characteristics are experiencing a disadvantage which is linked to that characteristic or are not participating sufficiently in a particular activity. The provisions are contained principally in Part 11 which deals with the advancement of equality and are to be found in sections 158 and 159.
42. To be allowed under these provisions, the proposed positive action, which is an entirely voluntary affair, must be a proportionate means of achieving a specific aim and may be to:
• enable or encourage persons who share the protected characteristic to overcome or minimise that disadvantage,
• meeting needs, or
• enable or encourage persons who share the protected characteristic to participate in a particular activity.
43. Section 159 specifically applies to employment and the use of positive action in relation to recruitment and promotion. However, positive action can only be used where:
• the person who is the subject of the positive action is as qualified as others being recruited or promoted. In other words promoting a less able applicant merely because of his or her race would not be acceptable;
• the employer does not have a policy of treating people with a particular protected characteristic more favourably than others are treated; and
• taking the action in question is proportionate.
Pre-Employment Health-Related Checks
44. Section 60 provides that a prospective employer must not ask about the health of an applicant before offering them work or before including them in a pool of people to whom work will be offered when it becomes available, unless it is in order:
• to establish whether reasonable adjustments are needed for the applicant in order to enable them to participate in the selection process,
• to establish whether the applicant will be able to carry out a function that is intrinsic to the work concerned,
• to monitor diversity in the range of persons applying to the prospective employer for work,
• to take positive action to assist a person with a disability, or
• in relation to work where it is a requirement to have a particular disability, to establish whether the applicant has that disability.
45. Note that once a person has passed through the application stage and been offered a job, whether conditional or unconditional, it then becomes permissible to carry out health-related checks.
Courts and Tribunals
46. The Equality Act has introduced a number of new provisions amending and extending the powers of the employment tribunal and county courts.
Time limits
47. It is worth noting that time limits under the Equality Act vary according to the venue. Section 118 provides proceedings under section 114 in the county court may not be brought after the end of:
• the period of 6 months starting with the date of the act to which the claim relates, or
• such other period as the county court thinks just and equitable.
• unless the claim is referred to the Equality and Human Rights Commission for conciliation, in which case the period is extended to nine months or whatever period the court thinks appropriate.
48. However, under section 123, proceedings on a complaint within section 120 in the employment tribunal may not be brought after the end of the period of 3 months starting with the date of the act to which the complaint relates, or such other period as the employment tribunal thinks just and equitable.
49. Note also that, in relation both to the county court and to the employment tribunal:
• conduct extending over a period is to be treated as done at the end of the period; and
• failure to do something is to be treated as occurring when the person in question decided on it.
• and that in the absence of evidence to the contrary, a person is to be taken to decide on failure to do something when that person does something inconsistent with doing it or on the expiry of the period when that person might reasonable have been expected to do it.
Power to make recommendations
50. Section 124 extends the powers of employment tribunals. Under the Equality Act, a tribunal can now make an order not only in favour of an applicant and in relation to a particular matter which is before that tribunal, but can also make an appropriate recommendation that, within a specified period, the respondent takes specified steps for the purpose of obviating or reducing the adverse effect of any matter to which the proceedings relate on the complainant and on any other person.
Burden of proof
51. Section 136 has regularised the position as to the burden of proof in discrimination cases. It provides that, except in relation to proceedings for an offence under the Equality Act (where the criminal burden of proof will apply), if there are facts from which the court could decide, in the absence of any other explanation, that a person contravened a relevant provision, then the court must hold that the contravention occurred unless the person can show that they did not contravene the provision.
Equal Pay
52. Although the provisions of the previous legislation are largely mirrored in the new legislation, there are a few significant changes to the way in which equal pay is dealt with, including in relation to comparators, pay secrecy and the publishing of information.
53. Under the old legislation, in order to show that there was a pay inequality it was necessary to find a comparator – someone of the opposite sex doing a comparable job who was being paid more. Now it may be possible for a person to show that, even though there is no real comparator, they would have been paid more if they had been of a different sex, even though there is no one of a different sex doing that work, or comparable work, for the employer. For further details as to the definition of a comparator see section 79.
54. In addition, the Equality Act also includes a new term which clarifies the position as to pay protection schemes and makes provisions which can make them lawful. Sub-section 69(3) states that a long-term aim of the legislation is to reduce pay inequality and is always to be regarded as a legitimate aim for the purposes of justifying pay practices that indirectly discriminate against women. Thus short-term pay protection schemes which have been introduced to remove long-term inequalities in pay could be objectively justified, provided that their use is a proportionate way of achieving that aim.
55. The Equality Act also deals with pay secrecy and makes it unlawful for an employer to prevent or restrict employees from discussing their pay for the purposes of establishing whether differences exist. However, it is still possible for employers to require employees to keep pay rates confidential outside of the work place – for example in connection with competitor organisations.
56. Finally in relation to pay, section 78 of the Equality Act gives power to make regulations which may require employers to publish information relating to the pay of employees for the purpose of showing whether, by reference to factors of such description as is prescribed, there are differences in the pay of male and female employees. This will not apply to employers with fewer than 250 employees and may not come into force for two to three years.
Other Changes
57. Amongst the provisions which we have not looked at here (and which may form the subject of future discussions) are:
• provisions relating to premises (sections 32 – 38);
• occupational pension schemes (section 61 – 63);
• education (sections 84 – 99);
• associations (sections 100 -107);
• enforcement (other than dealt with elsewhere) (sections 113 – 141);
• public sector duties (sections 149 – 157); and
• disabled persons' transport (sections 160 – 188).
to name but a few.
Practical Implications
58. Irrespective of the Equality Act, firms should already be taking steps to ensure that discrimination is stamped out and equality promoted. All of the main regulators have specific rules dealing with the matter and recently some regulators, in particular the Solicitors Regulation Authority, have started to be far more pro-active in following up issues of unfair treatment.
59. Aside, however, from the general duties imposed by the various regulations and the provisions to which firms have been subject before the introduction of the Equalities Act, what duties are you now subject to as a result of the new legislation and what should you be doing to ensure compliance? The following is an alphabetical list of the changed provisions of which you should be taking account.
Barristers and advocates
60. Although it is not a new requirement, the provision dealing with barristers and advocates is one which has been dealt with at length in the Equality Act and is worthy of mention. The Equality Act specifically provides in sections 47 and 48 that a person must not, in relation to instructing a barrister discriminate by subjecting the barrister to a detriment. The practical effect of this is that a firm must not withhold instructions from a barrister on the basis of a protected characteristic, even where the instruction to do so comes from the client.
61. Indeed, notes 15 and 16 of rule 6 of the Solicitors Code of Conduct 2007 specifically provide that :
"15. You should instruct barristers on the basis of their skill, experience and ability and it is unlawful to instruct them, or avoid instructing them, on the basis of any of the grounds in 6.01, or to request or encourage a barrister's clerk to do so.
"16. You should normally comply with a client's request to instruct a named barrister (subject to your duty to discuss the suitability of that barrister for a particular type of work). Where a client's instructions as to the choice of barrister are based on any of the grounds in 6.01, you should encourage the client to modify their instructions. If they refuse to do so, you should cease to act for them as aiding an unlawful act is prohibited."
Breastfeeding mothers
62. It is now unlawful for a business to discriminate against a woman because she is breastfeeding a child. You may, therefore, need to make certain arrangements to accommodate this – for example in waiting areas or offices. You must make sure that a mother who is breastfeeding is able to do so and the fact that other clients or staff might find this uncomfortable would not be a defence.
63. You may, therefore, wish to make available a private area near to reception where a mother could go to breastfeed although there is no obligation upon you to do so.
You should also take steps to ensure that all partners, members and staff are aware of the change to the legislation and the duties they now face. You will also be responsible for the behaviour of other clients towards the breastfeeding mother and if the mother is being treated unfairly must take steps to ensure that the behaviour ceases.
Disability
64. Be aware that the provisions relating to disability have been widened and now apply, inter alia, to indirect discrimination. Thus, if you have a provision or criterion or practice within your firm which you apply to everyone but which is more difficult for a person with a disability, or a specific disability, to comply with, then, unless you can show that there is an objectively justifiable business reason for it and it is a proportionate means of achieving a justifiable aim, you may find that you have discriminated against a person with a disability.
65. Bear in mind that the cost of changing a policy would not in itself be a sufficient reason for not making the change. A further factor to be aware of is that the new legislation places a burden on businesses not to treat unfavourably a disabled person where the treatment is not because they have a disability (which would be direct discrimination) but because of something connected with their disability. Thus, for example, if a person found spelling to be problem as a result of dyslexia, the firm may be found to have discriminated against them if they were to refuse to promote them because they could not spell, unless the firm could show that it was justifiable in all the circumstances to do so.
66. A factor to bear in mind in relation to this, however, is whether or not the firm had actual knowledge of the person's disability or should have realised that they had that disability.
67. Finally, firms should bear in mind the need for reasonable adjustments to prevent a person with a disability from being at a substantial disadvantage. The Equality Act sets out three requirements for making reasonable adjustments:
• Adjustments to a policy or procedure – firms need to monitor their policies and procedures to ensure that they do not put those with a disability at a disadvantage and then take steps to change or dispense with any policies and procedures which do.
• Adjustments that involve auxiliary aids and services – liaise with those who have a disability to see what aids and/or services you can put in place to accommodate their disability. An example of this might be providing an audio version of terms and conditions for those whose sight is impaired.
• Adjustments to physical features – look into making reasonable changes to premises and access to and egress from premises so as to accommodate the needs of staff and clients with, for example a mobility problem.
Employment tribunal recommendations
68. You need to be aware that if an employee brings proceedings against you in the employment tribunal that, in addition to any finding in favour of the employee, the tribunal may also order that you take steps to ensure that you act in such a way as to prevent discrimination from occurring against other employees within the organisation.
Equal pay
69. It is now possible for someone in your organisation to allege that they are not receiving equal pay even where there is no direct comparator for them to use.
Gender reassignment
70. It is unlawful to discriminate against or harass all transsexual staff and clients, whether or not they are undergoing a medical procedure. You will need, therefore, to be aware of any staff or clients who have indicated n intention to change gender, even if they do not intend to undergo a medical procedure, and respond accordingly.
You must therefore ensure that all partners, members and staff are aware that they must not discriminate in these circumstances.
71. One question which always occurs in relation to transsexual men and women is in relation to toilet and changing facilities. This is going to become even more sensitive now that a person does not even need to be intending to undergo a medical procedure. Often both male and female staff will indicate a reluctance to share toilet and changing facilities with someone who is either still, or has recently been, of the opposite sex. Unfortunately, there is no easy answer to the problem and it will have to be handled with some care and delicacy, balancing the interests of the transsexual person against those of the remainder of the staff. If the situation arises, firms should:
• take steps to raise the issue with the transsexual person and find out what they would like to do. They may not feel comfortable sharing facilities either;
• assess the likely impact upon other staff and clients in terms of privacy/embarrassment;
• assess the impact upon the business of acquiescing to any requirement by the transsexual person to be allowed to use the facilities of their chosen as opposed to birth sex;
• see whether an alternative solution, such as unisex toilets and changing facilities can be used;
• ascertain whether the problem is simply just one of understanding on the part of other staff and where necessary provide training and guidance.
Harassment
72. The Equality Act deals with two main forms of harassment:
• unwanted conduct related to a protected characteristic, and
• unwanted conduct of a sexual nature.
73. As a firm you must ensure that neither you, nor any of your staff, suppliers or clients, engage in activity of this nature. Bear in mind the following points:
• the conduct must have the purpose or effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment;
• it is harassment to treat someone less favourably because they have rejected or submitted to sexual harassment;
• whilst harassment occurs only if it is unwanted, nevertheless it is unlawful whether it was intended or not;
• the perception of the person being harassed of the behaviour is relevant;
• the conduct does not have to directed at the person for it to be capable of being harassment; and
• the person does not have to have a protected characteristic for them to be capable of feeling harassed by actions related to it.
74. Bear in mind also that there is a concept of third-party harassment. The Equality Act renders an employer, for example, potentially liable if employees are harassed by people other than employees of the company, for example clients or suppliers. It should be noted, however, that liability will only arise when harassment has occurred on at least two previous occasions and the employer was aware that it had taken place but failed to take reasonable steps to prevent it from happening again.
75. Thus, if a delivery person regularly makes sexual references to a receptionist and a partner or member is aware of this and that the receptionist regards the references as unwanted and degrading, then failure by the partners or members to take steps to prevent the behaviour could leave them liable to an action for third-party harassment.
Pay secrecy
76. An employer is no longer entitled to insist that staff do not reveal how much they are being paid to each other so as to ascertain whether there is an inequality related to a protected characteristic. However, the employer can still take such steps to prevent discussions with those outside of the firm – e.g. competing businesses. Firms who have such a clause in their contract of employment should take steps to remove it.
Positive action
77. Businesses who wish to do so (it is a voluntary option under the legislation) may use positive action as a means of targeting the provision of services at a particular under-represented or disadvantaged group and, in certain circumstances, to allow those from disadvantaged a better opportunity to work for them. So far as clients are concerned firms can undertake research to ascertain whether there are groups who are disadvantaged and who would benefit from some form of positive action so that they can access the firm's services. In doing so, however, the firm must ensure that it does not discriminate against those who are not from that group.
78. Thus, for example, a firm could target a particular service at a disadvantaged group, charge a lower fee because they are known, for example, not to be high wage earners, or open at different times of the week to enable them to access the firm's services. All that is required is that you have undertaken some research into need and have a reasonable belief that the positive action is necessary.
79. With regard to staff, the matter becomes a little more complicated because, although the firm can encourage those from disadvantaged groups to apply for jobs or promotion within the firm, the person who is appointed to any particular role must still be the most appropriate person for the job, whether they are from that group or not.
Pre-employment health checks
80. You should note specifically that the Equality Act limits the circumstances in which you can ask health-related questions before you offer someone a job. The only occasions when it would be appropriate would be in relation to:
• deciding if there needs to be a reasonable adjustment for person during the selection process;
• deciding if the applicant can carry out a function that is essential to the job;
• monitoring diversity amongst job applicants;
• taking positive action to assist those with a disability;
• ensuring a candidate has a disability where the job genuinely requires it.
Once a person has been selected for a job you can carry out health checks in the normal way.
81. Finally, all firms are advised to take a look at their diversity policy and to make such changes to it as are necessary to reflect the new legislation. Do remember that if your policy is out of date you may not be able to persuade your regulator that you are taking steps to ensure that discrimination does not occur within your firm. In particular ensure that all of the references to legislation are updated where appropriate, that the new terminology is used within the body of the policy and that staff are trained and updated on the provisions of the Equality Act and how it affects your firm.
A Couple of Legal Applications
82. Aside from the gritty realities of employment practice, as an apercu I add a couple of (to me) interesting legal points already arising in practice as we endeavour to grapple with the effects of the Act. The first is eminently sensible; the second involuntary mayhem created by poor drafting...
The Presumption of Advancement
83. With equality being now all the rage, as the Equality Act was rushed through in the dying days of the last Labour government it turned its gimlet eye upon the 'presumption of advancement', a longstanding principle which arose during the craze for social justice of the 19th Century. This is the principle that a gift from a husband to his wife is presumed to be just that, a gift; however, if a wife makes a gift to her husband the presumption was that he holds the item (or bank account, or property) on trust for her.
84. The presumption that a husband intends to make gifts to his wife but not vice versa seems to most modern readers (save my wife) exorbitantly sexist. Sure enough then, this is swept away with the introduction of the Equality Act 2010 s.199. The 'presumption of advancement' is now abolished between spouses so a person receiving a gift from their spouse will be presumed to hold the gift on trust for their spouse, subject to evidence to the contrary. Documentary evidence, such as a simple deed executed by the parties following independent legal advice, is usually the best way of doing this.
Compromise Agreements
85. A flaw in the Act appears to make it impossible for an employer and an employee to settle all their differences through a compromise agreement. These are the agreements which are used in the vast majority of cases to confirm the resolution of employment disputes and to ensure the employee thereby agrees to withdraw and no longer to pursue claims against the employer.
86. The problem arises from Section 147(5), which provides that an independent adviser (required in order for a compromise agreement to be effective) cannot be someone who is a party to the contract or complaint, a person connected to such a person, or a person who is acting for either of these two.
87. This definition of 'independent adviser' excludes anyone who is acting for a party to the compromise agreement. Thus a solicitor who was instructed by the employee prior to the production of the final agreement for consideration will be precluded from acting any further.
88. The Government Equalities Office (GEO), the government department responsible for equality policy, has said that it believed that there was no problem with the law. This is directly contradicted by the Law Society, which recently published a press release articulating its concerns: "The Government Equalities Office has stated that 'the situation that existed prior to passage of the Act' remains unchanged and, by implication, that a solicitor who had advised a client in respect of an action would also be able to provide advice on a compromise agreement ... However, we have received advice from counsel which disagrees with this view."
"The advice indicates that a court or tribunal would construe section 147(5)(d) as meaning that a solicitor who was instructed by the employee prior to the production of the final contract for consideration, or who has acted in any way for the employee during the course of his complaint – even in a supporting role to the lead adviser perhaps as holiday cover – will be precluded from acting any further as an independent legal adviser in that compromise contract," the Society said.
"Advice from counsel also indicates that a solicitor to whom the client was referred solely for the purpose of advising on the agreement would not be able to provide such advice," it said. "The effect of this is that there is no way in which compromise agreements under the Equality Act can be made enforceable."
89. So what can be done to manage the problem? One option is to use ACAS (Advisory, Conciliation and Arbitration Service) and have a COT3 (an ACAS-brokered conciliation agreement) signed instead of a compromise agreement. Another is to make sure that the proposed settlement monies, or any significant part thereof, are not paid to the employee for a period of three months, following which, in most cases, employees will be out of time for bringing a discrimination claim. For obvious reasons, this is unlikely to find favour with disgruntled ex-employees. The other alternative is to await a clarificatory decision of the Employment Appeal Tribunal, but that may take many months.
Mark Simeon Jones
3 Dr Johnson's Buildings
18th January 2011