Introduction 3
Summary of the Equality Act 2010 3
The Purpose of the Equality Act 2010 4
Protected Characteristics in the Equality Act, 2010 4
Two Forms of Discriminations Discouraged by the Act 5
Behaviour Considered unlawful in the Act 5
Employment and Working Conditions Exempt from the Act 6
Changes made from Previous Discrimination Legislation 7
Potential Problems with the Equality Act of 2010 for Employers and Employees 8
Recommendations on how Organisations can ensure Compliance with the Equality Act 11
References 13
Employment Relations and Law – Equality Act 2010
Introduction
With the rise in globalisation pressures and the need for businesses to expand operational activities, it has become imperative that innovative strategies and productive policies as well as procedures should be implemented throughout the workplace . One of the important challenges facing businesses today is the strict adherence or compliance with employment laws and legislations.
Though there were many discrimination laws previously in the Great Britain to protect rights and interests of all employees and job applicants yet there was a greater need for the introduction and implementation of new employment legislation that could combine features of all previously implemented laws . In this regard, the Equality Act of 2010 was introduced together-with nine distinct protected characteristics that define unlawful behaviour on part of employers while offering jobs and recruiting any individual .
With such a concept in mind, this research paper is written to not only present the summary of the Equality Act of 2010 but also highlight the changes that are made to previous legislations to make up the new Act in 2010. Apart from this, the potential problems embedded in the introduction and implementation of the Equality Act of 2010 is also discussed with succinct detail. This is followed by recommendations concerning the manner in which employers could confirm or ensure strict compliance with the Equality Act of 2010.
Summary of the Equality Act 2010
The primary purpose of this Act is to form a collective employment law against anti-discrimination policies all across the United Kingdom . In October 2010, the Equality Act replaced previous legislation for ensuring persistence in employers’ and employees’ obligations that make their workplace comply with law and contain fair working conditions . There are nine legislations that were combined to form this law and are outlined as follows:
The Equal Pay Act 1970
The Sex Discrimination Act 1975
The Race Relations Act 1976
The Disability Discrimination Act 1995
The Employment Equality (Religion or Belief) Regulations 2003
The Employment Equality (Sexual Orientation) Regulations 2003
The Employment Equality (Age) Regulations 2006
The Equality Act 2006, Part 2
The Equality Act (Sexual Orientation) Regulations 2007
The Purpose of the Equality Act 2010
The primary purpose of this Act is to combine several other discriminatory laws so that it is easier to employ. It establishes certain personal characteristics that the law protects and the discrimination against such characteristics is considered unlawful. This Act was passed in October 2010 to make Britain a fairer society by harmonising protection and simplifying legislation to help businesses perform better and improve public services.
Protected Characteristics in the Equality Act, 2010
The Equality Act of 2010 was created with a core purpose to harmonise, strengthen and simplify the current British legislation while replacing the old law with new discrimination law aimed at protecting individuals from being treated unfairly in organisation and promote a more equal and fair society. Under this Act of 2010, the discriminatory attitude due to protected characteristics are discouraged where an individual’s age, gender, disability, civil partnership and marriage, race, maternity and pregnancy, religious beliefs as well as sexual orientations.
Two Forms of Discriminations Discouraged by the Act
The Equality Act of 2010 protects individuals against direct and indirect discrimination . The former case exists when a person is treated less favourably compared to others due to any protected characteristic outlined in the previous paragraph. For instance, it is one form of discriminatory attitude if an organisation refuses to employ a certain person due to age restriction unless this action is backed by a proper justification or reason . The latter, indirect discrimination is discouraged by this Act when a person’s rights are violated or an individual is exposed to certain disadvantages originating from outlined protected characteristics.
As an example, the Equality Act of 2010 states that pregnant women should be specially protected when gender discrimination prevails throughout the workplace. In the same manner, to facilitate disabled employees and workers, the Equality Act maintains that it is the core duty of service providers and employers to make reasonable adjustments to existing working environment for overcoming obstacles and problems being faced by disabled people .
Behaviour Considered unlawful in the Act
Under the Equality Act of 2010, it is prohibited for people (particularly employers) to discriminate, victimise or harass any other individual due to the protected characteristics outlined previously in this section. The law requires that any person having one of these protected characteristics or has an association with any individual with these characteristics; it is unlawful to discriminate against these people. Such behaviour is discouraged even if any person is perceived to have any of the protected characteristics outlined before or is personally related to an individual with these protected features under the Equality Act of 2010.
As per this law, treating one person more favourably than any other individual, due to protected characteristic, is considered direct discrimination . Apart from this, if any policy, rule or business process impact any individual with a protected characteristic compared to others is considered an indirect discrimination. When any person’s dignity or rights are compromised because of degrading, hostile, offensive or humiliating environment is considered harassment . Any person who takes corrective action through whistle blowing against any wrongdoing as laid down under the law or supports any individual doing so, violating such person’s rights is known as victimisation in the Equality Act, 2010.
Employment and Working Conditions Exempt from the Act
There are certain professions that are exempt from being covered under the Equality Act of 2010. Ministers of religion, rabbis, monks, nuns, and priests are not covered under this Act. In the same manner, models and actors working in the fashion industries, television and movies are exempt from restrictions laid down under the Equality Act of 2010 as they need to have diversity in their roles. Employment in national security agencies, embassies, higher commissions and other diplomatic offices are not covered under the law provisioned under the Equality Act, 2010.
All those training programs that provide special employment and are aimed to address job needs of young adults, ex-offenders, ethnic minorities, people with learning or physical disabilities as well as people who have been unemployed for a long time remain uncovered by the Equality Act of 2010. All those employment endeavours which require cultural sensitivity (such as any documentary or live interviews) as well as those political parties run by women are still exempt from restrictions of the Equality Act of 2010.
Changes made from Previous Discrimination Legislation
In the new employment law, there are certain changes made to the individual definitions of the nature of discrimination in each case. For the first time, the Equality Act of 2010 combines those various characteristics that are already protected from unlawful discriminatory attitude with the introduction of a concept concerning protected characteristics. These protected characteristics are nine in number and have already been outlined earlier in this report .
Apart from this major change, the new Act has introduced the new definition of these protected characteristics. Accordingly, the definition of race is now stated to be non-exhaustive which includes (but is not limited to) nationality, colour, or ethnic origin. Furthermore, previous discrimination laws required medical supervision in case of gender reassignment. Such a requirement of medical supervision is no longer required by the Equality Act of 2010 if an individual has undergone, is undergoing or is expected to undergo a medical treatment for gender reassignment for modifying sexual physiology.
Compared to the previous law, the Equality Act of 2010 provides an enhanced definition of discrimination and its forms based on direct, indirect and perceived discrimination. Previously, discrimination was only limited to fair and unfair treatment of an individual. With the introduction of this new employment protection law, if an employer perceives someone to have a protected characteristic or is associated with any other person with protected characteristic, such an employer cannot discriminate against the applicant or employee on the basis of an indirect or perceived discrimination .
Although this form of discrimination has already been declared unlawful in old legislations yet the new Act creates more awareness of an individual’s rights by clearly specifying every concept. The Equality Act of 2010 clearly states the definition of indirect discrimination which is applicable to all nine protected characteristics, except maternity and pregnancy. In old employment and discrimination laws, there was no protection against indirect discrimination (though it was considered unlawful) on the basis of gender reassignment or disability.
Under the old laws, individual claims were made against the person committing the discrimination. However, the new law of 2010 requires that claims must be lodged against employers due to their failure to implement and enforce appropriate policies. Overall, the new employment law, Equality Act of 2010, has introduced new forms of discriminatory attitude on the basis of disability that has replaced disability-related discrimination under the old law. The new Act has also introduced the concept of indirect disability discrimination as well as restrictions on pre-employment health enquiries.
It was only the Sex Discrimination Act (SDA) that held employers responsible for harassment by third parties (contractors, customers and suppliers etc) against any employee under the old law. This liability is extended under the Equality Act of 2010 to each and every protected characteristic not just the marriage, maternity, pregnancy and civil partnership matters.
Potential Problems with the Equality Act of 2010 for Employers and Employees
This section aims to identify those potential problems in the Equality Act of 2010 that prove to raise issues or difficulties for both the employers and employees. Therefore, to serve the purpose of this section, potential problems in the Act as identified by critiques of this law are highlighted. Most of the criticism on the Equality Act of 2010 stems from the fact that this Act poses a problem for employers that it introduces little modifications to the old law though it combines previous legislations. Based on this criticism, it is argued that there is a problem in the Equality Act it does little to protect employees. The definitions of unlawful behaviour are still the same while the only exception is the categorisation on the basis of protected characteristics. Similarly, this law seems problematic for both the employers and employees no action plan for implementation of employee protection activities is highlighted by the Equality Act of 2010.
For employers, the Equality Act of 2010 poses serious problems when it comes to recruitment and selection. This Act obliges employers to promote or recruit every person who is either physically disabled, belongs to disadvantaged group or is under-represented in minorities even when such an employer has an extensive choice to select from other qualifying and perfect candidates (job applicants).
Another problem for employers exposed by the Equality Act of 2010 is that the criterion to consider all job applicants as “qualified” is not clearly determined. Considering the other applicants with protected characteristics as qualified as other candidates mixes up the concept and expose employers to potential problems. This is because while recruiting and selecting any applicant, an employer has liberty to consider formal academic qualifications, professional experience, competence and overall ability of every job applicant.
According to this, any candidate with extensive experience but with little academic qualification should be considered as “qualified” as the one who has extensive formal education but little experience. Due to this, the Equality Act of 2010 is a problem for employers since it provides them with little flexibility in recruitment. There is a risk for employers that any unsuccessful candidate (job applicant) may claim a direct discrimination against the employer.
Another problem in the Equality Act of 2010 for employers is that they are prohibited by this new law to ask health related questions to job applicants before calling these candidates for a job interview or offering them a job when a vacancy arises. This is because the new law prevents employers from screening out the disabled candidates before they are even given a chance to prove their skilfulness and expertise for the concerned vacancy.
The Equality Act of 2010 protects employees and job applicants but poses problems for employers at the same time. It gives disabled people an equal opportunity just as provided to people with no protected characteristics. The reason for such a protection to job applicants and problem for employers is that disability related questionnaires prevent these physically disabled individuals to apply for any job at the first place.
Employers find it problematic to implement their obligations as laid down by the Equality Act of 2010 because all those people who either possess protected characteristic or look after anyone with protected characteristic find it convenient to win unfair dismissal cases. Employers fear from the fact that unsuccessful candidates would purposefully claim their dismissal through the Equality Act of 2010. This way, it is perceived that this new Act is a problem for not only the employers but employment tribunals as well since the Equality Act of 2010 would result in number of claims. Critiques argue that such claims would surely raise the burden of red tape on employers while they struggle to recover from the recession.
In all, the problem with this new employment Act is that staff members or employees of any organisation could easily claims against their employers for direct, indirect and perceived discrimination due to disability which is harmful for the corporate image of the employer. Employees are no longer required or obliged by the Equality Act of 2010 to prove they were discriminated and treated less favourably compared to non-disabled colleagues.
As an example, the law provides nursing mothers with a relaxation or complete flexibility to breastfeed their babies publicly. At the same time, the Equality Act of 2010 poses serious problems for employers or managers as they cannot even ask or advise those nursing mothers, due to a protected characteristic, to move somewhere in private to breastfeed their newborn in public place. At the same place, the Equality Act of 2010 also obliges colleges and universities to refrain from disqualifying pregnant teenage girls from taking their part in education due to a protected characteristic of pregnancy.
Recommendations on how Organisations can ensure Compliance with the Equality Act
For employers to ensure strict compliance with the law laid down by the Equality Act of 2010, it is necessary for them to implement recommendations made by employment tribunals. As far as the efficiency of previous laws is concerned, they could only make policy recommendations following a discrimination claim of any complainant. It is the Equality Act of 2010 that has strengthened the enforcement powers of these tribunals to make recommendation and implement those policy measures applicable to a wider workforce.
Apart from this, it is equally recommended for employers that they must implement an equality policy all over the workforce for ensuring strict adherence or compliance with the Equality Act of 2010. Setting up a panel to review grievances is another recommended strategy for employers to implement the Equality Act of 2010. To avoid any lawsuits and tribunal recommendations, it is recommended to all employers to avoid discrimination claims at the first place for complying strictly with the Equality Act of 2010. To do so, employers should implement comprehensive equal opportunity policy, disciplinary action plan, grievance and harassment prevention procedures in place. Furthermore, employers should ensure objective and fair recruitment criteria for employee promotions.
At the same time, it is recommended that employers should encourage all people with certain protected characteristic to increase their participation in the job market and apply for available vacancies to be a part of the existing workforce. This way, employers would not only be able to comply strictly with the Equality Act of 2010 but could also their corporate image in the job market. It is equally recommended that employers should meet the specific needs of the disabled or under-represented job applicants and employees.
In order to comply with the criterion established in the Equality Act of 2010, it is recommended for employers to foster healthy and good relationships among those who possess any of the nine protected characteristics and those personnel who do not share them. Reviewing policies and procedures of recruitment to identify areas of risk is also recommended to every employer where the implementation of single equality strategy is of prime importance for complying with the Equality Act of 2010.
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