Time to act

After months of speculation, the Government has confirmed which provisions of the historic Equality Act 2010 will come into force this October. Katy Meves provides an update of what will – and what will not – be introduced.

The Equality Act 2010 received Royal Assent in the dying days of the Labour government, and following the General Election there was uncertainty about whether the new coalition government would stick to the previously announced implementation timetable and how differences of approach set out in the manifestos of the Liberal Democrats and Conservative parties would be resolved.

The Government Equalities Office (GEO) has now confirmed which provisions will come into force this October and which are subject to further consideration by the Government.

From October 2010

The main aim of the Act is to consolidate and harmonise existing discrimination legislation that has developed piecemeal over the last 40 years. The Act introduces a consistent approach to most of the concepts which apply to the different equality ‘strands’, and which the Act calls ‘protected characteristics’.

There are no new protected characteristics for the purposes of the Act, but some of the definitions have been amended slightly. The protected characteristics are:

• age
• disability
• gender reassignment
• marriage and civil partnership
• pregnancy and maternity
• race
• religion and belief (or lack of religion or belief)
• sex
• sexual orientation

The Act sets out the basic framework of protection against direct and indirect discrimination, harassment, victimisation and disability discrimination, which is referred to as ‘prohibited conduct’. This will all be unlawful from October.

Employers need to be particularly aware of the following provisions of the Act coming into force on 1 October 2010:

• the definition of direct discrimination will be amended so that people will be protected where they are discriminated against because they are perceived to have, or are associated with someone who has, a protected characteristic. This will give new protection for people like carers
• the European definition of indirect discrimination will apply to all protected characteristics. Currently there are some slight differences across the different pieces of legislation
• employees’ protection from third party harassment will be extended to all protected characteristics (currently it only applies to cases concerning sex)
• the definition of victimisation is changing so that claimants will not need to compare their treatment with anyone else but will only need to show that they have suffered a detriment
• the definition of ‘disability’ will change so that or the first time protection from indirect discrimination will be extended to disability
• a new concept of ‘discrimination arising from disability’ will be introduced, to replace protection under previous legislation lost as a result of the judgment in the Malcolm case
• the definition of ‘gender reassignment’ will change; there will no longer be a requirement for a claimant to be under medical supervision in order to be protected
• employers will be restricted from asking job applicants questions about disability or health (subject to certain exceptions)
• pay secrecy clauses will no longer be enforceable where employees disclose information in order to establish if there is a difference in pay due to gender
• hypothetical comparators will be allowed in limited circumstances in equal pay cases
• a general provision allowing voluntary positive action in limited situations
• employment tribunals will gain new powers to make recommendations which benefit the wider workforce in discrimination cases (currently they can only do so in respect of the claimant)

Expected from April 2011

The Government is currently consulting on the new equality duty, which will apply to certain public bodies listed in the Act.

This will see the current public sector duties relating to gender, race and disability combined and expanded into a ‘super duty’ encompassing age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

The new duty will require public bodies to consider the following matters when carrying out their functions:

• eliminating prohibited conduct under the Act
• advancing equality of opportunity between people who share a protected characteristic and those who do not
• fostering good relations between people who shore a protected characteristic and those who do not

This will not come into force in October, but is expected to be introduced in April 2011.

Implementation date uncertain

The Government has said it is currently considering how best to implement the following provisions, which will not come into force in October 2010.

There has however been speculation that some of these provisions may not come into force at all:

• the socio-economic duty on public authorities
• dual discrimination (i.e. direct discrimination claims based on a combination of two protected characteristics)
• disclosure by employers of information about the gender pay gap in their organisation
• allowing voluntary positive action in recruitment and promotion where two candidates are as qualified as each other
• the prohibition on age discrimination in the provision of services and public functions

Further information

The Equality and Human Rights Commission is producing the statutory Codes of Practice under the Act as well as making detailed guidance available on its web site. The GEO has produced its own guide to the Act. Further information on the public sector equality duty can be found in the consultation document below.

Equality Act Codes of Practice

Equality Act 2010: What do I need to know?

Public sector Equality Duty

Katy Meves is an associate at Shoosmiths (www.shoosmiths.co.uk). She can be contacted on 03700 86 6971 or via This email address is being protected from spambots. You need JavaScript enabled to view it..