The Equality Act – what’s coming into force and when

It is still not completely clear exactly when and, in some cases, if every aspect of the Equality Act 2010 will come into force. But most employers will know by now that the first wave of implementation takes place next month.

1 October 2010
The key provisions coming into force on this date are:

• protected characteristics – the grounds on which employees can be discriminated against;
• the provisions that consolidate discrimination under each of its categories – direct discrimination, indirect discrimination, harassment and victimisation;
• the parts of the act that prohibit employers from asking pre-employment health questions, except in limited circumstances; and
• the provisions that restate and revise equal pay law.

April 2011
Likely to come into force next April are:

• public-sector equality duty – the obligation on public-sector employers to eliminate discrimination and promote equality; and
• dual discrimination provisions – the ability for employees to bring discrimination claims based on a combination of two protected characteristics.

Positive action
These provisions permit employers to select a prospective candidate for recruitment or promotion on the basis of a protected characteristic. The date for implementing positive action has yet to be confirmed: it may not come into force at all. In the lead-up to the general election, the Conservatives criticised these provisions in the legislation.

Pay audits
It also remains to be seen what will happen to the provisions on gender pay reporting – that is, employers’ reporting on the disparity between what men and women in their workforce earn. When the act was drawn up, it was intended to apply to employers with 250 employees or more, but was not going to be introduced until 2013 at the earliest. Prior to the election the Liberal Democrats wanted to lower the threshold to include employers with more than 100 employees, while the Conservatives wanted to narrow the parameters. They were in favour of requiring employers to carry out pay audits only if they lost an equal pay claim in an employment tribunal. It remains to be seen what will happen on this.

Guidance
Although there is still some confusion surrounding implementation dates, there is now a wealth of information available to help employers prepare for the changes.

The Acas guide, The Equality Act – what's new for employers?, provides a good overview. It has a table listing the protected characteristics and what has changed in relation to them. Annex 1 outlines types of discrimination; Annex 2 details the changes introduced and gives practical examples of how these might apply.

EHRC
Guidance from the Equality and Human Rights Commission (EHRC) is more weighty, and navigation around the commission’s website is cumbersome. A good starting point in each of the eight sections is to review the core guidance summarising key issues. It is repetitive, as each section lists the protected characteristics and the types of discrimination involved, but it does help reinforce the act’s main principles.

Each core guidance section has sub-divisions and provides a useful means of delving into a specific topic. The section on recruitment, for example, summarises the limited scope for employers to ask pre-employment health questions and explains the issues that might arise, with clear examples.

Avoiding discrimination
The EHRC guidance has useful tips on dealing with specific situations where discrimination in the workplace might arise. Particularly valuable are the sections called "Avoiding and dealing with harassment" located in the ‘Managing workers’ part of the guidance. This provides an overview of good practice. "Avoiding unlawful discrimination when making redundancy decisions" in the ‘Dismissal’ section is a reminder of how the redundancy process works, and identifies some of the ways in which discrimination can arise during selection and decision-making in redundancy.

Codes of practice
There are three codes of practice on the EHRC website. “Equal pay” is published in its final form, although it will not apply until 1 October. There are two further draft codes: “Employment” and “Services, public functions and associations”. Consultation on the two draft codes is ongoing, and they are due to be published in their final form in March 2011.

The codes should be read in conjunction with the Equality Act and employers are expected to comply with their provisions. Employment tribunals can take into account any provisions of the codes they think relevant to a claim and can draw an adverse inference from an employer’s failure to comply with them. Organisations should familiarise themselves with the codes once they are in final form.

Source: Jan Wheeler, People Management