The much heralded/maligned new act which came into force on the 1st October sets out to bring together all existing discrimination law into one pot with some additional legislation added in for good measure. It aims to provide a simpler, more consistent and more effective legal framework for preventing discrimination.

All existing discrimination legislation will be replaced by act, including the Disability Discrimination Act 1995, and, while many principles will remain the same, there are important changes to a number of key areas. This means that employers will need to look at their current policies and procedures to make sure they comply with the new legislation.

Much of the media attention has focused on controversial areas such as gender pay reporting. However, the Act’s disability discrimination provisions are likely to have much more impact on day-to-day working life.

1/ Discrimination by association

The new definition of direct discrimination is wide enough to cover discrimination by association. So, for example, if an employee was refused a job because he or she had a disabled child, this would be direct discrimination. The employer’s treatment of the claimant would be “because of” the protected characteristic of disability, albeit the child’s rather than the claimant’s.

2/ Discrimination arising from a disability

The Act introduces a new form of disability discrimination – discrimination arising from a disability. This simply requires that the claimant has been treated “unfavourably because of something arising in consequence” of his or her disability. For this type of discrimination to occur, the employer has to know, or reasonably be expected to know, that the employee has the disability in question.

The Government Equalities Office guidance gives the example of a disabled employee who, because of his or her disability, has to take more time off than other employees. If the employer treats the employee less favourably because of this, this will be unfavourable treatment because of something – the absence – arising in consequence of the employee’s disability.

3/ Tribunals allowed to use common Sense

At present, to receive protection from disability discrimination, individuals must show that they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. An impairment is taken as having such an effect only if it affects one of eight capacities:

  1. mobility;
  2. manual dexterity;
  3. physical coordination;
  4. continence;
  5. ability to lift, carry or otherwise move everyday objects;
  6. speech, hearing or eyesight;
  7. memory or ability to concentrate, learn or understand;
  8. and perception of the risk of physical danger.

This list of capacities is removed under the Equality Act, leaving tribunals to make a common-sense decision about whether or not a particular impairment has a substantial effect on day-to-day activities.

4/ Recruitment

The Act makes it unlawful for an employer (or any recruitment agency or consultant) to “ask about the health” of a job applicant before offering work to, or shortlisting, the applicant. If the employer asks an unlawful question about health during the recruitment process, and the applicant does not get the job, in any subsequent disability discrimination claim the burden of proof will be on the employer to show that there was no discrimination.

Both written and oral questions are outlawed by the provision, so those conducting job interviews will have to be careful to avoid the subject of health or fitness. And the provision is not limited to questions directed at the job applicant. A request for a reference sent before a job offer is made must also avoid asking questions that contravene the provision.

5/ Third Party Harassment

Employers may now be liable if an employee suffers harassment from a third-party, such as a customer or client, that is related to a protected characteristic such as their sex, race, sexuality etc.

Future Changes.

There are a number of additional clauses to the act which do not come into force straight away but may come into effect over the coming months. These include:

Dual Discrimination claims – . where an individual who believes that he or she has been treated less favourably because of a combination of two protected characteristics can bring a combined claim. This is expected to come into force next year

Gender Pay Reporting – The Equality Act contains a number of provisions designed to address the stubborn gender pay gap such as gender pay audits. This is likely to affect companies with 250 employees or more. It is also unclear whether the new government will implement it as the conservatives fought against it while the act was progressing through parliament

Get in touch if you would like us to check your policies are up to date for the new legislation or to discuss how it may affect your business.

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