Equality Act 2010, 10 year anniversary – legislation basics

October 2020 marked 10 years since the Equality Act 2010. Here, our Senior Inclusion and Diversity Consultant, Kylie Thompson, reminds us of the key legislation covered by the Act.

If you are new to Inclusive Employers, welcome! Perhaps National Inclusion Week was your first step on your inclusion journey or you’d like a refresher on the basic legal points around inclusion and diversity. Read on for an overview.

What is the main legislation around inclusion and diversity?

The Equality Act 2010 is the UK’s primary legal framework for protecting individual rights and furthering inclusion and diversity. Combining 116 pieces of previous legislation into one act, the Equality Act 2010 makes it illegal for businesses and public services to treat people with protected characteristics unfairly.

What are the protected characteristics?

The legislation covers nine groups and makes it illegal to discriminate against someone with the following protected characteristics:

  • Age
  • Disability
  • Gender reassignment
  • Marriage and civil partnership
  • Pregnancy and maternity
  • Race
  • Religion or belief
  • Sex
  • Sexual orientation

What are the different types of discrimination?

Discrimination can be defined astreating someone less favourably because of a protected characteristic and applies to both verbal, written and physical action (e.g gestures and behaviour).

The different types of discrimination covered under the act are:

  • Direct, including by association or perception: treating someone less favourably because of a protected characteristic they have, are linked to, or are thought to have;
  • Indirect: where you have a rule, policy or practice that applies to everyone but would particularly disadvantage people with a protected characteristic. For example, asking all employees to work weekends would disadvantage those of certain religions;
  • Victimisation: treating someone less favourably because they have made or supported a discrimination complaint; 
  • Harassment: unwanted conduct which makes someone feel humiliated, intimidated or offended because of a protected characteristic.

Are there any exceptions?

Indirect disability discrimination is illegal unless the organisation or employer can show that the policy, rule or criteria is:

  1. Objectively justifiable – absolutely needed to perform the role
  2. Abiding to another law, e.g. national security 

For example if you are an all-girl school looking for a female worker – this would be objectively justifiable based on the requirements of the role, or if you are government agency that requires nationality for security purposes and checks – this would also be objectively justifiable.  If you are hiring for a construction role which involves working at heights, it is fine to specify this, as long as it is absolutely needed to perform the role, and you try to make reasonable adjustments where possible. 

What actions can I take to avoid legal issues?

As an employer you are responsible for people employed by you and people following your instruction (even if they not employed by you) in terms of discrimination complaints. 

Therefore, you must ensure that you have:

  • Taken steps to prevent workers acting unlawfully e.g. that you have discrimination policy or clause with corresponding disciplinary action for any breech and, or regular training to cover this;
  • Or, if under your instruction – that you can prove the action was outside what you asked.

Objectively justifiable

When you are establishing your criteria for hiring or promotion, also make sure that you are only asking for skills and experience that are absolutely needed to perform the role.

At interview, focus on questions around this criteria and avoid any other unrelated or irrelevant questions. This includes personal questions, especially around sickness, benefits and career breaks.

Questions on health and disability are particularly regulated. You can only ask about these in terms of making reasonable adjustments (for interview or hire), diversity reporting (for application or hire) guaranteed interview scheme (application), with complaints about health and disability inquiries escalated direct to the Equality and Human Rights Commission.

Reasonable adjustments

Failure to make reasonable adjustments specific to the disability characteristic, you have a responsibility to make sure that disabled people can access jobs, education and services as easily as non-disabled people. This may include providing accessibility adjustments, equipment and support facilities.

The public sector equality duty 

Lastly, as well as businesses, public authorities must be aware and actively consider how their actions, processes, and policies impact those who fall under protected characteristics. This is similar to preventing discrimination, but goes further, ensuring that all public sector decision-making is performed with protected characteristics in mind, usually using frameworks like an Equality Impact Assessment.

If you’d like any more information on the Equality Act, Discrimination, Inclusive Recruitment (including how to avoid legal risk) or the Equality Impact Assessment please reach out to [email protected] – we are here to help!