A Guide to the Equality Act 2010 and EHRC Employment Statutory Code of Practice

Code of Practice on Employment

This guidance note has been written to provide insight and a simple overview of the Equality Act 2010 and the Equality and Human Rights Commission (EHRC) Employment Statutory Code of Practice in order to promote best practice within your organisation. 

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The EHRC promotes equality and is working towards eliminating discrimination. The Commission is responsible for raising awareness around unlawful discrimination, whilst encouraging best practice within organisations and providing advice and guidance on the law. 

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What is the purpose of the ‘Equality Act 2010’?

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The Equality Act 2010 (the “Act”) covers discrimination of the Protected Characteristics. The act unifies and replaces legislation for discrimination in England, Scotland and Wales alongside making discrimination unlawful in circumstances not covered in prior legislation.

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The Code aims to assist employers and others to understand what their responsibilities are and how to avoid discrimination disputes in the workplace. It will allow all individuals to understand the law, their rights and how to enforce these rights if they have been a victim of discrimination in the workplace. 

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What are the ‘Protected Characteristics’?

Age

• The Act defines age with reference to a person’s age group. Where the Act refers to people sharing a protected characteristic this means people who are in the same age group e.g. a 25 year old man may be part of several age groups (under 50, between 20 and 30 or mid 20s’). 

Disability

• The Act states a person has a disability if they have a physical or mental impairment which has a long-term and substantial adverse effect on their ability to carry out day-to-day activities. Where the Act refers to disability it refers to people who share the same disability. 

Gender Reassignment

• The Act defines gender reassignment as ‘moving away from one’s birth sex to the preferred gender, rather than a medical process’. The reassignment of a person’s sex may have been proposed but not gone through, the Act does not require the proposal to be irrevocable. 

Marriage and Civil Partnership

• Marriage is the formal union of a man and woman in the UK recognised legally as a marriage. A civil partnership refers to a registered civil partnership under the Civil Partnership Act 2004 and includes those registered outside the UK.

Pregnancy and Maternity

• It is unlawful for an employer to subject a woman to unfavourable treatment during the protected period of pregnancy as defined by the Act.

Race

• Race includes colour, nationality and ethnic or national origins. A person has a protected characteristic if they fall within a particular racial group which may be made up of two or more distinct racial groups.

Religion or Belief

• Religion or belief includes any religion and any religious or philosophical belief and also the lack of any such religion or belief. 

Sex

• Sex is a protected characteristic and refers to males or females of any age. A comparator for the purposes of showing sex discrimination will be an individual of the opposite sex.

Sexual Orientation

• This includes a person’s Sexual Orientation towards:

• Individuals of the same sex (gay/lesbian)
• Individuals of the opposite sex (hetrosexual)
• Individuals of either sex (bisexual)

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What are the different types of ‘Discrimination’? 

Direct Discrimination

Is when a person treats another less favourably than they would treat others because of a protected characteristic. Generally Direct Discrimination is unlawful, it may however be lawful where:

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• The protected characteristic is age, and the less favourable treatment is permitted as a means to achieve a legitimate aim;
• The protected characteristic is disability, a disabled person is treated more favourably than a non-disabled person;
• The Act provides an exception which permits direct discrimination that would otherwise be unlawful.

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Examples of ‘less favourable’ treatment

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A female candidate is at an interview and mentions she has a same sex partner. She is the most qualified candidate yet the employer decides to offer the job to someone else. The employer is treating her less favourably than the successful candidate, who is a hetrosexual woman. If the less favourable treatment is because of the unsuccessful candidates sexual orientation, this would be considered direct discrimination. 

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During the interview process a job applicant advises his employer he has autism. The applicant is not successful and the employer offers the job to someone who doesn’t have a disability. If the less favourable treatment was because of his disability this would amount to direct discrimination. In this case it would be necessary to look at why the job was not offered to the unsuccessful candidate. 

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An up and coming tech firm with an all-female workforce decides not to recruit a male developer as they feel he may not fit in and will be unhappy. This is likely to amount to direct sex discrimination.

Indirect Discrimination 

Indirect discrimination applies to all the protected characteristics aside from pregnancy and maternity and may occur if an employer implements a provision, criterion or practice which puts workers who share a protected characteristic at a disadvantage. There are four requirements which must be met in order for indirect discrimination to occur:

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1. The employer applies the provision, criterion or practice equally to all in the group, including a worker with a protected characteristic;
2. The provision, criterion or practice puts, or may put people who share the worker’s protected characteristic at a disadvantage in comparison to those who do not have that protected characteristic;
3. The provision, criterion or practice puts, or may put the worker at a disadvantage; and
4. The employer is unable to show that the provision, criterion or practice is a proportional means of achieving a legitimate objective. 

What do we mean by ‘provision, criterion or practice’? 

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The words ‘provision, criterion or practice’ are not defined by the Act but may include any internal policies, rules, practices, procedures, arrangements, criteria, conditions, qualifications or provisions the worker and all other individuals may be subject to. It may also include one of decisions or future actions not yet implemented. 

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For example, introducing a policy prohibiting a kippah or headscarf at a future date may be indirectly discriminatory because of religion or belief as it puts individuals who wear a kippah or headscarf at a disadvantage. This policy may not be implemented immediately but may still amount to a provision, criterion or practice. The employer will need to show the provision, criterion or practice can be objectively justified. 

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Employer obligations and liabilities under the act

Employers have obligations towards both job applicants and employees during the course of employment. The Act defines employment as:

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“a) employment under a contract of employment, a contract of apprenticeship or a contract personally to do work;

(b) Crown employment;

(c) employment as a relevant member of the House of Commons staff; or

(d) employment as a relevant member of the House of Lords staff”. 

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The definition of employment in the Act is wider than other employment law provisions and covers a wider group of workers in comparison to the unfair dismissal provisions under the Employment Rights Act 1996. 

Obligations - applicants

Employers and individuals seeking to recruit employees (even if they are not employers at the time) have obligations not to discriminate, victimise or harass job applicants. It is important that employers do not discriminate, victimise or harass applicants in:

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• the arrangements they make when deciding who is offered employment (arrangements include policies, criteria and practices used during the recruitment process which includes the decision making process, it may also include advertising for the role, the application and interview process);
• the terms on which they offer employment (this may include pay, bonuses and other benefits); or
• by not offering employment to the applicant. 

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Obligations - employees

Employers and individuals seeking to recruit employees (even if they are not employers at the time) have obligations not to discriminate, victimise or harass employees. It is important that employers do not discriminate, victimise or harass employees:

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• with the terms of their employment (this may include pay, working hours, pensions, sickness, bonuses or maternity/paternity leave and pay);
• with access to opportunities for promotion, transfers or training, or the receipt of any other benefit;
• by dismissing the employee (for the purposes of dismissal an employee who is dismissed in breach of the Act does not need to complete the qualified period of employment/service to bring a claim to the Employment Tribunal); or
• subjecting them to any other detriment (detriment includes anything which puts the employee at a disadvantage or worse position).

Employers also have a duty to:

• Make reasonable adjustments
• Not to harass applicants or employees
• Prevent harassment of applicants and employees by third parties
• Ask a job applicant about their disability or health until the applicant has been offered a job unless:

• a reasonable adjustment is needed for the recruitment process;
• monitoring purposes
• implementing positive action measures
• occupational requirements
• national security 
• function intrinsic to the job 

Liabilities

Employers may be held liable for unlawful acts that are committed by employees during the course of their employment, whether or not they were aware of the acts being committed by the employees. 

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During “the course of employment” is defined widely to include acts committed in the workplace and circumstances outside the workplace including social functions and business trips. Employers will not be liable for the unlawful acts of the employees where it can be shown reasonable steps were taken to prevent the employee committing an unlawful act. 

Positive Action

Employer’s may take positive action measures to improve equality for individuals in the workplace who share a protected characteristic. It is important to distinguish between positive action and positive discrimination. 

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An action which is aimed to benefit a group of individuals with a protected characteristic and which does not involve less favourable treatment of another protected group is unlikely to be considered unlawful. It is also important to note that it is not unlawful for an employer to treat a disabled person more favourably than an individual who does not have a disability. 

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Positive action is optional and is not a mandatory requirement. It may help build good business practice and benefit the organisation as a whole, benefits may include:

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• A more diverse, talented and varied skill set of individuals;
• A more dynamic workforce; and
• A more diverse understanding of customers. 

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When considering what positive action an employer wishes to implement, factors to consider include:

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• What evidence is there of the disadvantage or need?
• What outcomes do you wish to achieve?
• What positive action measures can be taken to achieve the outcomes?
• Has an assessment of the proportionality of the proposed action been taken?
• What steps need to be taken to achieve the outcome?
• What measurable indicators will be used to progress towards the aims/outcomes?
• How will you consult the relevant groups of staff and members of the protected group for whom the aim/outcome is being established?
• Within what period of time do you wish to achieve these outcomes?

Pay and Benefits

Employers must not discriminate when setting the terms of employment in relation to pay, or awarding pay increases. Pay includes basic pay, non-discretionary bonuses, overtime pay, performance related benefits, severance pay, redundancy pay, pension schemes, benefits under the pension scheme, hours of work, company cars, sick pay and benefits such as travel allowances.

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Where employees work less than the full time hours specified for a role, employers need to pro-rata the part time hours worked proportionately. This will ensure that the employer does not put part time employees who share a protected characteristic at a disadvantage (this may amount to indirect discrimination). Employers may base pay structures in accordance with the bands as set out in the National Minimum Wage Regulations 1999.

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Enforcement

Employees who may have been affected by a breach of the Act may pursue a redress claim through the Employment Tribunal. Nothing in the Act prevents parties settling a claim or potential claim before it is concluded by the Employment Tribunal. ACAS offers a conciliation service for parties who are in a dispute, regardless of whether a claim has been made to an Employment Tribunal. 

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The Employment Tribunal may:

• Make a declaration as to the rights of the parties to the claim;
• Award the employee compensation for any loss suffered; 
• Make a recommendation that the employer takes specific steps to reduce the disadvantage the employee is facing; 
• Award interest on compensation; or
• Award costs. 

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Failure to comply with the Employment Tribunal may result in the increase of any compensation awarded to the employee or an order for the employer to pay compensation to the employee if this order was not made at the earlier hearing. 

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The Equality Act 2010 aims to offer individuals with stronger protections against discrimination, employers are provided with a stronger framework and clarity about their responsibilities and duties owed to their employees.

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How to become an equal opportunity employer

Equal opportunities upholds the idea that everyone in an organisation should have access to all of the organisation's facilities at all stages of an employment cycle, including pre-employment screenings. Each individual should:

• Have an equal chance to apply and be selected for roles (pre-employment)
• Have an equal chance to be trained and promoted into other roles during employment
• Have an equal chance to have their employment terminated fairly

The Equality Act has 9 specific protected characteristics:

1. Age
2. Sex
3. Race
4. Disability
5. Religious background
6. Sexual Orientation
7. Gender Reassignment
8. Pregnancy
9. Marital Status

If you discriminate against any of the protected characteristics you are in breach of the Equality Act 2010.

What does this mean for you?

You should allow your employee to:

• Have access to a fair working environment
• Receive a fair allocation of workload
• Be entitled to equal access to benefits and conditions 
• Be a part of a workforce which is free from unlawful discrimination, harassment or any form of bullying
• Be employed under a fair screening system with equal recruitment and promotion practices
• Have access to a fair process when dealing with work-related complaints and grievances. 

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The opinions on this page are for general information purposes only and do not constitute legal advice on which you should rely.