Dual discrimination

Under the old regulations, people falling into more than one ‘disadvantaged group’, for example, a woman who is also Asian, experienced a whole raft of prejudice. An employment tribunal had to consider each ground of discrimination separately (in this case, a race claim and sex claim) and could not determine that someone is being discriminated against on the combined ground of being an "Asian woman".

The new regulations permit dual discrimination claims but only on the grounds of two protected characteristics. A claimant may not bring a claim on the grounds of being a "young Asian woman" as this combines three characteristics. Extrapolating this out, the claimant could potentially bring claims on six different grounds (sex only, race only, age only, sex and race, sex and age, race and age).

Positive discrimination

Under old laws, employers could use positive discrimination to target under-represented groups during recruitment, such as advertising vacancies in under-represented communities. However, they weren’t allowed to recruit someone purely because of their protected characteristic.

The new Act allows employers to take proportionate measures to recruit someone from an under-represented group, provided they are equally qualified.

However, employers will need to be cautious about relying on this provision as any positive discrimination could result in claims from unsuccessful applicants who may argue that they are more qualified than the successful applicant and the employer therefore had no right positively to discriminate (see: How To Structure Interviews). In addition, because employers can only positively discriminate where there is no policy of doing this (the rationale being to discourage positive discrimination simply in order to satisfy quotas) the use of this right by employers is to be limited.

Pre-employment health questions

Asking a candidate about their health prior to a job offer was thought to be one of the main reasons why disabled job applicants often failed to reach the interview stage. Employers were allowed to ask any questions of prospective employees, provided that such questions (or questionnaires) do not constitute discrimination and are for a valid purpose.
Since 2010, employers are no longer allowed to ask pre-employment health questions unless:

  • The employer has already offered the role to the employee, which may be a conditional offer (eg subject to satisfactory health checks).
  • Where one of the limited exceptions in the Act is met, for example, pre-employment questions are allowed where they are necessary to establish whether the applicant will be able to "carry out a function that is intrinsic to the work concerned". A care worker, might need to prove that they can lift heavy loads, for example, as it could be an intrinsic part of the job. It is unclear how such questions may be phrased to qualify as acceptable and the distinction between acceptable and unacceptable questions is likely to develop through case law. What is clear is that such questions must not be used to satisfy an employer's curiosity.
  • If the employer does not offer the employee the role as a result of their health checks or any questions, the employer may be subject to challenge by an employee on the grounds that any refusal of employment is discriminatory.

Pay gagging clauses

The Equal Pay Act was introduced in 1970 to eliminate sex discrimination but there is still a clear pay disparity between men and women. Many employers used to include pay secrecy clauses in their contracts to prohibit employees from discussing their pay. The rationale for the new provisions on pay secrecy is the belief that such clauses perpetuate the gender pay gap.

Under the Equalities Act 2010, pay secrecy clauses will be unenforceable against an employee who discusses pay for the purposes of ascertaining whether they are being discriminated against. For example, a woman asking a male colleague in the same role what he earns to find out if she is being paid less. Two male colleagues will not be able to discuss their pay because pay secrecy clauses will remain enforceable provided there are no discrimination issues.

The reality is that many employers continue to include pay gagging clauses in contracts as a deterrent measure and employees will not be compelled to disclose their pay details.

An employer also continues to have a right to take action against an employee who discloses the amount they are paid to a competitor in breach of a pay secrecy clause in their contract.

Gender pay gap reporting

There used to be no requirement for an employer to disclose to the public the amount its staff are paid. The Act creates an obligation on private sector employers with 250 or more staff to publish information about the differences in pay between male and female employees. Public sector bodies with 150 staff or more will be required to publish their gender pay gaps from next year.

Under last UK labour administration, employers were encouraged to disclose this information on a voluntary basis and only to bring the compulsory obligations into force from April 2013 (at the earliest) if sufficient progress on pay reporting had not been made. Whether these requirements come into force at all under the Coalition Government remains to be seen.

The Conservatives made it clear in the run-up to the election that they opposed the provisions, stating that their approach would be to require employers to publish pay details only if the employer has lost an equal pay claim. Given that such an amendment would require further Parliamentary approval, it is more likely that the provision will not be brought into force.

Associative and perceptive discrimination

Under the new Act, all forms of direct discrimination based on association with someone who has a protected characteristic and perception related to a protected characteristic are prohibited. This prohibits discrimination, for example, against an individual because their wife is particularly young or because it is perceived that someone has a disability (even if they don’t).

There will continue, however, to be some discrepancies between different forms of discrimination because, for example, civil partnerships are excluded from this provision.