THE Equality Act 2010

The Equality Act 2010

The Equality Act 2010 (‘EA’) makes it unlawful to discriminate in the field of employment, education and the provision of goods and services.  This page focuses on discrimination in the field of employment.

The EA brought together once piecemeal legislation on discrimination dating back to the 1970’s. The main aim of the EA was to consolidate and introduce consistency across the different strands of discrimination. It protects, among others, employees, job applicants and former employees from unlawful discrimination.

The EA is accompanied by extensive Explanatory Notes which act as guide to the meaning of the act. The Equality and Human Rights Commission (‘EHRC’), the statutory body whose aim is to promote equality, has also produced a statutory Code of Practice on Employment (‘the Code’) to assist with interpreting the Act.

Discrimination in employment is unlawful when it based on particular characteristics and it is committed in manner that is expressly prohibited under the EA.

Prohibited Conduct

Discrimination based on a protected characteristic will be unlawful if it is committed in any of the following forms:

• Direct;

• Indirect;

• Harassment;

• Victimisation;

• Discrimination arising from disability; and

• Failure to comply with duty to make reasonable adjustments.

Brining a Discrimination claim

Who is protected?

The EA protects a range of individuals within the field of employment including, among others, employees and workers (present and former) and job applicants. The EA also protects a wider category of individuals who are self-employed, provided that their contract to perform work obliges them to perform the work personally.  Anyone who has protection has the right to present a claim to the tribunal if they consider there has been infringement of their rights.

Who is liable?

An employer will be primarily liable if it unlawfully discriminates against anyone whom it employs.  Employers can also be liable for discriminatory acts perpetrated by their employees or agents.  Where this happens, the employee can bring a claim against the perpetrator directly (e.g. the harassing employee in a s.26 EA claim will be individually liable) and against the employer who may be vicariously liable under s.109 EA which provides that anything done by an employee in the course of employment is treated as having been done by the employer regardless of whether the employee’s acts were done with the employees knowledge or approval. The employer has a defence to vicarious (also known as secondary liability) if it can show that it took all reasonable steps to prevent the employee from doing the discriminatory act (s.109(4) EA).

Employment tribunal procedure

The time limit for presenting a discrimination claim is 3 months (in addition to the mandatory ACAS early conciliation period) from the unlawful act of discrimination (s.123 EA). Tribunals have the discretion to extend the time limit in discrimination cases under the ‘just and equitable’ rule (s.123(1)(b) EA).

Evidence

The standard of proof in discrimination cases is whether on the balance of probabilities discrimination occurred. The burden of proving discrimination has two stages. The burden initially rests with the claimant to prove, on the balance of probabilities, facts from which a Tribunal could conclude, in the absence of an adequate explanation, that the respondent committed an act of unlawful discrimination.

If the claimant does prove such facts, the burden of proof will then shift to the respondent who must demonstrate that there is an adequate explanation for the apparent discrimination, i.e. disprove a primary finding of discrimination by showing that the treatment was in no sense whatsoever on unlawful grounds. If the claimant does not prove such facts the claim will fail.  If the respondent fails to discharge this burden the claim will succeed. 

Discrimination claims are notoriously difficult to prove, as it is often subtle, covert, subconscious and in some cases unintentional. So if you need advice how to handle any work complaint like a grievance please get in touch. There is very rarely direct or overt evidence. The challenge for claimants in particular is to find evidence that would allow a tribunal to make an inference of discrimination from the available evidence.

Examples of evidence

1. Witnesses

2. Employer’s explanation

3. Other acts of discrimination

4. Comparisons

5. Statistics

6. Questionnaires

7. Previous complaints

8. Equal Opportunities Policy

The EHRC Employment Statutory Code of Practice

The EHRC is committed to eradicating discrimination and advancing equality as part of its mission. It is the responsibility of the Commission to educate people about illegal forms of discrimination, as well as to encourage groups to engage in effective practises and to provide advice and direction pertaining to legal matters.

The EHRC Employment Statutory Code of Practice, which became effective on April 6, 2011, has been updated. On March 31, 2014, a supplemental document to the Code was made public. On September 4, 2015, the Code underwent its most recent revision. When making decisions on claims brought under the Equality Act of 2010, employment tribunals are required to take into account the Code of Practice wherever it is applicable.

The law does not mandate that a company have a policy on equal opportunity. On the other hand, the EHRC Employment Statutory Code of Practise ("EHRC Code") suggests that organisations have policies in place. In chapter 18 of the EHRC Code, direction is given about what components of an equal opportunities policy should be included and how such a policy should be drafted. The EHRC Code does not in and of itself establish any legal responsibilities on the employer; nonetheless, it is taken into consideration by a Tribunal when considering whether or not discrimination has occurred when an employee brings a claim against their company. When there has been a violation of the EHRC Code, it may have the effect of shifting the burden of evidence to the employer in a discrimination claim, requiring them to produce an appropriate explanation for any unfavourable treatment that is claimed to be discriminatory. This is only the case when the violation is relevant.

Setting basic standards of conduct and, as a result, lowering the risk of workers bringing legal action against their employer may be facilitated by the implementation of a policy on equal opportunities. It is easier for an employer to raise the ‘reasonable steps’ argument under section 109(4) of the Equality Act 2010 if they have a policy in place, provided that the policy is implemented with publicity and suitable training, and if the appropriate action is taken in the case of a violation. This implies that an employee is exempt from responsibility for discriminatory conduct committed by other workers provided the employer can demonstrate that they took "all reasonable steps" to prevent illegal acts from occurring on the premises.