Equality Act 2010

On 1 October 2010, the Equality Act 2010 came into force. It replaces the existing anti-discrimination laws in England and Wales with a single act and in the process, it simplifies the law, removes inconsistencies and introduces new ways to help prevent discrimination and inequality in our society.

This article will deal with "What's New?" and is aimed at businesses which deal with members of the public in selling goods and/or services.

A very important provision of the Act is that protection against discrimination also applies where someone is unfairly treated because they were wrongly perceived to have a particular "protected characteristic", or because that person associates with someone who has the "protected characteristic".

So what are the "protected characteristics"? These are disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

It is therefore extremely important that you should treat everyone you come across fairly, regardless of any of the protected characteristics and especially importantly, you should not make assumptions about the characteristics of individuals. For example you should not assume somebody who is of an Oriental appearance would be a non-Christian, or somebody who is of a Muslim appearance holds absolute beliefs about the Koran, when deciding how you treat that person.

The Equality Act also specifically clarified that it is unlawful to discriminate against a woman because she is breastfeeding.

Furthermore, private members' clubs with 25 or more members are subject to the provisions of the Equality Act, and they must not discriminate against members, potential members, or guests on any of the "protected characteristics".

A large section of the act is devoted to disability discrimination. It introduces a new form of discrimination, known as "discrimination arising from disability". For example, a patron of a restaurant cannot be asked to leave because both his legs were amputated and the restaurant owner is worried that his appearance (arising from his disability) may distress other patrons. This would be direct disability discrimination.

Indirect disability discrimination can occur if a business only offers appointments by phone. This makes it more difficult for deaf people to make appointments and it may be indirect discrimination unless the policy can be objectively justified as being a proportionate means of achieving a legitimate aim. The bottom line is that you need to be fair and reasonable including showing that you have looked into less discriminatory alternatives.

A good illustration of how direct disability discrimination can happen through association with someone who has the "protected characteristics" is if you go to a bar with a disabled friend that you are both turned away by the doorman because the bar does not wish to have disabled customers. The doorman AND the bar will be guilty of direct disability discrimination against your disabled friend AND against you because of your association with your disabled friend.

To take the example further to include "direct discrimination by perception", let's assume you were refused entry to a bar because you carry yourself in a manner perceived by the doorman as gay. That would be direct discrimination because of sexual orientation. If you were in fact gay, you're still able to claim direct discrimination. Of course it may be difficult to prove "perception" in many situations, but it is important to guard against making assumptions about other people.

The other important aspect introduced by the Act concerns "harassment". The Act defines two types of harassment:

1. Unwanted conduct related to a "protected characteristic" (eg race)
2. Unwanted conduct that is sexual in nature.

AND the conduct must have the purpose or effect of violating a person's dignity or creating and intimidating, hostile, degrading, humiliating or offensive environment for them.

It is important to note that harassment is unlawful whether it is intended or not, and it is the "victim's perception of the unwanted conduct which will be considered by the court.

Some newspapers have made headlines about the Act bringing an end to "office jokes", whilst this may have some truth in it, it is slightly exaggerated. Not all office jokes are banned, only those which touch upon a "protected characteristic" and are unwanted and which have the purpose or effect of violating a person's dignity etc (see above). For example, a Chinese customer is happy to joke around with you about his race and his "funny" accent (arising from "protected characteristic" of race), but the fact that the customer participates in this, but does not mean it is not unwanted by him. That customer might for example feel obliged by peer pressure to join in and the jokes are not complained about them even though he finds the jokes deeply offensive. If that is so, he might well be able to make a claim of harassment related to a protected characteristic (race or his Chinese accent which arises from race).

You can see there are many potential issues which a public-facing business must consider in order to comply with the Act. It may mean a review of the policies and processes as well as staff training. Gray Hooper Holt LLP (add link) be more than happy to advise and assist in those review tasks.

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