The Changes in Employment Law Introduced by the Equality Act 2010 - Essay Example

Introduction The equality Act which came into force on 1ST October 2010 has various implications for employers in all sectors of the economy including community organizations. Various changes were made to the employment law; some aspects remain the same, some have undergone changes while others have been introduced. For example as associative discrimination was extended to cover age, disability, gender reassignment and sex discrimination (Davies, 2011). According to Government Equalities Office (2011), the Equality Act 2010 was adopted in order to harmonize current equality duties which include; age, disability, gender reassignment, race, religion or belief, and sexual orientation. It also aims at strengthening the law in order to support the progress on equality. The paper discusses the changes on the employment law as a result of introduction of the Equality Act 2010. Equal Pay The Equal Pay Act of 1970 prohibits discrimination in pay between men and women. The Act emphasizes equal pay for equal work. Despite the act being in place gender wage gap continues to rise and women are segregated in low paying service sector jobs such as education and health. However, the claimant pursuing this allegation should be able to proof that the difference in pay is as a result of discriminatory act by the employer. To proof this, there needs to be a comparator of opposite sex performing similar work in the establishment or in a similar establishment offering same terms and conditions of employment (Kelly et al. 2011). The Act gave employers right to secrecy in remunerations thereby preventing employees from getting information as to whether they are being discriminated thus making it hard to claim unequal pay discrimination. The Equality Act 2010 however makes some changes which removed the clauses on secrecy. Employees are thus free to get information regarding remuneration. It also made it unlawful for employers to prohibit employees from discussing pay. The Act requires organizations with 250 or more employees to publish pay differences for males and females (Directgov, 2011). The Act also enables claimants to make a claim even if there is no comparator. This implies that employers need to be very cautious when offering terms of payment to avoid discrimination allegations. It has also to publish pay differences to avoid paying fines. This may affect performance related pay as those performing equal work need to be paid similar wages. While Equal Pay Act incorporates equality clause in all contracts, Equality Act incorporates sex equality in the contract (Kelly et al. 2011, p. 465). Sex Discrimination Treating one less favourably on the grounds of sex is prohibited in the Sex Discrimination Act of 1975 (Kelly et al. 2011). The act also prohibits harassment based on sex and victimization as a result of giving evidence on sex discrimination cases or for filing a complaint based on sex. The Employment Equality (sex discrimination) Regulations 2005 require a claimant to proof they were discriminated because of their sex by use of a comparator hence according to Clarke (2006), discrimination laws emphasize on differences between complainant and comparator rather than the disadvantage the complainant has experienced (161). The Equality Act has extended the associative and perceptive discrimination based on sex. It is therefore unlawful to treat someone less favourably because of having an association with a person of a particular sex or because of being perceived as belonging to a particular sex. Disability Discrimination The Disability Discrimination Act of 1995 prohibits unfair treatment on the grounds of being disabled. It prohibits direct discrimination and disability related discrimination whereby one is discriminated due to reasons associated to disability such as sickness. However, the employer can discriminate if the nature of activities does not allow hiring a disabled person, if costs involved are high or as a result of genuine occupational requirements (Governments Equality Office, 2011). The Equality Act 2010 has introduced various changes to the discrimination act. It introduced the concept of indirect discrimination because of a disability. The employer thus has to ensure that provisions, criterion or practices in employment contract do not disadvantage a disabled person. However, the employer has to have knowledge that the person was disabled in case of a claim made by a disabled person. Discrimination by association is also prohibited and definition extended to cover more aspects such as cancer and HIV. The act also prohibits pre-employment health enquiries in relation to people with disabilities (Wollenberg, 2010). Disability-related discrimination was replaced by discrimination arising from a disability and use of comparators made irrelevant. Race Discrimination Race Discrimination Act 1976 prohibits unfair treatment on grounds of racial and ethnic backgrounds. Race encompasses colour, nationality and ethnic origin. The new laws prompted by Equality Act hold the employer liable for race discrimination of its staff by a third party or person not an employee of the organization. It also requires employers not to include names in applications hence minimise race discrimination in recruitment (Davies, 2011). Job-specific Genuine Occupation Requirements The employers are legally allowed to discriminate on the grounds of job-specific genuine occupation requirements. For example, an employer can discriminate if the job requires a person of a certain religious affiliation or belief or due to the nature of the job. The Equality Act removed the job-specific genuine occupation qualifications in gender reassignment and sex and introduced occupational qualifications in all protected characteristics. The employers thus have to prove that the requirement was vital and that it is a proportionate means of achieving a legitimate aim (Government Equality Office, 2011). Employers can also discriminate for the purpose of positive action such as promoting the rights of a minority or disadvantaged group. Employment Tribunal The Equality Act gave more powers to the employment tribunal. In the past it only gave recommendation based on individual complainant but currently, it has power to recommend actions that affect whole organization so as to prevent such an occurrence in the future (Kelly et al. 2011). Employers thus are under obligation to eliminate all forms of discrimination. Associative and Perceptive Discrimination The new laws prohibit treating a person less favourably because of association with a person of particular race, gender, religion or belief, gender reassignment, sexual orientation, and age. It also prohibits discrimination because employer thinks the employee has the protected characteristics such as; disability, gender reassignment, and sex. Those undergoing gender reassignment now do not have to be under medical care to be protected (Directgov, 2011). Conclusion The employment law has undergone various changes as a result of the Equality Act 2010. The employment tribunal now has power to make recommendations that affect the whole organization. The associative discrimination was extended to cover age, gender reassignment, sex, and disability. The perceptive discrimination was also extended to cover disability, sex, and gender reassignment. The law also holds responsible employers for discrimination by third parties and those committed by its employees. The employer can defend himself by use of positive action, common occupation qualifications and in case of disability; by lack of knowledge of its existence. Indirect disability discrimination was recognized and the need to have a comparator by a complainant as evidence of discrimination done away with. The definition of discrimination was changed from ‘on grounds of’ to ‘because of’ in order to cover a wider scope than in the past. The employers are also required to publish gender pay differences. References Clarke, Linda (2006) “Harassment, Sexual Harassment, and the Employment Equality (Sex Discrimination) Regulations 2005”. Industrial Law Journal, Vol. 35(2): 161-178. Davis Alex (2011) Workplace Law Handbook: Employment Law and Human Resources. Cambridge: Workplace Law Group Ltd. Directgov (2011) “Employment Terms and Conditions” Available at http://www.direct.gov.uk/en/Employment/Employees/index.htm. Accessed 6 April 2011. Government Equalities Office (2011) “Equality Act 2010: What Do I Need To Know?’ Available at http://www.equalities.gov.uk/equality-act-2010/equality-act-2010-what-do-i-n.aspx. Accessed 7 April 2011. Kelly D., Hayward, R., Hammer, R., Hendy, J (2011) Business Law. Oxon: Routledge. Wollenberg, Anne (October, 2010) “Equality Act: A Health Warning for the Sick and Disabled”. The Guardian. http: //www.guardian.co.uk/money/2010/02/equality-act-sick-disabled. Accessed 7 April 2011. Read More