Practical implications of the Equality Act 2010

Irrespective of the Equality Act, firms should already be taking steps to ensure that discrimination is stamped out and equality promoted. All of the main regulators have specific rules dealing with the matter and recently some regulators, in particular the Solicitors Regulation Authority, have started to be far more pro-active in following up issues of unfair treatment.

Aside, however, from the general duties imposed by the various regulations and the provisions to which firms have been subject before the introduction of the Equalities Act, what duties are you now subject to as a result of the new legislation and what should you be doing to ensure compliance. We will deal elsewhere with the kind of general duties that you should be aware of.

The following is an alphabetical list of the changed provisions of which you should be taking account.

Barristers and advocates

Although it is not a new requirement, the provision dealing with barristers and advocates is one which has been dealt with at length in the Equality Act and is worthy of mention.

The Equality Act specifically provides in sections 47 and 48 that a person must not, in relation to instructing a barrister discriminate by subjecting the barrister to a detriment.

The practical effect of this is that a firm must not withhold instructions from a barrister on the basis of a protected characteristic, even where the instruction to do so comes from the client.

Indeed, notes 15 and 16 of rule 6 of the Solicitors Code of Conduct 2007 specifically provides that :

15. You should instruct barristers on the basis of their skill, experience and ability and it is unlawful to instruct them, or avoid instructing them, on the basis of any of the grounds in 6.01, or to request or encourage a barrister’s clerk to do so.

16. You should normally comply with a client’s request to instruct a named barrister (subject to your duty to discuss the suitability of that barrister for a particular type of work). Where a client’s instructions as to the choice of barrister are based on any of the grounds in 6.01, you should encourage the client to modify their instructions. If they refuse to do so, you should cease to act for them as aiding an unlawful act is prohibited.?

Breastfeeding mothers

It is now unlawful for a business to discriminate against a woman because she is breastfeeding a child. You may, therefore, need to make certain arrangements to accommodate this ? for example in waiting areas or offices.

You must make sure that a mother who is breastfeeding is able to do so and the fact that other clients or staff might find this uncomfortable would not be a defence.

You may, therefore, wish to make available a private area near to reception where a mother could go to breastfeed although there is no obligation upon you to do so.
You should also take steps to ensure that all partners, members and staff are aware of the change to the legislation and the duties they now face.

You will also be responsible for the behaviour of other clients towards the breastfeeding mother and if the mother is being treated unfairly must take steps to ensure that the behaviour ceases.

Disability

Be aware that the provisions relating to disability have been widened and now apply, inter alia, to indirect discrimination. Thus, if you have a provision or criterion or practice within your firm which you apply to everyone but which is more difficult for a person with a disability, or a specific disability, to comply with, then, unless you can show that there is an objectively justifiable business reason for it and it is a proportionate means of achieving a justifiable aim, you may find that you have discriminated against a person with a disability.

Bear in mind that the cost of changing a policy would not in itself be a sufficient reason for not making the change.

A further factor to be aware of is that the new legislation places a burden on businesses not to treat unfavourable a disabled person where the treatment is not because they have a disability (which would be direct discrimination) but because of something connected with their disability. Thus, for example, if a person found spelling to be problem as a result of dyslexia, the firm may be found to have discriminated against them if they were to refuse to promote them because they could not spell, unless the firm could show that it was justifiable in all the circumstances to do so.

A factor to bear in mind in relation to this, however, is whether or not the firm had actual knowledge of the person?s disability or should have realised that they had that disability.

Finally in this section, firms should bear in mind the need for reasonable adjustment to prevent a person with a disability from being at a substantial disadvantage. The Equality Act sets out three requirements for making reasonable adjustments:

• Adjustments to a policy or procedure ? firms need to monitor their policies and procedures to ensure that they do not put those with a disability at a disadvantage and then take steps to change or dispense with any policies and procedures which do.
• Adjustments that involve auxiliary aids and services ? liaise with those who have a disability to see what aids and/or services you can put in place to accommodate their disability. An example of this might be providing an audio version of terms and conditions for those whose sight is impaired.
• Adjustments to physical features ? look into making reasonable changes to premises and access to and egress from premises so as to accommodate the needs of staff and clients with, for example a mobility problem.

Employment tribunal recommendations

You need to be aware that if an employee brings proceedings against you in the employment tribunal that, in addition to any finding in favour of the employee, the tribunal may also order that you take steps to ensure that you act in such a way as to prevent discrimination from occurring against other employees within the organisation.

Equal pay

It is now possible for someone in your organisation to allege that they are not receiving equal pay even where there is no direct comparator for them to use.

Gender reassignment

It is unlawful to discriminate against or harass all transsexual staff and clients, whether or not they are undergoing a medical procedure. You will need, therefore, to be aware of any staff or clients who have indicated n intention to change gender, even if they do not intend to undergo a medical procedure, and respond accordingly.
You must therefore ensure that all partners, members and staff are aware that they must not discriminate in these circumstances.

One question which always occurs in relation to transsexual men and women is in relation to toilet and changing facilities. This is going to become even more sensitive now that a person does not even need to be intending to undergo a medical procedure. Often both male and female staff will indicate a reluctance to share toilet and changing facilities with someone who is either still, or has recently been, of the opposite sex.

Unfortunately, there is no easy answer to the problem and it will have to be handled with some care and delicacy, balancing the interests of the transsexual person against those of the remainder of the staff.

If the situation arises, firms should:

• take steps to raise the issue with the transsexual person and find out what they would like to do. They may not feel comfortable sharing facilities either;
• assess the likely impact upon other staff and clients in terms of privacy/embarrassment;
• assess the impact upon the business of acquiescing to any requirement by the transsexual person to be allowed to use the facilities of their chosen as opposed to birth sex;
• see whether an alternative solution, such as unisex toilets and changing facilities can be used;
• ascertain whether the problem is simply just one of understanding on the part of other staff and where necessary provide training and guidance.

Harassment

The Equality Act deals with two main forms of harassment:

• unwanted conduct related to a protected characteristic, and
• unwanted conduct of a sexual nature.

As a firm you must ensure that neither you, nor any of your staff, suppliers or clients, engage in activity of this nature.

Bear in mind the following points:

• the conduct must have the purpose or effect of violating a person?s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment;
• it is harassment to treat someone less favourably because they have rejected or submitted to sexual harassment;
• whilst harassment occurs only if it is unwanted, nevertheless it is unlawful whether it was intended or not;
• the perception of the person being harassed of the behaviour is relevant;
• the conduct does not have to directed at the person for it to be capable of being harassment; and
• the person does not have to have a protected characteristic for them to be capable of feeling harassed by actions related to it.

Bear in mind also that there is a concept of third-party harassment. The Equality Act renders an employer, for example, potentially liable if employees are harassed by people other than employees of the company, for example clients or suppliers. It should be noted, however, that liability will only arise when harassment has occurred on at least two previous occasions and the employer was aware that it had taken place but failed to take reasonable steps to prevent it from happening again.

Thus, if a delivery person regularly makes sexual references to a receptionist and a partner or member is aware of this and that the receptionist regards the references as unwanted and degrading, then failure by the partners or members to take steps to prevent the behaviour could leave them liable to an action for third-party harassment.

Pay secrecy

An employer is no longer entitled to insist that staff do not reveal how much they are being to each other so as to ascertain whether there is an inequality related to a protected characteristic. However, the employer can still take such steps to prevent discussions with those outside of the firm ? e.g. competing businesses.

Firms who have such a clause in their contract of employment should take steps to remove it.

Positive action

Businesses who wish to do so (it is a voluntary option under the legislation) may use positive action as a means targeting the provision of services at a particular under-represented or disadvantaged group and, in certain circumstances, to allow those from disadvantaged a better opportunity to work for them.

So far as clients are concerned firms can undertake research to ascertain whether there are groups who are disadvantaged and who would benefit from some form of positive action so that they can access the firm?s services. In doing so, however, the firm must ensure that it does not discriminate against those who are not from that group.

Thus, for example, a firm could target a particular service at a disadvantaged group, charge a lower fee because they are known, for example, not to be high wage earners, or open at different times of the week to enable them to access the firm?s services. All that is required is that you have undertaken some research into need and have a reasonable belief that the positive action is necessary.

With regard to staff, the matter becomes a little more complicated because, although the firm can encourage those from disadvantaged groups to apply for jobs or promotion within the firm, the person who is appointed to any particular role must still be the most appropriate person for the job, whether they are from that group or not.

Pre-employment health checks

You should note specifically that the Equality Act limits the circumstances in which you can ask health-related questions before you offer someone a job. The only occasions when it would be appropriate would be in relation to:

• deciding if there needs to be a reasonable adjustment for person during the section process;
• deciding if the applicant can carry out a function that is essential to the job;
• monitoring diversity amongst job applicants;
• taking positive action to assist those with a disability;
• ensuring a candidate has a disability where the job genuinely requires it.

Once a person has been selected for a job you can carry out health checks in the normal way.

Finally, all firms are advised to take a look at their diversity policy and to make such changes to it as are necessary to reflect the new legislation. Do remember that if your policy is out of date you may not be able to persuade your regulator that you are taking steps to ensure that discrimination does not occur within your firm. In particular ensure that all of the references to legislation are updated where appropriate, that the new terminology is used within the body of the policy and that staff are trained and updated on the provisions of the Equality Act and how it affects your firm.