YOUR LEGAL RIGHTS

RMT helpline 0800 376 3706 :: march 2011 :: RMTnews 18 The Equality Act 2010, the brainchild of the Labour government, came about because of a much-needed overhaul of discrimination legislation that had become more and more complex. Sadly much of the complexity remains, but at least now the rules (some of which have been extended and improved) are all under one “roof”. Effective from October 1 last year, the Act outlaws discrimination for nine “protected characteristics” - age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. Crucially, the new Act extends the old definition of discrimination to include situations when people associate with someone who has a protected characteristic, or when someone is perceived to have a protected characteristic. It also specifically prohibits three different types of harassment - unwanted conduct related to a relevant protected characteristic; sexual harassment; and less favourable treatment of someone because they agreed to or rejected sexual harassment or harassment related to their sex or gender reassignment. And employers are now liable for harassment by third parties (such as customers), provided that they knew the worker had been subject to harassment on two previous occasions, but had done little or nothing to prevent it. The Act creates a new concept of discrimination arising from disability, so that it is now discriminatory to treat a disabled person unfavourably because of something arising “in consequence of “ their disability (for instance, a tendency to make spelling mistakes because of dyslexia). And it is also now unlawful, except in certain circumstances, for employers to ask about a job candidate’s health before offering them work. The big changes, though, are around pay. Although they don’t go nearly far enough, it is now possible for a person bringing an equal pay claim to rely on a hypothetical comparator, if they can show they have been directly discriminated against. Employers can no longer stop their employees from having a discussion about whether there are differences in their pay related to protected characteristics, nor can they enforce “gagging clauses” in people’s contracts. However, they can stipulate that employees keep pay rates confidential from certain groups outside the workplace, for example competitor organisations. The missed opportunity, though, was around pay audits. Although the Act allows for compulsory pay audits for organisations with more than 250 employees from 2013, it is not clear (given this government’s preferred voluntary approach) when or if this section will ever be enacted. The government has, however, agreed to extend the public sector equality duty to all nine protected characteristics (from three previously), as of April this year. The “general duty” applies not just to public bodies, but also private companies carrying out public functions on behalf of a public authority. To decide whether the company has a public function depends on whether it is publicly funded; it is taking the place of central or local government; it is exercising powers covered by statute; or is providing a public service that works closely with the delegating state body. Trade unions can then require the company to abide by the general duty to eliminate unlawful discrimination, advance equality of opportunity and foster good relations between people from different groups. Finally, the Act allows employers to treat someone with a protected characteristic more favourably during the process of recruitment and promotion. Despite headlines inferring that “positive action” would lead to men being sacked or passed over for women candidates, this just means that employers can now choose one candidate with a protected characteristic over another if they think they have been disadvantaged in some way, as long as they are as qualified as the other person. YOUR LEGAL RIGHTS Thompsons solicitor Doug Christie looks at how the 2010 Equality Act can help you fight discrimination at work RMT personal injury freephone helpline 0800 376 3706