Care home briefing 91 – Equality Act 2010: Employment implications

Introduction

The Equality Act 2010 (“the Act”) came into force on 1 October 2010 and its aim is to simplify, consolidate and to an extent expand on existing discrimination law. Sejal Raja, a Partner specialising in Employment Law at RadcliffesLeBrasseur, highlights the key issues affecting the Care Home Industry.

The protective characteristics

As with the previous discrimination legislation, the Act protects against discrimination on the following grounds:

  • Age;
  • Disability;
  • Gender reassignment;
  • Marriage and civil partnership;
  • Pregnancy and maternity;
  • Race;
  • Religion or belief (including lack of belief);
  • Sex; and
  • Sexual orientation.

These are described in the Act as the protected characteristics.

What amounts to discrimination?

There are four principal ways in which discrimination can occur, direct discrimination, indirect discrimination, harassment, and victimisation. This article will focus on those types of discrimination where the Act has made key changes.

Direct discrimination occurs when a person treats another person less favourably than they would because of a protected characteristic. The definition of direct discrimination extends protection based on association and perception. This means for example it will be unlawful to discriminate against someone because they associate with a third person who possesses the protected
characteristic, whether or not the employee possesses a protected characteristic or if they perceive someone to have a protected characteristic even if the employer is mistaken.

Harassment has also been extended under the Act. Harassment is defined as unwanted conduct that has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant, or violating the complainant’s dignity. In addition, employees are able to bring a claim against their employer where they have experienced discrimination at work but from someone outside their employer organisation.

Changes to discrimination on the grounds of disability.

It has been made easier for a person to show that they are disabled and bring a claim for disability discrimination under the Act. A person is disabled if they have a physical or mental impairment which has a substantial and longterm adverse effect on their ability to carry out normal day to day activities, which would include things like travelling to work, or excessive work load.

A person is disabled if they have a physical or mental impairment which has a substantial and longterm adverse effect on their ability to carry out normal day to day activities, which would include things like travelling to work, or excessive work load.
As with previous legislation the Act puts a duty on the employer to make reasonable adjustments to assist disabled employees
overcome disadvantages resulting from their disability. The Act includes a new type of discrimination; discrimination arising from disability. In essence this means that it is discrimination to treat a disabled person less favourably because of something connected with their disability. This type of discrimination is unlawful where the employer or other person acting for the employer knows or
could reasonably be expected to know that the person has a disability. This type of discrimination is only justifiable if an employer can show that it has a proportionate means of achieving legitimate aim.

As with previous legislation the Act puts a duty on the employer to make reasonable adjustments to assist disabled employees overcome disadvantages resulting from their disability.

The Act includes a new type of discrimination; discrimination arising from disability. In essence this means that it is discrimination to treat a disabled person less favourably because of something connected with their disability. This type of discrimination is unlawful where the employer or other person acting for the employer knows or could reasonably be expected to know that the person has
a disability. This type of discrimination is only justifiable if an employer can show that it has a proportionate means of achieving legitimate aim.

Pre-Employment Health Questions

Preemployment enquiries about health issues are thought to be one of the main reasons why disabled job applicants often fail to reach the interview stage. The Act now states that employers are unable to ask about a job applicant’s health either before offering work to an applicant, or before including an applicant in a pool of shortlisted candidates from whom the employer intends to select a person to
whom to offer work.

This does not apply to questions that are necessary to establish whether the job applicant will be able to carry out their function that is intrinsic to the work concerned. For example, in the Care Home industry care workers are required to lift patients and therefore requesting specific questions as to whether an applicant can do this aspect of the role, which is intrinsic to the role will be lawful.

© RadcliffesLeBrasseur

This article focuses on a few key changes that have been brought into effect by the Act. It is important that employers have updated their policies and trained managers on equal opportunities particularly the changes brought by the Act. This is particularly important in the Care Homes Sector which invariably engages a multicultural workforce. If you require any further information on the Equality Act and how it effects your organisation please contact Sejal Raja on sejal.raja@rlb-law.com.


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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