Comprehensive Guide to the Equality Act 2010

The Equality Act 2010 & Employment Law

The Equality Act 2010 (‘the Act’) makes it unlawful to discriminate in the field of employment, education and the provision of goods and services.  This page focuses on discrimination in the field of employment.

The Act brought together once piecemeal legislation on discrimination dating back to the 1970s. The main aim of the Act was to consolidate and introduce consistency across the different strands of discrimination. It protects, among others, employees, job applicants and former employees from unlawful discrimination.

The Act is accompanied by extensive Explanatory Notes which act as a guide to the meaning of the Act. The Equality and Human Rights Commission (‘EHRC’), the statutory body whose aim is to promote equality, has also produced a statutory Code of Practice on Employment (‘the Code’) to assist with interpreting the Act.

Discrimination in employment is unlawful when it is based on particular characteristics and it is committed in a manner that is expressly prohibited under the Act.

Purpose of the Act

The Equality Act 2010 aims to:

• Eliminate discrimination, harassment, and victimisation.

• Advance equality of opportunity.

• Foster good relations between people who share a protected characteristic and those who do not.

The Equality Act 2010

The Equality Act 2010 (‘the Act’) came into force in October 2010.

1. It consolidates and replaces the previous discrimination legislation, including: the Equal Pay Act 1970; the Sex Discrimination Act 1965; the Race Relations Act 1976; and the Disability Discrimination Act 1995.

2. The Act provides a legal framework to protect the rights of individuals and advance equality of opportunity for all.

3.  It provides a discrimination law which protects individuals from unfair treatment and promotes a fair and more equal society.

Key Changes and Concepts in Defining Discrimination: Detail

The EqA 2010 introduced several significant changes to how discrimination is defined and addressed in employment:

Direct Discrimination

The Act harmonises the definition of direct discrimination by replacing the phrase "on grounds of" with "because of." However, this change was primarily intended to make the language more accessible rather than alter its meaning. Crucially, it explicitly allows claims based on association (discriminating against someone because of their connection to a person with a protected characteristic) and perception (discriminating against someone based on the belief they have a protected characteristic, even if they do not) across most protected characteristics.

Combined Discrimination

A new provision, Section 14, allows claims for "combined discrimination" based on a combination of no more than two protected characteristics (excluding pregnancy/maternity and marriage/civil partnership). However, this was not effective until April 2011 at the earliest, and the Coalition government did not commit to that date. This was intended to address situations where discrimination arises from a unique combination of characteristics, which previously tribunals had to consider separately. The Act clarifies that a claimant does not need to show direct discrimination for each characteristic separately to succeed with a combined claim.

Indirect Discrimination

The Act harmonises the definition of indirect discrimination across all protected characteristics, including extending it to disability and gender reassignment, which previously had no explicit prohibition on indirect discrimination. The test requires showing that a provision, criterion, or practice (PCP) puts a group with a shared characteristic at a particular disadvantage, and that the claimant also experiences this disadvantage.

Objective Justification Test

The Act harmonises the concept of justification in discrimination cases to a single test: "a proportionate means of achieving a legitimate aim". This test applies to indirect discrimination and direct age discrimination, and significantly, replaces the more subjective "material and substantial" test for disability-related discrimination.

Harassment

Protection against harassment is harmonised across most protected characteristics (excluding pregnancy/maternity and marriage/civil partnership). The definition covers "unwanted conduct related to a relevant protected characteristic" with the purpose or effect of violating dignity or creating a hostile environment. The Act also introduces explicit employer liability for harassment by third parties in the workplace, provided the employer knew of at least two prior instances of third-party harassment. This extends a provision previously limited to sex discrimination.

Victimisation

The EqA 2010 removes the requirement for a comparator in victimisation cases, simplifying claims for individuals who have done (or are believed to have done) a "protected act" such as bringing proceedings, giving evidence, or making an allegation under the Act.

Lawful Discrimination, Defences and Positive Action

The Act revised certain defences and the scope for positive action:

Occupational Requirements

The Act introduces a new, harmonised "occupational requirement" (OR) defence across all protected characteristics, replacing the previous "genuine occupational requirement" (GOR) and "genuine occupational qualifications" (GOQs). This permits a requirement for a particular protected characteristic if it is an occupational requirement and its application is a proportionate means of achieving a legitimate aim. Specific provisions exist for organised religions to discriminate on grounds of sex, marital status, gender reassignment, and sexual orientation under certain circumstances, such as complying with religious doctrines or avoiding conflict with strongly held religious convictions.

Positive Action

The Act significantly broadens the scope of permitted positive action, allowing employers to take proportionate measures to:

1. Enable or encourage persons with a protected characteristic to overcome a disadvantage.

2. Meet the specific needs of persons with a protected characteristic.

3. Enable or encourage participation where it is disproportionately low. Crucially, in recruitment and promotion, employers are permitted to treat a person with a protected characteristic more favourably if they are "as qualified as" another candidate who does not share the characteristic, provided there is no policy of automatic preference and the action is a proportionate means of achieving the aim. This provision was designed to allow employers to address under-representation without resorting to quotas or "positive discrimination" (selecting less-qualified candidates). This specific aspect was not brought into force on 1 October 2010, and the Coalition government did not commit to its implementation.

Protected Characteristics

The Equality Act 2010 identifies nine protected characteristics:

1. Age

• Protection applies to people of all ages.

• Example: An employer cannot refuse to hire someone because they are "too old" or "too young" for a role.

2. Disability

• A person has a disability if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

• Example: Employers must make reasonable adjustments to support disabled employees.

3. Gender Reassignment

• Protection applies to anyone who is proposing to undergo, is undergoing, or has undergone a process (or part of a process) to change their gender.

• Example: A transgender person must not be treated unfairly at work because of their gender identity.

4. Marriage and Civil Partnership

• Protection applies to individuals who are married or in a civil partnership.

• Note: Single people are not protected under this characteristic.

• Example: An employer cannot treat someone less favorably because they are married or in a civil partnership.

5. Pregnancy and Maternity

• Protection applies to women who are pregnant, have recently given birth, or are breastfeeding.

• Example: A woman cannot be dismissed or treated unfavourably at work because she is pregnant.

6. Race

• Includes colour, nationality, ethnic or national origins.

• Example: A person cannot be denied a job or service because of their race or ethnicity.

7. Religion or Belief

• Includes any religion (e.g., Christianity, Islam, Hinduism) or belief system (e.g., atheism, humanism).

• Also includes philosophical beliefs, provided they are genuinely held and affect how someone lives their life.

• Example: An employee must be allowed to take time off for religious holidays.

8. Sex

• Protection applies to men and women.

• Example: A woman must not be paid less than a man for doing the same job.

9. Sexual Orientation

• Includes being heterosexual, gay, lesbian, or bisexual.

• Example: A person cannot be refused a service or harassed because of their sexual orientation.

Discrimination based on any of these characteristics is prohibited.

Bringing a Discrimination Claim

Who is protected?

The EA protects a range of individuals within the field of employment, including, among others, employees and workers (present and former) and job applicants. The EA also protects a broader category of self-employed individuals, provided that their contract to perform work obliges them to perform the work personally.  Anyone who has protection has the right to present a claim to the tribunal if they believe their rights have been infringed.

Who is liable?

An employer will be primarily liable if it unlawfully discriminates against anyone whom it employs.  Employers can also be liable for discriminatory acts perpetrated by their employees or agents.  Where this happens, the employee can bring a claim against the perpetrator directly (e.g. the harassing employee in a s.26 EA claim will be individually liable) and against the employer, who may be vicariously liable under s.109 EA, which provides that anything done by an employee in the course of employment is treated as having been done by the employer, regardless of whether the employee’s acts were done with the employee’s knowledge or approval. The employer has a defence to vicarious (also known as secondary liability) if it can show that it took all reasonable steps to prevent the employee from doing the discriminatory act (s.109(4) EA).

Employment tribunal procedure

The time limit for presenting a discrimination claim is 3 months (in addition to the mandatory ACAS early conciliation period) from the unlawful act of discrimination (s.123 EA). Tribunals have the discretion to extend the time limit in discrimination cases under the ‘just and equitable’ rule (s.123(1)(b) EA).

Evidence

The standard of proof in discrimination cases is whether, on the balance of probabilities, discrimination occurred. The burden of proving discrimination has two stages. The burden initially rests with the claimant to prove, on the balance of probabilities, facts from which a Tribunal could conclude, in the absence of an adequate explanation, that the respondent committed an act of unlawful discrimination.

If the claimant does prove such facts, the burden of proof will then shift to the respondent, who must demonstrate that there is an adequate explanation for the apparent discrimination, i.e. disprove a primary finding of discrimination by showing that the treatment was in no sense whatsoever on unlawful grounds. If the claimant does not prove such facts, the claim will fail.  If the respondent fails to discharge this burden, the claim will succeed. 

Discrimination claims are notoriously difficult to prove, as they are often subtle, covert, subconscious, and in some cases, unintentional. So if you need advice on how to handle any work-related complaints, such as a grievance, please get in touch. There is very rarely direct or overt evidence. The challenge for claimants in particular is to find evidence that would allow a tribunal to infer discrimination from the available evidence.

Examples of evidence

1. Witnesses

2. Employer’s explanation

3. Other acts of discrimination

4. Comparisons

5. Statistics

6. Questionnaires

7. Previous complaints

8. Equal Opportunities Policy

The EHRC Employment Statutory Code of Practice

The EHRC is committed to eradicating discrimination and advancing equality as part of its mission. It is the responsibility of the Commission to educate people about illegal forms of discrimination, as well as to encourage groups to engage in effective practices and to provide advice and direction pertaining to legal matters.

The EHRC Employment Statutory Code of Practice, which became effective on April 6, 2011, has been updated. On March 31, 2014, a supplemental document to the Code was made public. On September 4, 2015, the Code underwent its most recent revision. When making decisions on claims brought under the Equality Act of 2010, employment tribunals are required to take into account the Code of Practice wherever it is applicable.

The law does not mandate that a company have a policy on equal opportunity. On the other hand, the EHRC Employment Statutory Code of Practice ("EHRC Code") suggests that organisations have policies in place. In chapter 18 of the EHRC Code, guidance is provided on what components of an equal opportunities policy should be included and how such a policy should be drafted. The EHRC Code does not, in and of itself, establish any legal responsibilities on the employer; nonetheless, it is taken into consideration by a Tribunal when considering whether or not discrimination has occurred when an employee brings a claim against their company. When there has been a violation of the EHRC Code, it may have the effect of shifting the burden of evidence to the employer in a discrimination claim, requiring them to produce an appropriate explanation for any unfavourable treatment that is claimed to be discriminatory. This is only the case when the violation is relevant.

Setting basic standards of conduct and, as a result, lowering the risk of workers bringing legal action against their employer may be facilitated by the implementation of a policy on equal opportunities. It is easier for an employer to raise the ‘reasonable steps’ argument under section 109(4) of the Equality Act 2010 if they have a policy in place, provided that the policy is implemented with publicity and suitable training, and if the appropriate action is taken in the case of a violation. This implies that an employee is exempt from responsibility for discriminatory conduct committed by other workers, provided the employer can demonstrate that they took "all reasonable steps" to prevent illegal acts from occurring on the premises.

Impact of the Equality Act

The Equality Act 2010 has significantly influenced UK society by:

• Strengthening legal protections against discrimination.

• Encouraging organisations to adopt inclusive practices.

• Raising awareness of equality and diversity issues.

Here are paragraphs with headings for additional content that would enhance the current webpage's summary of the Equality Act 2010, drawing from the provided sources:

Background and Legislative Journey

The Equality Act 2010 (EqA 2010) emerged from a comprehensive review process initiated by the Labour government in February 2005, known as the Discrimination Law Review. This review aimed to streamline discrimination legislation into a single Act, considering the main principles and enforcement approaches. Concurrently, the independent Equalities Review, chaired by Trevor Phillips, examined societal causes of inequality, proposing a single integrated public sector duty and greater scope for "balancing measures". These initiatives led to the Green Paper, "A Framework for Fairness," in June 2007, which consulted on proposals to harmonise, simplify, make more effective, and modernise the law. Following consultation, the White Paper, "Framework for a Fairer Future," published in June 2008, outlined headline proposals, including a unified public sector duty and extended positive action. The Act received Royal Assent on 8 April 2010, with most provisions taking effect on 1 October 2010. The primary goal was to bring together and restate existing discrimination legislation across various protected characteristics, adopting a single, consistent approach where appropriate.

Specific Protections for Disability

The EqA 2010 made notable changes to disability discrimination law:

Definition of Disability

The Act introduces a common definition of disability, based on the previous Disability Discrimination Act (DDA), but removes the exhaustive list of "capacities" previously required to prove the effect on normal day-to-day activities. This change was intended to simplify the process for individuals proving their disability.

New Types of Discrimination

The Act introduces two new types of disability discrimination:

Indirect Disability Discrimination

This extends the concept of indirect discrimination to disability, meaning a PCP that disproportionately disadvantages disabled people is unlawful unless objectively justified.

Discrimination Arising from Disability

This new concept, under Section 15, is designed to replace the DDA's "disability-related discrimination" provisions, which had been significantly weakened by case law. It protects disabled people from unfavourable treatment "because of something arising in consequence of B's disability," unless the treatment is a proportionate means of achieving a legitimate aim. Employers can avoid liability if they did not know or could not reasonably have been expected to learn of the disability.

Reasonable Adjustments

While largely maintaining the existing duty, the Act makes it explicit that the costs of a reasonable adjustment should not be passed on to the disabled person. The employment duty to make reasonable adjustments remains non-anticipatory; employers are only required to make adjustments once a specific employee's disability is known or ought reasonably to be known.

Pre-employment Health Questions

The Act outlaws employers' pre-employment health enquiries before a job offer, except for prescribed reasons. Permitted reasons include establishing the ability to undergo assessments, carry out intrinsic job functions (with reasonable adjustments considered), monitor diversity, or take positive action. Suppose an employer asks a prohibited health question and subsequently rejects an applicant. In that case, the burden of proof in a direct disability discrimination claim can automatically shift to the employer to show no discrimination occurred.

Equal Pay Provisions

The EqA 2010 aims to improve equal pay transparency and enforcement:

Material Factor Defence and Indirect Pay Discrimination

Section 69 contains new provisions for the employer's "material factor" defence, largely codifying existing case law. A key change is that a material factor leading to a statistical disparity in pay between sexes (indirect pay discrimination) now requires objective justification. The Act also explicitly states that the "long-term objective of reducing inequality between men's and women's terms of work is always to be regarded as a legitimate aim" for justification.

Hypothetical Comparators

While the equal pay regime under the Act generally requires a real comparator, Section 71 allows direct sex discrimination claims related to contractual pay to be brought using hypothetical comparators. This means that in situations where there is no actual male comparator, a woman can still claim direct sex discrimination if, for instance, her employer states she would be paid more if she were a man.

Pay Transparency

The Act limits the enforceability of contractual "pay secrecy" clauses (often called "gagging clauses"). Such clauses are unenforceable against an employee who makes or seeks a "relevant pay disclosure," which is defined as a disclosure made for the purpose of finding out whether there is a connection between pay and a protected characteristic. Additionally, the Act introduces a power for the government to require large employers (250+ employees) to publish information on their gender pay gap. The Labour government intended to use this power by 2013 if sufficient progress on voluntary reporting was not made, but the Coalition government did not commit to bringing this into force.

Enforcement and Public Sector Duties

The Act strengthens enforcement powers and introduces new public sector duties:

Employment Tribunal Recommendations

Employment tribunals are given strengthened powers to make recommendations that benefit the wider workforce, not just the individual claimant. This aims to prevent similar discrimination from occurring in the future, especially since many claimants leave the organisation after a successful claim. Examples of recommendations include introducing equal opportunities policies, improving harassment policies, or retraining staff.

Socio-economic Inequality

The Act places a new duty on certain public authorities to have "due regard to the desirability of exercising them in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage" when making strategic decisions. This provision, however, was not brought into force on 1 October 2010.

Single Equality Duty

The existing public sector equality duties (race, gender, and disability) are replaced by a unified duty covering all protected characteristics. This duty requires public authorities to have "due regard" to the need to eliminate discrimination, harassment, and victimisation; advance equality of opportunity; and foster good relations between persons who share a protected characteristic and those who do not.

Public Procurement

The Act clarifies that public bodies can use procurement to drive equality, enabling Ministers to set out how this should be done. For instance, a council commissioning a building project in an area with disadvantaged women could include a contract condition for the contractor to run a positive action programme to train women in relevant trades.