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Russell Cooke Solicitors - Employment Law Update



The first stage of implementation of the Equality Act 2010 (“the Act”) will begin on 1 October. Many will now be familiar with the key changes that will come into force. In this briefing we highlight some of the most important changes and their likely consequences for employers.

Contact details for members of the team are provided at the end of the Update. If you have a query about the issues covered or about any employment law related matter please do not hesitate to get in touch.



The various prohibited forms of discrimination are now drawn together into a single list of “protected characteristics” (age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership and pregnancy and maternity). There will now be a more consistent legal test for discrimination claims in relation to all of these areas. In addition, there is no longer any requirement for the employee to be under medical supervision in order to be protected from discrimination on the grounds of gender reassignment.

The scope for discrimination claims will increase. The new definition of direct discrimination makes it clearer than it previously was that discrimination against an individual because they are perceived to have a protected characteristic is prohibited. Perceptive discrimination, as it is known, now also applies for the first time to direct disability discrimination. This means that employees will be able to bring such claims relying only on the fact that their employers thought they had a disability.

Associative discrimination (where the individual who has been discriminated against is not the person with the protected characteristic, but someone else who has been offended or otherwise affected by what has been said about or done to that person) will also be covered more clearly than before, although the name is something of a misnomer, since no association between the two has ever been required. This new definition may give rise to more claims from carers. For example, claims of age discrimination may be brought by employees caring for elderly relatives. In order to bring an associative disability discrimination claim, however, an employee will still need to be prepared to prove that any disabled person relied on does have that disability, which is likely to be difficult to do without involving that person in the case.

In addition, employers face uncertainty as to what might be treated as evidence of discrimination on the grounds of a perceived protected characteristic. Will the Tribunals be quick to infer that a recruitment decision that refers to someone being ‘difficult and unlikely to connect well with the team’ is in fact based on the employer’s perception that the employee was disabled, perhaps suffering from a mental illness?

While generally the new Act reflects current law, there are a number of further important changes relating to disability discrimination. 


The duty to make reasonable adjustments

This duty remains largely unchanged. An explicit subsection on the provision of auxiliary aids (additional pieces of technology or equipment) now applies to the field of employment. Where the lack of such aids places a disabled individual at a substantial disadvantage, the employer must take reasonable steps to provide these. Where the aid required relates to the provision of information, reasonable steps must be taken to provide such information in a reasonable format. Provision of such equipment and information would have formed part of the general duty on an employer to make reasonable adjustments under the old legislation and does not represent a change in practice.


Pre-offer disability & health questions

Enquiries about a job applicant’s disability or health (including, for instance, asking about the number of sick days taken in previous years) will be unlawful unless the employer can show that they were carried out for a permitted purpose. The permissible reasons are:

- Assessment of the duty to make reasonable adjustments
- Establishing whether the applicant can carry out a function that is intrinsic to the job concerned
- Monitoring diversity
- Where there is an occupational requirement to have a particular disability
- For the purposes of taking positive action permitted under other provisions of the Act.


What is the sanction?

It has been noted by some that no new claim has been created in respect of pre-offer health questions. Nonetheless, it is still advisable to pay particular attention to the new provision, as a breach can have two possible consequences. If an individual brings a claim for disability discrimination in which such questions have been asked without a proper justification, it will no longer be for the employee to prove that there has been discrimination. Instead the burden will shift to the employer to show that there was no discrimination. The Equality and Human Rights Commission can also investigate and commence enforcement action if they find that a breach has occurred.

Use of pre-offer health questions may well give rise to more disability claims in the future and employers should review their recruitment procedures accordingly. 


Discrimination arising from disability

This is a new cause of action which replaces what used to be called “disability related discrimination” under the Disability Discrimination Act 1995. Under the new provision, less favourable treatment because of something that arises in consequence of an individual’s disability will amount to discrimination unless the employer can justify their actions as a proportionate means of achieving a legitimate aim. Examples of possible consequences of a disability will include sickness absence, inability to carry out some or all duties or failures to comply with reporting or other procedures. Decisions to commence capability or disciplinary proceedings against someone who is disabled in such circumstances may amount to less favourable treatment and the employer must be able to show that the action taken is a proportionate means of achieving a legitimate aim. This provision was introduced to reverse the controversial outcome in the House of Lords case of Mayor and Burgesses of the London Borough of Lewisham v Malcolm [2008] IRLR 700.


Pay secrecy clauses

Any contractual provision that prohibits an employee from disclosing his or her pay will be rendered unenforceable when the disclosure in question is made to ascertain whether there is any connection between pay and one of the protected characteristics, such as sex. This is a limited provision and falls far short of outlawing such a clause. However, staff in the private sector will be more likely to complain about pay disparities in the confidence that disclosure of pay amongst colleagues is unlikely to be prohibited, despite contractual terms to the contrary.



Protections in this area have been amended to ensure consistency in relation to harassment on the grounds of sex and other protected characteristics. Now, harassment of employees by third parties on any of the prohibited grounds can give rise to a discrimination claim. The definition of harassment has also been widened. The unwanted conduct simply needs to be related to a protected characteristic. Practically, this again means that there will be no requirement that the claimant actually possess the protected characteristic in question. For example, an employee may direct homophobic comments towards a colleague, without any belief that the victim is gay, and this would still be likely to amount to harassment on the grounds of sexual orientation.

Employers will need to ensure that this change in the law is understood by managers dealing with grievances and that grievance procedures focus on the nature of the comments made, rather than the victi


Employment Tribunal remedies

Under section 124 of the Act, a Tribunal may recommend that an employer take certain steps to benefit the wider workforce. Previously, recommendations had to relate to the claimant, who might have already left employment. When negotiating settlements, employers may find themselves faced with requests for changes to the workplace from ex-employees who are fighting their case as a matter of principle.



Charities can only restrict the provision of a benefit or service to those with a particular protected characteristic if:

- They are acting in pursuance of their charitable objects as set out in their governing document; and

- The restriction is a proportionate means of achieving a legitimate aim or for the purpose of preventing or compensating for a disadvantage linked to the protected characteristic.

The complete prohibition on limiting beneficiaries on the grounds of colour remains. If a charity has such a restriction, their governing document should be read as defining the class of beneficiaries as people generally. Previously, different exemptions were available in different areas. Notably, a wider exemption was available for charities restricting the provision of a benefit to persons of a particular religion.

Charities that currently restrict benefits to members of a particular religion may be able to rely on a separate exemption. If a charity makes acceptance of a religion or belief a condition of membership and access to any benefit, facility or service, the charity may maintain this rule as long as it first imposed the restriction before 18 May 2005 and has continuously applied this rule since that date. 


Private clubs and associations

Associations and private clubs will be prohibited from discriminating against both potential and actual members because of any protected characteristic. In particular, this will mean that the duty to make reasonable adjustments will apply.



Some key provisions are still being considered and have no implementation date. These include the socio-economic duty on public authorities, dual discrimination and the duty on private sector organisations with more than 250 employees to report gender pay information.


Contact us:

The Employment Team
Russell-Cooke Solicitors,
2 Putney Hill,
SW15 6AB

Tel: 020 8789 9111


This material does not give a full statement of the law. It is intended for guidance only, and is not a substitute for professional advice. No responsibility for loss occasioned as a result of any person acting or refraining from acting can be accepted by Russell-Cooke.

© Copyright: Russell-Cooke,

Specialists in advising charities, not for profits and public bodies
Jane Klauber (Partner) – 020 8394 6483 Jane.Klauber@russell-cooke.co.uk  
Deborah Nathan (Solicitor) – 020 8394 6437 Deborah.Nathan@russell-cooke.co.uk

The Employment Team at Russell-Cooke
Anthony Sakrouge (Partner) – 020 8394 6504 Anthony.Sakrouge@russell-cooke.co.uk
Alex Bearman (Partner) – 020 8394 6524 Alex.Bearman@russell-cooke.co.uk
Edward Wanambwa (Partner) - 020 8394 6445 Edward.Wanambwa@russell-cooke.co.uk
Fudia Smartt (Solicitor) – 020 8394 6525 Fudia.Smartt@russell-cooke.co.uk
Emma O'Byrne (Solicitor) – 020 8394 6537 Emma.O'Byrne@russell-cooke.co.uk
Kate Minett (Solicitor) - 020 8394 6557 Kate.Minett@russell-cooke.co.uk

If you would like to reproduce some or all of our updates in your own publication, contact Alex Bearman on 020 8394 6524 or e-mail on Alex.Bearman@russell-cooke.co.uk 


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