Equality Act in action

Diversity / 04 October 2010

The majority of the Equality Act 2010 is now in force. Laura Johnson asks whether it’s a great stride forward in equality at work or a token gesture on a controversial issue

The new Equality Act, which targets discrimination across issues like age, gender and pay, has come into force in October 2010. Hailed as a landmark move to harmonise discrimination legislation, the Act has nevertheless undergone some changes from its initial incarnation. “Bearing in mind the Equality Act is a piece of Labour legislation being activated by the coalition, some of the more contentious things are being held back,” says Martin Chitty, employment team partner at law firm Wragge & Co. “In lots of ways the Equality Act is nothing more than a very big piece of consolidating legislation.”

The Act harmonises nine pieces of existing equality legislation into one neat package. This successfully brings consistency to how discrimination is defined and approached across race, gender, age, gender reassignment, marriage and civil partnership, pregnancy and maternity, religion and belief and sexual orientation.

It also extends equality law to cover those who are ‘perceived’ to have a protected characteristic. For example, although an employee isn’t disabled themselves, if they have a partner, family member or good friend who is and they can show they are being treated unfairly as a consequence of that person’s disability, they too will be protected.

Real change?

Unfortunately, in terms of groundbreaking policy, the Act is underwhelming. Most of the underlying law remains the same. Notably, employers still don’t have to disclose how much they pay women compared to men. This obligation remains voluntary until at least 2013; something Ceri Goddard, chief executive of the Fawcett Society has described as “tantamount to endorsing the shocking gender pay gap.”

More employers are approaching the question of equality and diversity very positively as something they want to do because they’re a good business. The legal compliance bit is often lower down the food chain.

Martin Chitty, employment team partner, Wragge & Co

The Act, however, makes it easier for employees to openly discuss what they are paid without fearing victimisation.

“The right to have a pay secrecy clause in a contract has not been abolished,” Chitty points out. “You can still have the clause but you have to be careful how it’s used.”

Basically, regardless of any clause in their employment contract to the contrary, employees have the right to ask a colleague, “how much are you paid?” As long as they can justify asking it because they think a colleague is paid differently because of gender, race, disability or another protected characteristic. This may be an uncomfortable prospect for some employers but it’s unlikely to lead to an explosion in tribunal cases.

Similarly, banning blanket pre-employment health questionnaires in favour of carefully tailored, job specific questions may be more burdensome for recruitment teams but is not particularly controversial.

Moral obligations

In reality, organisations are more likely to be driven to go further to protect employees against harassment and prejudice for cultural and moral reasons. “More employers are approaching the question of equality and diversity very positively as something they want to do because they’re a good business,” Chitty says. “The legal compliance bit is often lower down the food chain.”

Today, a fair approach to people management makes good business sense.

“We put a lot of emphasis on looking after our people, because this gets the best out of people and then we keep our clients; it’s a virtuous circle,” says Rebecca Walker, director of people at communications firm Fishburn Hedges.

Taking a positive and proactive approach to equality has earned Fishburn Hedges a consistently high ranking in the Great Places to Work Institute’s annual UK’s Best Workplaces survey and a special mention in 2010 as a great workplace for women. Around 40% of their board are women, many of them working mothers.

“A big issue is the number of talented women who go off and have a family and then find it very difficult to come back to work,” says Walker. “The talent we’ve got at that senior level of women is critical. You need that talent in the building, so we work very hard to retain returning mothers.”

The backbone of their approach is openness and transparency, she says. “I think there’s a tendency to hide behind these issues and pretend they’re not there. We’re very open about it and address it head on.” 

While the Equality Act makes moves towards coordinating discrimination law, Goddard remains critical that key equal pay measures have been removed. “Rendering the Equality Act virtually toothless undermines every speech Coalition ministers ever gave endorsing the notion of a fairer Britain. The Act isn’t perfect, but the government seems determined to implement it in name only.”