Implications Of The Equality Act 2010 For Charities

Introduction

Branded "the death of the office joke" by the Daily Mail, the Equality Act 2010 (the "Act") was implemented on 1 October 2010 to consolidate into one Act previous discrimination legislation and enshrine additional principles regarding discriminatory behaviour that have developed through case law. The Act addresses discrimination on the grounds of the following 9 "protected characteristics":

Age; Disability; Gender reassignment; Marriage and civil partnership; Pregnancy and maternity; Race; Religion or belief; Sex; and Sexual orientation. The Act renders it unlawful to discriminate against an individual on the basis of a protected characteristic in relation to several areas, including employment and the provision of goods and services. As many charities focus their operations on a specific group of people (for example, the elderly or disabled) and there is no limit on the amount of compensation that can be awarded in discrimination claims brought in the Employment Tribunal, it is essential that charities operate in compliance with the Act.

Charities can benefit from an exemption which permits them to limit those who benefit from their operation on the grounds of a protected characteristic. However, an individual's human rights are important and therefore any discriminatory infringement must be both justified and proportionate.

Pre-employment health questions

Pre-employment health enquiries are thought to be one of the main reasons that many disabled job applicants often fail to reach the interview stage. It is now unlawful to ask job applicants about their health before they have been offered a position, unless one of the exceptions in the Act applies. These exceptions include circumstances where the questions are necessary to establish whether the applicant is able to "carry out a function that is intrinsic to the work concerned". Employers should consider carefully whether any such questions are necessary (for example, where a job involves the manual lifting and handling of heavy items) and should certainly refrain from enquiring about a job applicant's sickness absence record.

Types of discrimination

Indirect discrimination

Indirect discrimination occurs where a provision, criterion or practice ("PCP") is not intended to treat anyone less favourably but nevertheless has the effect of putting people with a protected characteristic at a disadvantage. An employer can objectively justify the PCP, provided that it is a...