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Employment Law > Workplace Discrimination > The Equality Act 2010 - Key Changes

The Equality Act 2010 - Key Changes

Employment Solicitor Martin Malone considers some of the key changes brought in by The Equality Act 2010.

Positive action

The Equality Act 2010 allows employers to take positive action if they believe that job applicants or employees with a particular protected characteristic suffer a disadvantage linked to that characteristic, or if their participation in an activity is disproportionately low. Positive action is voluntary and therefore employers do not have to take positive action.


Pre-employment health-related checks

The Act limits the circumstances in which an employer is able to ask health-related questions prior to offering an individual a job. At this stage an employer is only allowed to ask health-related questions in certain circumstances in order to help him:


  • Ascertain whether any reasonable adjustments need to be made for the recruitment process;

  • Ascertain whether an applicant can take part in an assessment as part of the recruitment process;

  • Decide whether an applicant can carry out a task which is intrinsic or absolutely fundamental to the job;

  • Monitor diversity among applicants;

  • Carry out a positive action to assist disabled people, such as improving disabled people's employment rates;

  • Ascertain that the applicant has a specific impairment that is a genuine occupational requirement for a particular job;

  • Ask questions relating to a requirement to vet applicants for the purposes of national security.

Once the employer has offered the applicant a job they are permitted to ask appropriate health-related questions, regardless of whether the offer they have made is conditional or unconditional.


Extension of employment tribunal powers

The Act has now extended the tribunal's powers so that it is now possible for a tribunal to make recommendations that an organisation takes steps to eliminate or reduce the effect of discrimination on other employees, not just the claimant as previous law allowed. For example, the tribunal might order that an employer needs to train all staff about victimisation and harassment.


Sex discrimination and equal pay

As with the previous legislation, in most circumstances a challenge by an employee to pay inequality still has to be made by comparison to a real person of the opposite sex in the same employment.


However, a change in the Act now allows a claim to be made for direct pay discrimination even if there is no real person to make a comparison with. Therefore an employee may have a claim under direct sex discrimination where they can provide evidence that if they were a different sex they would have received better pay from their employer.


Pay secrecy

The Act now makes it unlawful for an employer to prevent or restrict its employees from discussing their pay in order to establish if difference in remuneration exists and is related to a protected characteristic. The Act also makes terms of the contract of employment relating to pay secrecy unenforceable.


An employer can however, require their employees to keep pay rates confidential from some people outside the place of work, such as a competitor.


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