An Employer’s Guide to the Equality Act

What is the Equality Act?

The Equality Act came into force in 2010. It ensures consistency in what employers and employees need to do to make their workplaces a fair environment for everyone.

What the Act covers:

The Act covers all aspects of equality in the workplace, including:

  • disability
  • gender
  • race
  • sexual orientation
  • marriage
  • religion or belief
  • age
  • pregnancy
The Equality Act protects employees from discrimination, harassment and victimisation because of any of these aspects. This is most commonly manifested as favouring one employee over another due to a bias-related to any of the above characteristics.

Positive Action

An employer can take ‘positive action’ to help employees or job applicants it thinks:

  • are at a disadvantage because of a protected characteristic and/or
  • are under-represented in the organisation, or whose participation in the organisation is disproportionately low, because of a protected characteristic and/or
  • have specific needs connected to a protected characteristic

An employer must be able to show evidence that any positive action is reasonably considered and will not discriminate against others.

Justifiable Discrimination

There are limited circumstances where an employer may act in a way which is discriminatory if they can objectively justify discrimination as what the law terms ‘a proportionate means of achieving a legitimate aim’. Employers should note that this can be a difficult process.

Read the Equality Act in full.

What does discrimination look like?

The Equality Act describes four types of discrimination: direct, discrimination by association, discrimination by perception, and victimisation.

 

Direct discrimination

You must not treat a job applicant worse than another job applicant because of a protected characteristic.

For example:

  • You refuse to interview a job applicant because of their sexual orientation.
  • Your job ad says ‘this job is unsuitable for disabled people’.
  • Refusal to consider a visually impaired person because you are nervous of their dog.

 

Discrimination by association

You must not be biased against a job applicant because they are associated with a person who has a protected characteristic.

For example:

  • You refuse to hire someone because the applicant has said they have a disabled partner.

Discrimination by perception

You must not withhold benefits and bonuses from employees because you incorrectly think they have a protected characteristic.

For example:

  • You don’t give an employee their end of year bonus because you incorrectly think the applicant is transgender.

You serve your business best by hiring the best person for the job, regardless of any protected characteristics.

 

Victimisation

You must not victimise an employee because they have complained about discrimination or helped someone else complain. Everyone has the right to uphold the laws and defend their equality.

For example:

  • A worker who complains unsuccessfully but in good faith of sexual harassment by their manager is disregarded for promotion.

Implications for recruitment

During recruitment, you must make sure that any potential hires have equal access to everything that is involved in applying and getting to the interview.

If an applicant asks for information about the job and the application form in an alternative format due to a disability, you must provide it.

When you assess a disabled job applicant’s suitability for the job, you must take account of any reasonable adjustments needed to enable them to do the job.

During the interview and consideration process, you cannot hold protected characteristics against potential hires.

 

Actions for Employers

  • Regularly review policies and decisions to ensure equality
  • Ensure decision-makers have equality training
  • Develop a culture of fairness
  • Encourage communication to ensure no indirect discrimination
  • Set out clear guidelines for equality and disciplinary for infractions

Training and development

You must not discriminate against people with protected characteristics when considering training needs, training opportunities or promotions.

For example:

  • Not offering a promotion to a pregnant woman
  • Offering exclusive training to people who are older

When offering training, make sure it is accessible to everyone. This includes staff on maternity/paternity leave and disabled staff if the training takes place off-site.

Make sure you don’t make assumptions about who gets training opportunities. Think about what your needs are in terms of the skills and knowledge of your workforce, not people’s protected characteristics.

Work with your staff through your HR teams. Have regular 1-2-1s to determine who needs to know what and what sort of training each person needs.

Advertising promotions & opportunities

Advertise training and other development opportunities as widely as possible throughout the organisation, and in a way which is accessible to everyone.

To avoid unlawful discrimination, you should tell women about promotion opportunities when they are on maternity leave, and give them the opportunity to apply for any promotion they would have been told about had they been present at work.

If you are in a larger organisation, make sure that all decision-makers understand how to do their jobs without discriminating unlawfully because of a protected characteristic.

 

Actions for Employees

  • Be vigilant and vocal about discrimination
  • Understand your rights
  • Don’t be afraid to ask for information regarding failed applications or loss of bonus
  • Hold your employer to account
  • Remember that respect goes both ways

The Equality Act and payroll

While you cannot pay staff differently due to their protected characteristics, there are some clearly defined exceptions. These are:

  • Young workers
  • The difference in pay & benefits due to length of service
  • Marriage & civil partnership

Young workers

If you employ young workers aged between 16 and 21, you can base your pay structures for them on the age bands set out in the National Minimum Wage and National Living Wage rates.

These regulations set the minimum wages entitled to employees, based on their age, up to 25.

The rates for 2019/2020 are:

These rates are for the National Living Wage and the National Minimum Wage. The rates change every April.

Year25 and over21 to 2418 to 20Under 18Apprentice
April 2019£8.21£7.70£6.15£4.35£3.90

 

Length of service

You may be allowed to give workers different pay and benefits based on how long they have worked for you. Under normal circumstances, this counts as indirect discrimination due to age.

But, for a length of service of up to five years, you do not have to justify differences at all. Length of service can be worked out in one of two ways:

  1. The length of time someone has been working for you at or above a particular level
  2. The length of time someone has been working for you in total

 

What to do when you are discriminated against at work

Seek advice from:

  • Trade unions
  • Citizen’s advice centres
  • Internal grievance procedures
  • ACAS (the Advisory, Conciliation and Arbitration Service)
  • Your boss
  • Your HR department

Trigger your company’s grievance procedure.

If nothing changes, you can take your case to an employment tribunal, especially if it forced you out of a job.

Equal pay

Men and women in full-time or part-time employment have a right to equal pay. In law, this means that men or women are given no less favourable:

  • pay;
  • benefits;
  • terms and conditions;

in their employment contracts where they are doing equal work.

For example:

  • A female sales manager is entitled to an annual bonus calculated by a specified number of sales. She discovers that a male sales manager working in the same office receives a higher bonus under his contract for the same number of sales.

How is equal work defined?

According to the Equal Pay Code, equal work is defined as work that is:

  1. The same or broadly similar (provided that any differences are not of practical importance)
  2. Different, but is rated under the same job evaluation scheme as work of equal value
  3. Different, but equally valuable in terms of effort, skills and decision-making

 

What to do when an employee claims to have been discriminated against

Listen to the complaint with an open mind.

Log all details accurately.

Establish a paper trail of the complaint and its resolution.

Decide whether to resolve the complaint formally or informally.

Investigate the complaint.

If there has been unlawful discrimination:

  • Provide equality training
  • Undertake disciplinary action

If there has been no unlawful discrimination:

  • Work to maintain staff unity
  • Ensure there is no victimisation towards the complainant

Pension schemes

Pension schemes are also subject to the equal pay for equal work principle. Most schemes are trust-based. The scheme is legally separate from the employer and is administered by trustees. The trustees are legally bound to implement equal treatment between women and men.

Gender Pay Reporting

Under gender pay reporting rules, businesses larger than 250 employees must provide gender pay gap reports. They must be publically disclosed and made available to staff.

Reporting includes a range of remuneration, including the mean and median pay gap figures, but there are some exceptions. You don’t need to report:

  • Overtime pay
  • Expenses
  • Salary-sacrifice schemes
  • Redundancy pay
  • Benefits in kind
  • Pay in arrears
  • Pay for a different pay period
  • Tax credits

Bonus payments made over a 12-month period are featured in a separate analysis. Bonus pay includes profit-sharing schemes, performance bonuses, incentive pay and commission. This data is reported in the same manner as normal pay reporting.

When employees leave

When it comes to dismissal and redundancies, you need to make sure that you are not unlawfully discriminating.

Make sure that your disciplinary procedures are not unlawfully discriminating. This will help ensure that no one is dismissed for discriminating reasons.

Dismissing disabled employees

There are extra steps you need to take before you dismiss a disabled person. You may be discriminating directly or indirectly.

You must not treat a disabled person unfavourably because of something connected to their disability where you cannot show that what you are doing is objectively justified.

If a worker is a disabled person, you must make reasonable adjustments as needed to remove barriers the person faces in doing their job. Would a reasonable adjustment remove the reason you are considering dismissing that worker?

After they have left

You must not discriminate against, harass or victimise a person after your employment relationship with them ends. This extends to any length of that relationship, from interviewees to staff who have worked for you for 20 years.

For example:

  • A job applicant complains that you treated them worse than others in an interview because of their ethnic background. In response, you sabotage their future opportunities by telling another employer to overlook them for a job.

Equality in the workplace

The Equality Act lays out the standard by which all businesses must maintain. However, the responsibility is on all of your staff to promote a work culture of equality.

Promoting equality within your business goes further than respecting workers’ rights to fair treatment. There is also a strong business case for making sure your company offers equal opportunities for all;

  1. Staff feel valued
  2. Businesses see an increase in competitiveness
  3. An enhanced corporate reputation

Research shows that people enjoy working for organisations with good employment practices; you attract and retain better talent when you champion equality. Your employees feel valued and are more productive. Equality and diversity are increasingly seen as an indicator of good corporate social responsibility. Consumers trust your brand more and are more likely to engage with you.

A diverse workforce may be more in touch with the needs of diverse community groups. Having an equal and diverse team could put you in a better position to capitalise on new market opportunities. Plus, studies show that having a diverse gender split in your business can increase revenue by 41%.

The benefits of promoting equality in the workplace are many, so the message is clear: businesses need to do more than pay lip-service to the Equality Act. They need to promote a culture that is transparent and equal in all aspects.