The Equality Act 2010 came into force on 1 October 2010. Prior to this equalities law was spread out across over 100 pieces of legislation. The Equality Act brought together this previously existing equalities legislation into a single act, simplifying and strengthening equalities law.
The Equality Act covers the protected characteristics of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. It sets out that discrimination against people who share protected characteristics is unlawful, including in employment and other areas of work; education; housing; the provision of services, the exercise of public functions and membership of associations.
Gender and employment
There are two types of discrimination which can occur in employment, direct discrimination and indirect discrimination. An employer must not treat someone unfavourably because of a protected characteristic, this is direct discrimination. An employer must not do something which has or would have a worse impact on people who share a particular protected characteristic, than on people who do not have that characteristic, this is indirect discrimination.
The Equality Act also covers harassment and victimisation in the workplace.
The provisions of the Equality Act relating to equal pay set out that an individual can claim equal pay when she or he, when compared with a comparator of the opposite sex, is employed in:
- Like work: Which means work that is the same or broadly similar, regardless of whether the job title is the same.
- Work rated as equivalent: Which means work that has been rated as equivalent under a job evaluation scheme.
- Work of equal value: Which means work that requires the same levels of effort, skill, knowledge and responsibility.
The Act also covers a number of circumstances not specified in previous equal pay law. It includes a new term which suggests that pay protection schemes are capable of being lawful. Sub-section 69(3) of the Act states that the long-term aim of reducing inequality between men’s and women’s pay is always to be regarded as a legitimate aim for the purposes of justifying pay practices that indirectly discriminate against women. Therefore, short-term pay protection schemes introduced with the aim of removing long-term inequalities in pay may be capable of being objectively justified, provided that their use is a proportionate way of achieving that aim.Pay secrecy clauses, despite claims to the contrary in the press, are not banned outright. Instead they will be 'unenforceable' if an employee has made a 'relevant' pay disclosure for the purposes of identifying a relationship between having (or not having) a protected characteristic, and pay.
The Act provides for secondary legislation to require companies in the private sector, with more than 250 employees, to publish information on their pay gap and the reasons for it. At the time of writing the UK Government plans to enact this part of the legislation in 2018, and is in consultation on regulations for reporting on pay and bonuses.
Pay modernisation programmes in local government and the NHS have given rise to thousands of equal pay cases over the last decade, many of which are still ongoing, and equal pay case law is developing all the time. Employers, and individuals who believe that they have a claim, should seek specialist advice on their specific circumstances.
In this section …
Everything you wanted to know about the gender pay gap but were afraid to ask This briefing aims to answer the most commonly asked questions about the pay gap.
Joint response to the Scottish Parliament Economy, Jobs and Fair Work Committee inquiry report into the gender pay gap Gender equality organisations Close the Gap, Engender, Equate Scotland, Scottish Women’s Aid and Zero Tolerance welcome the report of the Scottish Parliament Economy, Jobs and Fair Work Committee inquiry into the gender pay gap, and call for action.
The socio-economic duty consultation: Equality sector response, September 2017 A response from a coalition of national equalities organisations, including Close the Gap, to the Scottish Government’s proposals for the socio-economic duty.
What equality law means for you as an employer: pay and benefits This guidance from the EHRC sets out ways that employers can avoid all the different types of unlawful discrimination with regard to basic pay, non-discretionary bonuses, overtime rates and allowances, performance-related benefits, severance and redundancy pay, access to pension schemes, hours of work, company cars, sick pay, and 'fringe benefits' such as travel allowances.