Equalities Act 2010 - how does this affect Care Homes?

The Equality Act 2010 (“the Act”) received Royal Assent on 08 April 2010 and will come into force in the Autumn. The Act has been a controversial one and with our new coalition Government it is likely changes will be made.

The Act is a product of the Government Equalities Office with the main aim of harmonisation of discrimination law under one heading and will replace the earlier existing legislation relating to discrimination. It will cover discrimination in relation to age, sex, disability, sexual orientation, race, religion or belief, marriage and civil partnership, pregnancy and maternity and gender assignment. These are known as the protected characteristics. It has 218 sections and 28 schedules. The bulk of the Act will come into force on 01 October 2010 with some areas being delayed to allow organisations in both public and private sectors to prepare for its implementation.

What however do Care Home owners need to be aware of? The two areas of greatest impact are likely to be employment and the provision of services to the public.

Employment legislation:

Much of the previous employment legislation is encompassed into the new Act. However there are a few important employment issues of which note should be taken and these are: 1) Discrimination by association is outlawed across all protected characteristics. For example a carer of a disabled person or an elderly relative will receive protection from discrimination due to their close link to the individual with the protected characteristic such as disability or age. 2) Any discrimination arising from a disability will be unlawful. Therefore if an individual knowingly treats a disabled person in a particular way which amounts to a detriment this will be discrimination unless the treatment can be justified. For example treating a disabled person less favourably because of their need to take disability related absence. 3) The Act will prevent employers asking job applicants questions about their health and whether they have a disability. However, employers will be able to ask questions aimed at addressing reasonable adjustments or to check that the applicant can fulfil a function that is intrinsic to the work concerned. Employers will also still be able to screen applicants about health after making a job offer. 4) There is a ban on discrimination based on perception. This will protect employees who experience discrimination because they are wrongly thought to have a protected characteristic. For example if a man were thought to be gay and was treated less favourably because of this perception but turned out to be heterosexual they would be protected. 5) Employees will be able bring a claim based on a combination of characteristics. This is called dual discrimination. However to be successful the claimant must show the discrimination was a result of the combination and they will not succeed where there is an exception or justification that applies to the treatment in respect of one of the elements. For example an Asian woman who is discriminated against because of both her race and sex will be able to combine the characteristics. 6) Employers at present will be permitted to take positive steps or action in the recruitment process. Employers will be able to choose a candidate from an under represented group in their workforce when they have the choice between two candidates who are equally suitable. However this is something the current Government is unlikely to bring into force so watch this space. 7) Employers with 250 employees or more will be encouraged on a voluntary basis to publish their pay statistics to show the gender pay gap (if any). This could become a compulsory requirement by 2013 but only if the Government feels that insufficient progress on reporting in this area has been made. This is also another controversial proposal which is unlikely under the current Government to be brought into force. However as the matter was not going to be compulsory until 2013 it is likely this will be left alone for the moment. 8) The Act will ban secrecy clauses in contracts of employment which means that employees will be able to openly discuss their wages with colleagues. 9) The Act also extends protection against third party harassment to all protected characteristics (save for pregnancy, maternity and marriage/civil partnerships) where the employer has failed to take such steps as would have been reasonably practicable to prevent the harassment.

Provision of Services The new legislation will make it unlawful to discriminate against, harass or victimize a person when providing a service or when exercising a public function. The service provider must not discriminate against a person requiring the service by not providing it nor must they discriminate against a person during the course of providing the service. The only protected characteristics that do not benefit from the protection are marriage/civil partnership and age so far as the person has not attained the age of 18.

The Act also imposes the duty to make reasonable adjustments in relation to the provision of services and exercising public functions. The prohibition on harassment when providing services or exercising public functions does not cover sexual orientation or religion or belief which mirrors existing law. The practical effect is to extend current protection so that it is generally uniform in respect of the protected characteristics.