The new Equality Act came in on the 1st October 2010, and all learning providers need to be aware of the changes to previous legislation. There aren't endless major changes, but there are some significant ones. The point of this Act is to streamline and combine previous legislation to make things easier for learning providers from now on.

Key changes

• The headings of age, disability (which includes mental health and people diagnosed as clinically obese), race, religion or belief, sex, sexual orientation, gender reassignment (people who are having or who have had a sex change, transvestites and transgender people), marriage and civil partnership, and pregnancy and maternity are now to be known as 'protected characteristics'.
   
  
• There are now seven different types of discrimination:
   
  
  1. Direct discrimination: discrimination because of a protected characteristic.
      
     
  2. Associative discrimination: direct discrimination against someone because they are associated with another person with a protected characteristic. (This includes carers of disabled people and elderly relatives, who can claim they were treated unfairly because of duties that had to carry out at home relating to their care work. It also covers discrimination against someone because, for example, their partner is from another country.)
      
     
  3. Indirect discrimination: when you have a rule or policy that applies to everyone but disadvantages a person with a protected characteristic.
      
     
  4. Harassment: behaviour deemed offensive by the recipient. Learners can claim they find something offensive even when it's not directed at them.
      
     
  5. Harassment by a third party: learning providers are potentially liable for the harassment of staff or learners by people they don't directly employ, such as a WBL employer, a contractor etc.
      
     
  6. Victimisation: discrimination against someone because they made or supported a complaint under Equality Act legislation.
      
     
  7. Discrimination by perception: direct discrimination against someone because others think they have a protected characteristic (even if they don't).
     

Learning providers...

• can no longer ask a prospective employee/learner about their health before offering them work/placement - unless you can prove you're doing so to check whether the employee can carry out an essential task (such as heavy lifting) or to monitor diversity. Learning providers can screen health once they've made a job offer - but then of course they're opening a whole new can of worms if they rescind the job offer on the grounds of a disability, as they are then liable to be taken to tribunal too. 'Health' means physical disabilities and mental health problems. This also means Learning Providers can't ask how much time an employee has taken off work in their previous jobs in an interview.

• can't treat someone unfavourably because of something connected to a disability. An example provided is spelling mistakes because of dyslexia.

Disabled people can now claim a particular rule or requirement disadvantages people with a certain disability.

Learning providers...

• can't discriminate against someone who is or has changed their gender (the 'gender reassignment' protected characteristic) - for example, if they take time off work for the process.

Mothers are allowed to breastfeed in public (on a Learning provider's premises) - they can't be asked to go to a more private place.

• Age is still the only protected characteristic by which you can justify direct discrimination, because you can argue that treating someone differently because of their age is allowed as long as it means you're doing it to meet a legitimate aim. You can also still have a default retirement age of 65 (unless/until the retirement age legislation changes, which it may do in the coming years).

• Tribunal judges can recommend changes to the practice of an entire organisation rather than just to the way an individual is treated.
  
  
• Staff are now free to discuss wages with each other.
   
  
• People making claims can now bring a 'dual discrimination' claim, meaning the tribunal assesses the impact of the two protected characteristics in conjunction ('young Polish') where before they considered each protected characteristic separately ('young' and 'Polish') - which often didn't reveal the full extent of the discrimination, as discrimination on two grounds is often worse than just one. However, only two characteristics can be combined, no more.

The worries for small learning providers

• Risk of an increase in tribunal claims. It will be easier for employees and/or learners to claim they have been discriminated against.
   
  
• More red tape and confusion for managers/directors/governers etc.
   
  
• The most talked-about change is the ban on asking prospective employees about their health/disabilities as part of the interviewing process. Even thought employers can screen their health once an offer of work is made, if they then rescind the offer the candidate then has further grounds for discrimination. While this obviously protects people with physical and mental health problems, it will be cause for concern for many employers who want to know how much time an employee made need off work before employing them, or how their condition could affect their ability to work.
   
  
• The liability of learning providers for 'offence caused by people they don't directly employ', such as WBL Employers, contractors or people visiting their premises, is another big stickler (this is the 'harassment by a third party' rule). It means learning providers could be held responsible if a learner on their premises tells racist jokes. How this liability will work in practice, and how hard the tribunal courts will come down on learning providers stranded by this unfortunate situation (which will often occur through no fault of their own) remains to be seen.
   
  
• The definition of harassment now means an employee/learner who simply overhears an offensive comment, even if it's not directed at them, can hold learning providers legally responsible for it. There is a need to be extra vigilant and make sure everyone understands the rules and implications for the learning provider.
   
  
• Dyslexic workers could claim they have been discriminated against for being barred from carrying out certain tasks because they are prone to spelling mistakes.
   
  
• If learning providers discipline an employee for taking too much sick leave they can claim they're being discriminated against.
  
  
• Carers of disabled or elderly relatives can claim discrimination by association if they feel they've been discriminated against or mistreated in the office because of their home duties. (There are six million carers in the UK.)
   
  
• As employees are now legally entitled to discuss their wages with one another, there will more pressure to pay everyone on fair terms.
   
  
• Dual discrimination will now make those claims stronger than claims that were previously made for only one protected characteristic.

Reactions...

David Frost, director-general of the British Chambers of Commerce:

"At a time when the government is trying to create as many jobs as possible in the private sector this legislation will put people off for fear of getting it wrong. The Equality Act is a very complex bit of legislation. If small businesses get this wrong they end up in an employment tribunal."

Spokesperson for the Institute of Directors (to the Daily Telegraph):

"The health provision is undoubtedly an extra burden on businesses. All business will need to be very clued up on the ramifications of what the new regulations are - if you have a whole HR team that's fine, but a lot of our members are small businesses and they don't have that."

Business owner Daniel Priestly, Triumphant Events:

"While I agree with the act in principle, I think the timing is very poor. Anything at all that makes employing people more risky, more complex or more time consuming should be put on hold until employment numbers are on the rise. It makes more sense to get people employed right now.

"Also this act could have the opposite effect than its intention. For example, people who have a disabled relative are potentially going to find it harder to find a job or promotion if it's known that they are a carer in any capacity."

Resources

• The Equality Act 2010 in full
• The government's Equalities Office page on the Equality Bill, outlining the key changes and points