A considerable amount of fanfare has greeted the arrival of the Equality Act 2010, with the Daily Mail in the vanguard, splashing its front page with a headline proclaiming the death of the office joke.
All humour is now effectively banned in the workplace, lest it offend one person or group, or in case they are able to take offence on behalf of a relative, friend or someone they know. All journalism aims to provoke an emotional reaction in its readers of course, something this article will signally fail to achieve, since the boring truth is that the Equality Act will make very little difference in practice to the existing law. This is a somewhat shocking disclosure in itself, since lawyers are generally keen to point up the perils and cost of each new piece of legislation, and many powerpoint slides have been consumed in the business of explaining and warning of the changes. Most of this effort has been directed towards teasing out any points of difference, most of which are minor and only of interest to the nerdy employment lawyer.
One such change is the abolition of pre-employment health questionnaires, on the grounds that they discriminate against disabled candidates, who tend not to be called for interview. In fact these questionnaires are still lawful, but in the event of a disability discrimination claim the burden of proof will now switch to the employer to show that the decision was not tainted by discrimination. In practice, this is little different from the present state of the law, and if a candidate with some long-standing health problem (and almost any long-standing health problem generally amounts to a disability for these purposes) applies for a job, discloses their condition and is not selected, the employer is at risk of a claim, and is likely to have the burden of proving their innocence.
The main political aim of the Act, the introduction of a public sector socio-economic duty – effectively to spend money in targeting those in most need – has not been introduced, and no doubt the coalition government could see little difference between spending money in areas of most need and spending money in Labour voting areas.
The other, much-trumpeted aspect has been extra protection for carers, although no such specific rule has been introduced. Instead, the Act simply codifies the existing law, established in the case of Attridge v Coleman, in which Mrs Coleman worked for a law firm (!) who made her working life more difficult after the birth of her disabled son, when she needed more flexibility. She won her claim of disability discrimination even though it was her son, not her, who was disabled. This principle will continue to apply, and may be relied on by those who care for an elderly relative, for example, and therefore need more flexibility at work, but the coalition have promised to extend the right to request flexible working in any event, and the bottom line is that where such requests are made for genuine, family or caring reasons – not just to have a bit of ‘me time’ on a Friday – and where this fits the needs of the business, such requests should be (and generally are) granted. No change there then.
Another recent case whose reasoning has been incorporated into the Act is English v Sanderson Windows, in which the employee complained about the homophobic banter he received, just because he went to public school and lived in Brighton. Mr English was not gay, you see. Things came to a head when it was reported in the works magazine that he had been at a Gay Pride parade in Brighton wearing a pair of pink, lycra cycling shorts. Mr English resigned and claimed discrimination on grounds of sexual orientation, even though he was not gay, they knew he was not gay, he knew they knew etc. It is possible that the Employment Appeal Tribunal was having an off day. That decision was never appealed, but that was the law as at 2008, and the new Act makes very little difference.
Only very anoraky employment lawyers can come up with situations where the Act may change what would have happened anyway. This week, for example, a man lost his claim under the sex discrimination act, who was arguing that he was dismissed because his partner was pregnant, rather like Mrs Coleman and her claim of discrimination by association.
The Employment Appeal Tribunal looked at the wording of the Sex Discrimination Act, which talks about discrimination against ‘a woman’ on the ground of ‘the woman’s pregnancy’, and decided that this was a step too far. Will this now change? Will there be a rush of men claiming discrimination because they are having a hard time at work when they come in bleary eyed after the midnight bottle feeds? The Appeal Tribunal said that it was “not entirely clear” what the position would be under the new Act, and this could be a very good summary of the whole Act. It is not entirely clear what difference it will make.