The Gude Top Ten: We're about to be even more equal than before

The Equality Act 2010 consolidates previous anti-bullying legislation and introduces new anti-discrimination measures

Andrew Brown, a senior solicitor in the employment unit at Anderson Strathern, offers a top ten guide to issues to watch out for under the changes.

1. Understand discrimination law

The Act makes it unlawful to discriminate against somebody because of a "protected characteristic", such as age; disability; marriage/civil partnership status; race; religion or belief; sex; sexual orientation; and pregnancy/maternity leave.

Employees are also protected from being discriminated against because of their association with, say, a boyfriend from a minority ethnic background or because their friends are older.

2. Once is enough

One misjudged comment is enough to constitute harassment, entitling victims to bring a claim, and potentially landing the perpetrators (and their employers) in deep water.

3. Avoid risqu banter

To constitute harassment the conduct must have the "purpose or effect" of violating somebody's dignity or creating a hostile environment. Even well-intentioned banter should be avoided.

4. Harassment by third parties

Employers will be liable for harassment by people outwith their organisation (such as clients) where they are aware that an employee has been harassed on two previous occasions.

The old adage that "client is king" might need to be reviewed as employers are forced to tackle harassment by third parties. Misguided employees who believe that the good-looking accountant who visits the office to audit their books is "fair game" should think again!

5. Employee liability

Workers should be aware that, even where their employer has issued instructions to discriminate (e.g. not to promote somebody because they are too young) the employee can still be personally liable.

Employers can be held vicariously liable for an employee's discriminatory acts - whether or not the employer has sanctioned those acts.

6. Potential outcomes

Claims can attract unlimited compensation and include compensation for the injury to an individual's feelings.Perpetrators can expect to be subject to disciplinary proceedings and most disciplinary policies will include discrimination as gross misconduct, for which the sanction may be dismissal.

7. Employer policies

Employers should have clear guidelines for employees that make clear what is not acceptable and employees, particularly managers, should familiarise themselves with these.

Any employee who feels that he or she is being discriminated against or harassed should raise this in accordance with their employer's procedures.

8. Disabled applicant claims

With few exceptions, where an employer has asked an individual to complete a pre-employment health questionnaire, the onus will shift to the employer to show that their reason for not recruiting an individual was unrelated to that person's disability.

9. Job adverts

Older individuals should not be put off applying for posts calling for a "dynamic young professional" or younger individuals by adverts seeking individuals with "10 years' or more experience". However, such wording may suggest discrimination on grounds of age and applicants should consider bringing a discrimination claim if they are not selected.

10. Act early

Where an employee believes that they may have been discriminated against they should bring their claim within three months of the act complained of, or within three months of the last act in a series.

Pro-active managers who have developed robust policies and trained staff in those policies may be able to defend claims if a rogue employee steps out of line, by showing that they have taken reasonable steps to avoid discrimination occurring.

Discrimination

The Gude Top Ten: We're about to be even more equal than before - but beware the pitfalls