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Ask the Union

Can you explain how the new Equality Act, which came into force in October, affects me as an employee?

The Equality Act 2010 is largely a consolidation of previous discrimination legislation, including the Sex Discrimination, Race Relations and Disability Discrimination Acts. This means the laws that prohibited discrimination before the new act came into force are still intact. However, there are new provisions that strengthen the law and extend protection to individuals who were previously unprotected.

Disability

Except in certain exceptional circumstances, it is unlawful for a prospective employer to ask you about your health until you have been offered a job, whether conditionally or otherwise. In practice, this means that only the successful applicant should be asked to complete a health questionnaire or provide information regarding their sickness absence record. Schools that take up references prior to interview may have to change this practice, as attendance and health issues are often addressed in references. The NUT recommends that schools change their practice so that references are only sought once a job offer has been made.

You are also now protected from discrimination if you are treated less favourably than other employees because you care for a disabled person. Your employer is not, however, required to make reasonable adjustments to your working time or other terms and conditions. The right to request reasonable adjustments still applies only to individuals with a disability.

Third party harassment

Third party harassment occurs when the perpetrator is not a colleague or manager, but is instead a 'third party' outside the employment relationship. Previously it was unclear how the law applied if pupils or parents subjected teachers to discriminatory bullying and harassment.

The new act has strengthened the law by providing that an employer will be liable for the acts of a third party, where the employer knows that the employee has been subjected to such harassment on two separate occasions and has failed to take 'reasonably practicable' steps to prevent the harassment recurring.

This new 'three strikes' approach should encourage schools and local authorities to take staff complaints of harassment as seriously as they take the complaints of pupils and parents. Schools need to update their policies and procedures to deal with the extension of third party harassment, and communicate these to staff.

Dual discrimination

There is a provision in the Equality Act 2010 that, if confirmed by the Government, will make it unlawful for your employer to treat you less favourably than other employees because of a combination of two protected characteristics. This is a welcome development for older women and minority ethnic women teachers, for example. It means an older woman would no longer face trying to prove that discrimination was on grounds of age or sex, but can instead claim it was either - or both!

Recruitment and promotion

The Government has already confirmed it is introducing provisions that allow employers to treat job applicants with certain protected characteristics more favourably than other applicants who do not have those characteristics - but only where the employer 'reasonably thinks' this will help overcome or minimise disadvantage.

This extends to recruiting or promoting applicants because of their protected characteristics, if they are 'as qualified as' other applicants. This means a governing body could, for example, choose to appoint a minority ethnic teacher to its senior management team in a tie break situation, if it thinks the SMT is currently unrepresentative.

New public sector equality duties

The act also introduces a duty on public bodies to have regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations.

This applies to all protected characteristics, not just race, disability and gender.

Public bodies, including all schools and local authorities, will be required to comply with the broader general duty immediately upon repeal of the existing race, gender and disability duties in April 2011. Until then, they must continue to meet their existing duties in these areas.

Exactly how the duties of the Equality Act will apply to different types and sizes of public bodies (including local authority employers and some governing body employers) will be clarified in guidance to be produced by the Equality and Human Rights Commission early in 2011.

The introduction of the Equality Act will require review and amendment of school policies. If you want advice on doing this, or on any problems at school, please contact your school representative or your local NUT association or division secretary.

Send your questions for the NUT's experts on legal, professional, and health and safety matters to Ask the Union, The Teacher, NUT, Hamilton House, Mabledon Place, London WC1H 9BD or email teacher@nut.org.uk.

Please note that questions relating to personal problems or specific workplace situations should be directed to your school NUT rep or NUT division/association secretary - for contact details visit www.teachers.org.uk/contactus.