Are You Ready for the Equality Act 2010?
Most of the provisions of the Equality Act 2010 (‘the Act') are due to come into force in October 2010. Many employers are unaware of how the Act will affect their business. The Act consolidates and simplifies existing discrimination law, but also extends protection against discrimination. But does this mean that ‘white men face jobs ban', as feared by the Daily Express in the summer of 2008?
We explain the most important changes and how they may affect your business.
The Protected Characteristics
The Act protects job applicants and employees on the grounds of age, disability, gender re-assignment, marriage and civil partnership, pregnancy and maternity, race, sex, sexual orientation and religion or belief.
Enquiries about health during recruitment
This provision will have the biggest impact of employers and their practices. The Act prohibits employers from making enquiries regarding a job applicant's health or disability before they offer work or include the applicant in a pool of candidates from whom a post will be filled. Exceptions allow employers to ask the questions if necessary to determine whether they need to make reasonable adjustments during the interview or assessment process, to determine whether the candidate can carry out an intrinsic function of the work and to monitor diversity. The aim is to stop employers from sifting disabled employees during the recruitment process. There is no specific guidance on what questions can be asked before an offer is made or as to what is meant by ‘a function intrinsic to the work'. This is more likely to be relevant in a manual job. Enquiries about past conditions or health are unlikely to be allowed as they do not show the applicant's current capabilities.
If you ask the questions and an unsuccessful job applicant brings a claim for discrimination later, it will be difficult for you to defend that claim.
Action - Review application forms and recruitment procedures to determine whether enquiries about health/disability come within the exceptions. Limit the questions to whether an applicant requires adjustments to be made to the interview/assessment process.
Discrimination by Association and Perception
The Act prohibits harassment or discrimination against an employee because he/she is connected with someone protected by the Act (they care for a disabled relative) or because they are mistakenly perceived to be protected under the Act (an employee is harassed because his colleagues think he is homosexual).
Action - employers should review their Equal Opportunities Policies to ensure they reflect the new definitions of discrimination, harassment and victimisation and educate staff and managers regarding the new concepts of discrimination.
Third Party Harassment
An employer will be liable where a third party (a customer or contractor) harasses an employee on the grounds of one of the protected characteristics if:
- the harassment has occurred on at least 2 occasions;
- the employer is aware that the harassment took place; and
- the employer has not taken reasonable steps to prevent the harassment from happening again.
Action - employers may want to consider putting up signs stating that harassment of employees will not be tolerated where employees are public facing, include such statements in client documentation and encourage employees to report incidents of harassment.
Pay Secrecy Clauses
Many feared that pay secrecy clauses were going to be banned. This is not correct. Employers can still have and enforce the clauses; however they cannot take action against an employee who has asked for or disclosed information relating to pay when that employee is trying to determine whether discrimination has taken place. Employers can still prevent disclosure of salary information to competitors and recruitment agents.
Action - seek advice before taking action against an employee who's breached the clause.
New definition of disability discrimination
A disabled employee who is dismissed because of something related to the disability may bring a claim, unless the employer can justify dismissal. For example, a disabled employee who is dismissed for being on disability-related long term sick leave could bring a claim even where the employer would have dismissed a non-disabled employee who had been on sick leave for the same amount of time. The employer would have to show that they were justified in dismissing the employee in the circumstances.
Action - employers should review their practices and avoid taking into account disability-related absence when dismissing employees or selecting for redundancy.
Employment Tribunal Powers
If an employer loses a discrimination claim under the Act, a Tribunal can make recommendations as to what steps the employer should take to reduce the adverse effect of the discrimination on the employee who brought the claim and the wider work force. This could involve recommending re-training staff and managers, reviewing selection criteria for promotion or introducing an equal opportunities policy.
Although the employer does not have to implement the recommendation, if later on other employees bring similar claims of discrimination, the failure to implement the recommendation will be evidence of discrimination.
Much was made by the press about the concept of ‘positive action'. Many thought that if a man and a woman were both up for a job, the employer would have to choose the woman over the man. This is not correct. The Act merely gives the employer an option to choose a job candidate or candidate for promotion from a protected group that it considers is under represented in the employer's organisation, if there are two candidates that are as qualified as each other. There is no obligation to offer the job or promote the employee from the disadvantaged group. No-one knows what ‘as qualified' means and employers should think carefully before taking positive action. There is a significant risk that the unsuccessful candidate could sue the employer.
The Act also proposes the introduction of gender pay reporting for employers with 250 or more employees. This is to show whether there are differences in pay between male and female employees.
The Conservatives indicated during the elections that they would not bring into effect positive action of gender pay reporting. It remains to be seen whether the coalition government will take a different view.
Author: Sandra Martins
Date: July 2010