Equality Act 2010: forewarned is forearmed
Business & entrepreneurs
Schillings news | 1 June 2010
The Equality Act 2010 (‘the Act’) will be brought into force in October 2010. The Act was introduced to harmonise discrimination law and to strengthen it. It brings together nine existing major pieces of discrimination legislation into a single act and creates a number of new rights and remedies to protect employees from discrimination.
Discrimination laws cover all areas of employment including job adverts, job interviews, conduct during employment, social events at work, dismissal and giving job references. A business must not discriminate against or harass employees on the basis of: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex or sexual orientation.
This article aims to highlight the key changes to discrimination law that the Act will introduce. It also provides some practical steps for businesses to take before the Act comes into force.
Pre-employment health enquiries
In order to reduce the discrimination faced by disabled job applicants, the Act specifically deals with the inclusion of questions about disability and health as part of the recruitment process. Many businesses undertake pre-employment health enquiries, often through questionnaires. However, under the Act employers will not be able to ask pre-employment health questions of a job applicant other than in certain limited circumstances, such as, to establish whether the applicant would be able to carry out a function that is intrinsic to the work concerned.
The job applicant has no individual claim against the prospective employer on the ground only that they have been asked about their health during a recruitment process. That said, the Act makes it easier for the applicant to bring a claim for disability discrimination against the prospective employer where they can show that they failed to secure employment having been asked in the recruitment process about their health. In such a scenario, except in very limited circumstances, the onus will be on the prospective employer to show there was a non-discriminatory explanation for the applicant's failure to secure an offer of employment.
The employer should give serious consideration and seek advice as to the circumstances in which it may be appropriate to make enquiries about health during the recruitment process.
Pay transparency
The Act seeks to create transparency over the payment of employees through two main avenues:
-
Secrecy clauses - many employment contracts include secrecy clauses which require employees to keep details of their pay a secret and also prevent them discussing their pay with their colleagues. Secrecy clauses will not be banned under the Act but they will be unenforceable against employees involved in a “relevant pay disclosure” – this is where, for example, a female employee has a discussion with a male colleague seeking to establish whether there is a difference in their pay and, therefore, whether there may have been pay discrimination. Crucially, victimising an employee for making or seeking a disclosure such as this will be unlawful under the Act. Therefore, it is worth conducting a review of employees’ salaries in order to check the male to female ratio.
-
Publishing of statistics - undertaking a review of employees’ salaries will be particularly relevant to public employers as under the Act, they may be requiredto publish gender pay gap information and ethnic minority and government statistics from April 2011. In addition, there will be a requirement for private sector employers with more than 250 staff to report on the pay gap between male and female employees. The Government has made a commitment not to use these before 2013 and only then if insufficient progress has been made on voluntary reporting in the meantime.
Harassment
The Act makes changes to laws governing harassment. Harassment occurs when an individual engages in unwanted conduct that has the purpose or effect of violating another individual’s dignity or creates a hostile, degrading, humiliating or offensive environment for that individual.
Employers will be made vicariously liable, in some circumstances, for the harassment of an employee by a third party in the workplace. This could occur where an employer failed to take reasonable steps to prevent an employee being harassed by a client, despite knowing that the same type of harassment had occurred at least twice before. As a practical step, any complaints must be carefully logged and monitored and if necessary acted upon.
The definition of harassment will be widened by the Act to include harassment based on perception or association (for example, a person who is harassed because they are wrongly perceived to be gay, would have a claim). Therefore, it would be wise to carefully log and complaints, be aware of office ‘banter’ and also regularly monitor company message boards.
Employment tribunals
The Act introduces changes to the powers of Employment Tribunals. If a business is involved in litigation in the Employment Tribunal, it may now make recommendations which benefit the wider workforce not just an employee or job applicant in a successful discrimination claim. Such recommendations could include that selection criteria for staff transfers or promotion are made public.
Forewarned is forearmed
In preparation for the Act coming into force, employers should review any existing policies and procedures that the business has on discrimination and harassment and decide whether they should be updated. As an employer, you need to be sure that the HR processes you use are fully non-discriminatory; not just for race, gender and disability. And you should be aware that the Bill will make it possible to bring discrimination claims for experiencing two types of direct discrimination at one time.
In addition, employers should make sure that all directors and managers within the business are aware of the changes. Training should be considered where necessary.
Finally, it is wise to keep track of any relevant new statutory codes of practice that are issued by the Equality and Human Rights Commission.
