Michael Slade, managing director of employment specialists, Bibby Consulting & Support (previously mhl support) explains how the Equality Act may affect employers.
1 October 2010 saw the implementation of the Equality Act 2010. This is both an important and extensive review in the area of discrimination and equality.
Periodically, employment law is codified and made into a single piece of law and this latest development has been no exception. However, in addition to consolidating, the Act has also brought in new provisions and concepts which many businesses are still unaware of.
The protected characteristics
Discrimination is made unlawful where it occurs because of protected characteristics. These have not been changed by the Act and so still cover:
- Age
- Disability
- Gender reassignment
- Marriage and civil partnership
- Pregnancy and maternity
- Race
- Religion or belief
- Sex and
- Sexual orientation
Discrimination by association
This is a new form of discrimination, which is now given statutory backing. A person may now be eligible to bring a claim even though they themselves do not possess the protected characteristic, but they are associated to someone who does. As such, cases like Coleman v Attridge Law now has a statutory backing in domestic law under this new legislation. This case concerned a claimant who was discriminated against not because she was disabled, but because her son was. Associative discrimination will apply to almost every protected characteristic.
Discrimination based on perception
The legislation now also provides for claims to be brought based on perceived protected characteristics even if the claimant does not actually have those characteristics. Take for example an employer who refuses to recruit a job applicant wrongly thinking the candidate looks as if they are homosexual. Even though the candidate is actually heterosexual, they are still afforded protection based on their wrongly perceived sexuality.
Health questionnaires
Many employers currently use pre-employment health questionnaires or have health questions which form part of their standard application form. However, such questions are likely to become a thing of the past as it is now unlawful for employers to ask questions about an applicant’s health during the recruitment process, unless there is an applicable exception.
Contravention of this rule can leave employers exposed to a fine of up to £5,000 along with inferences of disability discrimination.
Employers are advised to review their recruitment practices where these involve questions about the applicant’s health in view of the new provisions now introduced.
Pay secrecy clauses and discussions about pay
Some employers have what are commonly known as pay secrecy clauses in their contractual documentation that require employees to keep their pay details confidential. However, such clauses are now void and unenforceable.
In addition, employees can now make "relevant pay disclosures" with their colleagues. This is that they can request from and disclose details about their own pay. If employees are then dismissed or otherwise subjected to any other detriment because of making a relevant pay disclosure, this will be an act of victimisation and enforceable at a tribunal.
Pay publishing
Employers with 250 or more employees may also see a duty imposed requiring them to publish information relating to how much each individual staff member gets paid. This particular concept is allowed for in the Equality Act 2010, although it is not yet clear whether the option will be taken up, if it is, it will not be expected until 2013.
Positive action
The Equality Act 2010 will introduce increased provision for employers to embark on positive action that is treating a person more favourably because of a protected characteristic when choosing between applicants for recruitment or promotion. It allows an employer to positively discriminate between two as qualified candidates where the employer reasonably thinks that either of those applicants suffer a disadvantage connected to any particular protected characteristic or where participation within the organisation by persons who share a particular protected characteristic is disproportionately low. However, employers should be aware that this was not introduced on 1 October 2010 with the other provisions and it will instead be introduced later.
If you are interested in obtaining further advice about the Equality Act 2010 and its effect on your business, including a free guide available to all employers, please call Bibby Consulting & Support on 0800 015 7541.
2 Responses
Definition of job applicant?
Does anyone have a view on whether “job applicant” might be considered not only to be the external candidate for a vacancy, but also an internal candidate – particularly in relation to a post which is only advertised internally? Specifically, could a section on an internal vacancy application form which asks the candidate to identify the number of days sick absence they have incurred over, say, the past 12 months be deemed to be covered by the Act?
Pre-placement health assessments
Re"pre-employment health questionnaires or have health questions which form part of their standard application form. However, such questions are likely to become a thing of the past as it is now unlawful for employers to ask questions about an applicant’s health during the recruitment process",
Employers can still ask questions after a conditional job offer has been made, if the questions relate to essential health requirements for the job, or in order to make adjustments to the job or adress material (not constructed) foreseeable risks to health & safety of the applicant, their work colleagues or 3rd parties and members of the public.
The Equality Act does not permit the asking of health questions before conditional job offer has been made, apart for enquiries into adjustments in relation to attending interview.
No need to throw the baby out with the bathwater if there a ‘proportionate means to a legitimate aim’ basis for asking or carrying out further indepth assessment.
For instance in the NHS there are specific health requirements and infectious disease screening that’s required to ensure healthcare workers are not a risk to their patients.