The Equality Act received royal assent on 8 April 2010 and, according to the current Government timetable, the majority of the Act’s provisions should come into force in October 2010. The Act’s stated purpose is to harmonise existing discrimination legislation and to support progress on equality.
Whilst the Act was a key plank in the previous Governments social agenda, it is not clear how much of the Act will remain in place as the new coalition government have expressed concern at some of the Act’s provisions.
As it stands the following are some of the more significant changes the Act will introduce:
Association & Perception
The Act defines discrimination as less favourable treatment because of a protected characteristic: age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex and sexual orientation. It also covers less favourable treatment because of an association with someone with a protected characteristic or an incorrect belief that someone has the protected characteristic. The Act also permit subsequent amendment of the Act to extend race discrimination to include caste discrimination – although there is no suggested date for this.
For example a non-disabled carer of a disabled person could bring a discrimination claim if not permitted by their employer to work flexibly to perform their role as carer. It also extends rights to people who suffer a detriment because they are wrongly perceived to have a protected characteristic. In a recent case a heterosexual man claimed sexual orientation discrimination when he was teased and bullied by colleagues who thought he was gay.
As with all new legislation, it is likely that we will not know the full impact of such clauses until cases start coming through the tribunal.
Clarity around what constitutes a disability
The new Act does provide some clarity on what constitutes a disability, with the following conditions being specifically excluded:
- An addiction, including a dependency on alcohol, nicotine or any other substance, is treated as not amounting to an impairment for the purposes of the Equality Act 2010, although addictions that were originally the result of the administration of medically prescribed drugs or other medical treatment are included.
- Some mental health conditions such as a tendency to set fires, steal, or physically or sexually abuse other persons, or a compulsion toward exhibitionism or voyeurism are not by themselves disabilities under the Equality Act 2010.
- Seasonal allergic rhinitis, better known as hay fever, is also expressly excluded from being treated as an impairment under the Equality Act 2010, except where it aggravates the effect of another condition.
- Tattoos and body piercings are not severe disfigurements that are treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities.
The Equality Act 2010 (Disability) Regulations 2010 also provide that a person is deemed to have a disability if he or she is certified as blind, severely sight impaired, sight impaired or partially sighted by a consultant ophthalmologist.
The Government is consulting on further guidance in this important area.
The Act creates a new claim of combined discrimination under which Claimant’s may bring a claim that they have suffered direct discrimination on grounds of two protected characteristics combined, for example that an individual has been discriminated against on the grounds that she is a disabled woman. While this may make claims more tortuous to defend, we will need to see how tribunals view situations where it is clear a claimant has thrown everything at an employer in the hope that something will stick. This part of the Act does not look as though it will be enacted until April 2011.
Third Party Harassment
The Act extends the liability of employers for harassment of their employees by third parties e.g. clients, customers, suppliers and consultants. The obligation will not be triggered unless the employer knows that the employee has been harassed by a third party in the course of their employment on at least two previous occasions – not necessarily by the same third party – and the employer has not taken reasonably practicable steps to prevent the harassment on that occasion, otherwise known as the “three strikes” provision. So it is clear that when staff raise such issues you should take them seriously.
Pre Employment Health Questions
Employers will be prevented from asking candidates questions about their health that are unrelated to the job role. It will mean that those with mental health issues, medical conditions or a disability will not be forced to disclose their condition prior to an offer of employment unless it hinders their ability to do the job. Where you use a generic questionnaire it should not be used until the job offer stage. We will provide further guidance on this issue once we have confirmation that it will be enacted.
The Act allows employers to take under-representation into account when selecting between two equally qualified candidates for recruitment or promotion as long as it is not a general policy applied in every case and the employer reasonably believes that there is under-representation or disadvantage suffered. As it is voluntary, employees and applicants cannot claim against an employer for not using positive action, but unhappy employees or applicants who were not selected because positive action was used will be able to bring claims on the basis that the test for positive action was not met. If it comes in, the safest course of action would be NOT to use this flexibility. In any event the new Government are looking again at this provision.
Pay secrecy clauses
Clauses which ban employees from discussing their pay will be unenforceable in relation to discussions between an employee and a colleague, or former colleague, the purpose of which is to ascertain whether there is a connection between pay and a protected characteristic (referred to as relevant pay disclosures). Employers who discipline employees for talking about pay may be faced with claims that they have victimised employees, which is prohibited under the Act. Employers will continue to be permitted to have pay clauses in employment contracts which prevent the disclosure of pay information for other purposes, for example disclosure to competitors.
On the face of it this provision could prevent you offering enhanced terms to some staff (such as individually tailored maternity benefits to entice senior staff back to work earlier) and relying on them to keep that confidential. The ‘unintended consequence’ of which could mean companies revert to their base provision – losing the company flexibility and the individual the potential for a customised package.
Pay equality reports
The Act provides for powers to be made (although no date is given) to require private sector employers with 250 or more employees to publish information concerning differences in pay between their male and female employees.
There are differences within the coalition, with the Conservatives wishing only to require employers who are found at Tribunal to have unequal pay practices to disclose the information, whilst the Liberal Democrats would prefer the requirement to be applied to all employers with 100 employees or more.
So what should you do?
We will be reviewing any handbooks and terms and conditions we have supplied for clients, to ensure they meet the new requirements, and we will be in touch with any amendments required.
For clients that we have not provided such documentation, we are offering to undertake a review of your existing documentation for £600 plus VAT. As well as ensuring any existing documents meet the requirements of the Equality Act, the review will ensure you have the following core documentation in place:
- Written Statement of Terms & Conditions (Contract)
- Full time / part time / fixed term contract versions
- Application Form
- Medical Questionnaire
- Offer Letter
- Discipline Policy
- Grievance Policy
- Equal Opportunities / Diversity Policy
- Family Friendly Policies
- Maternity / Paternity / Flexible Working etc.
If you would like to take advantage of this offer, please email us, or ring Barry Rees on 07860 222237
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