What employers really need to know about the Equality Act 2010

Dear Aunty

I know that the Equality Act came into force last week, but I have not been able to keep up to speed with the changes it introduced. Please can you summarise the ones most likely to be relevant to HR?

Thanks
Harry Harman

Dear Harry

Certain parts of the Equality Act come into force on 1 October 2010 and apply to both public and private sector employees alike. The Act consolidates the existing separate equality legislation, aligning all protected characteristics and types of discrimination.

So what do employers need to know…

Pre employment health questionnaires

Employers should no longer send out health questionnaires with employment application packs, unless covered under one of the exemptions set out in the Act. Employers can only ask questions relating to health to help:

• decide whether you need to make any reasonable adjustments for the person to the selection process;
• decide whether an applicant can carry out a function that is intrinsic to the job;
• monitor diversity amongst people making applications for jobs;
• take “positive action” to assist disabled people when all the positive action provisions come into force; 
• assure themselves that a candidate has the disability where the job genuinely requires the jobholder to have a disability. 

Questions relating to previous sickness absence count as questions that relate to current health or disability. Once the applicant has been interviewed and has received a conditional or unconditional offer, further health questions can then be asked to ensure the applicant’s health or disability would not prevent them from doing the job.

You should therefore examine current recruitment questionnaires and documentation to ensure that pre-health questionnaires are not used, or if they are, that they are used only in accordance with the permitted exemptions.

Pay secrecy

Employers will not be able to prevent or restrict their employees from discussing their pay with one another insofar as an employee seeks to make a ‘relevant pay disclosure’. This is a disclosure made to find out whether and/or to what extent there is a connection between pay and a protected characteristic. However, an employer can require employees to keep their rates of pay confidential from others outside the workplace, such as competitors.

You should review any existing pay secrecy obligations in contracts or bonus and pay rise letters and consider whether they should be removed or amended.

Equal pay

A change in the Equality Act allows a claim of direct pay discrimination to be made, even if no actual comparator can be found. If a claimant is able to show evidence they would have received better remuneration if they were of the opposite sex, they may have a claim, despite the fact there may be no-one of the opposite sex doing equal work in that firm.

Always make sure you have no notes, emails or correspondence which might suggest that a person’s sex is relevant in determining their pay. Consider training managers to ensure that they understand the consequences.

Harassment by a third party

Under the Equality Act, employers are potentially liable if their staff are harassed by people they don't employ, such as customers or external suppliers. The three strikes rule applies – an employer will only be liable when such harassment has occurred on at least two prior occasions, the employer is aware that it has taken place, and has not taken reasonable steps to prevent such harassment from re-occurring.

Discrimination by association 

The ban on discrimination by association is amended to protect from discrimination spouses, partners, parents and carers who look after a disabled person or older relative. It is unlawful to discriminate against someone as a result of their association with another person who has a protected characteristic, even if they do not have that protected characteristic themselves, or if they are mistakenly believed to have that protected characteristic.

Positive action

Some “positive action” by employers is permitted in connection with under-represented groups e.g. offering access to facilities for training which would help equip them for particular work; or to encourage members of an under-represented group to take advantage of opportunities for doing particular work. An employer can take proportionate measures to overcome a group's disadvantage, or to meet specific needs based on a protected characteristic.

Employment tribunal powers

Under previous legislation a tribunal could recommend that an employer reduce or eliminate the effect of the discrimination on the claimant. Now, tribunals will be able to suggest that employers found guilty of discrimination change their policies and practices to reduce or eliminate the effect of any further discrimination on other employees.

What is not yet in force? 

Not all of the Act has been activated yet. The government is still considering implementation of provisions on some controversial areas:

1. Dual discrimination – The Act provides for direct discrimination because of a combination of two characteristics to be prohibited. However, the relevant provision will not take effect until April 2011 at the earliest.
2. Gender pay reporting – There is a power to require employers with a workforce of 250+ to report on their gender pay gap. This will not come into force until 2013 at the earliest. In the meantime reporting is voluntary.
3. Positive action in recruitment and promotion – Where candidates are equally qualified and equally skilled employers may be able to lawfully select the candidate from an under represented group within their workforce. This should be considered on a case by case basis only and the choice must be objectively justified.