The Equality Act is here - and may take some employers by surprise, says law firm Beachcroft LLP
More than five years in the making, the Equality Act will finally come into force on Friday 1 October 2010. It will impact all UK employers, regardless of size, and apply across both the public and private sectors.
Rachel Dineley, employment partner and head of the Diversity and Discrimination Unit at law firm Beachcroft LLP said: 'The new Act has been a long time coming. Its fundamental purpose is to bring together all existing discrimination protection into a single Act, with a view to ensuring consistency and clarity over how employees and job applicants are protected against incidents of discrimination in the workplace.
'This aspect of the Act will be welcomed by employees and employers alike as the new single set of rules should in theory be easier to understand and apply in practice.
'However, in some respects the new Act also goes a lot further. Its secondary purpose is to strengthen discrimination law and to promote equality in the workplace; it includes a number of measures designed to meet this objective which may take some employers by surprise. For example, the Act for the first time introduces restrictions on asking job applicants about the state of their health during the recruitment process.
The protection afforded to disabled applicants and employees in the workplace has also been subtly but significantly strengthened through revisions included in the Act, which will arguably result in a greater number of these claims succeeding.
'On the enforcement side, the Employment Tribunals have been granted broader powers to make recommendations in relation to an employer’s practices and procedures in the event of a successful claim. The net result of these measures is to create traps for the unwary, and employers should take the opportunity to audit their current practices now to minimise their risks in this area.
'With some many organisations undertaking some form of restructuring, the scope for expensive errors will increase. Ironically, employers could incur, rather than save, costs if they are not compliant with the new law.
'That being said, the coalition government has taken the conscious decision to hold back and reconsider a handful of the most controversial provisions included in the Act, for example relating to employers taking 'positive action' on recruitment and promotion to address inequalities in the make up of the workforce. These may yet see the light of day, albeit with substantial modifications'.
Khurram Shamsee, employment partner and fellow discrimination specialist at Beachcroft LLP added: 'Gender pay has been a hot topic in recent years and the Equality Act includes a number of measures aimed at tackling this issue. For example, the Act seeks to encourage pay transparency by restricting the circumstances in which an employer can discipline an employee for disclosing salary and other pay details to their colleagues.
'There has also been some tinkering with the equal pay provisions which will make it easier for employees to bring claims on this basis. On the vexed subject of pay reporting, the coalition government has said that it has no plans to implement a power included in the Act to require private sector employers with 250 or more employees to publish gender pay gap data.
'This is unlikely to be the last word on this subject, however, as the current government has committed to maintain the momentum on this issue and it has its own ideas for how the gender pay gap can narrowed'.
All in all, the implementation of the Equality Act raises a range of practical points for employers to consider to ensure that the risks of successful discrimination claims are minimised. With the recent changes in government, and current focus on cost cutting, a number of employers may be taken by surprise as job applicants and employees take advantage of the revised protection provided by the Act. A handful of additional measures under the Act will follow in April 2011.
Some of the key issues of the Act are:
Harmonisation and extension of discrimination law:
The prohibition in directly or indirectly discriminating “because of a protected characteristic” will cover age, disability, sex, gender reassignment, sexual orientation, race, religion or belief and, in many but not all instances, marriage and civil partnerships. 'Disability related' discrimination will be replaced with a prohibition on discriminating against a disabled person by treating them unfavourably where that treatment is not a proportionate means of achieving a legitimate aim.
Recommendations by tribunals:
The Act widens tribunals' powers to make recommendations in cases where unlawful discrimination has been proved. At present, a tribunal can recommend that an employer takes steps that will reduce the effect of discrimination on the claimant. The Act extends this to enable wide-ranging recommendations to be made applying across the workplace, such as re-training staff, publishing its selection criteria used for staff transfer or promotion, setting up a review panel to deal with equal opportunities, harassment and grievances.
While not binding, failure to comply could be damaging to the employer’s reputation and be used in evidence against the employer in future discrimination claims.
Pre-employment health questionnaires:
This new provision prohibits employers asking job applicants questions about their health and whether they have a disability, other than in specified circumstances (including whether the applicant will be able to carry out a function that is intrinsic to the work concerned). This was a response to the disability lobby's concern that disabled people, particularly those with a history of mental health problems, suffer intensely from discrimination at the recruitment stage.
Employers will still be entitled to screen applicants about health after making a job offer (or after including the applicant in a pool of short-listed applicants). Some employers may need to amend documentation or procedures in their recruitment process in order to comply with the new requirements.
Pay discussions with colleagues:
Employees will be free to discuss pay, (including seeking or giving information with current and former colleagues), and whether there is a connection between pay and having (or not having) a particular protected characteristic. Action taken against them for being involved in such a pay discussion will be unlawful victimisation.
Single equality duty (from April 2011):
The Act creates a new single public sector equality duty which will continue to cover race, gender and disability but will be extended to cover age, sexual orientation, religion or belief, pregnancy and maternity and gender reassignment. Public bodies will be required to consider needs, by reference to these characteristics, when designing and delivering public services.
The scope of this duty, and further specific duties, to achieve transparency in the workplace and in the provision of services, is currently the subject of government consultation.
Procurement (from 2011):
The intention is for public bodies to use public procurement to drive equality. However, the coalition government has no plans to introduce further regulation in this area on the basis that public bodies can be relied on to achieve this when pursuing their specific duties. In practice, the results of the consultation process may not be known until early 2011.
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