legal updates

Tuesday, 26 Oct 2010

YOUR EMPLOYMENT FORUM: the new Equality Act

Thank you to everyone who attended last week’s Your Employment Forum where we looked at some things that remain the same under the Equality Act 2010 and some things that are new, borrowed and blue!  For those who couldn’t make it, here is a summary of what was discussed.

As a general rule, employers’ obligations under the Act remain largely the same as under the old laws. Several of the more controversial provisions have been postponed for further consideration of how best to implement them.

Consolidation

The Act is intended to simplify and consolidate some 116 pieces of separate equality legislation whilst improving the effectiveness of, and harmonising, equality legislation across the board. It includes:

  • widening the scope of direct discrimination explicitly to protect those who are associated with some who has, or who are themselves perceived to have, a protected characteristic;
  • harmonising the legal test for indirect discrimination and widening its scope in respect of disability and gender reassignment;
  • a new statutory concept of ‘discrimination arising from disability’;
  • extending the range of circumstances in which an employer may be liable for harassment of employees by third parties; and
  • restricting the circumstances in which employers may rely on secrecy clauses.

Questions about health

There is then the issue of pre-employment health enquiries. It is unlawful to ask job applicants about their health (including whether they have a disability) before they have been offered a role (or have been included in a pool of applicants to whom roles will be offered once they become available). Job applicants will include an applicant currently employed by the employer and is applying for a new role within the organisation. There are a few listed exceptions. This includes where it is necessary for an employer to establish whether an applicant will be able to carry out a function that is intrinsic to the work concerned.

The three key points:

  1. The act of asking a prohibited question is not a form of discrimination in itself (prohibition can only be enforced by the Equality and Human Rights Commission), but
  2. Acting in reliance on the answer may well be. Therefore, when an employer has asked an applicant a prohibited question and the unsuccessful applicant subsequently brings a direct discrimination claim, the burden of proof will now be shifted to the employer to prove that no discriminations in fact took place, and so
  3. Employers should only ask questions, if necessary, and those questions asked should go no further than is necessary. It seems likely that the narrower and more specific the questions, the more likely they are to fit into one of the exceptions. In addition, employers should focus on applicants’ current health.

So what should employers be doing in light of the Equality Act 2010?

  • As a starting point, brief managers and supervisors about the changes brought in by the Act, including anyone involved in recruitment.
  • Review employment policies, recruitment material and employment procedures and update as necessary so that they reflect the new definitions and protections.
  • Review and update training materials and courses as required and carry out a risk assessment in relation to potential exposure of staff to third part harassment (and vice versa).

And the winner is...

Finally, congratulations to Eleanor Heggie form Scottish Everlastings Limited who gave us the best excuse for phoning in sick to work:

“There was a spider above the front door at home – there was no way I was walking by it!”

Your prize is on its way to you!

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