Welcome to Working Together, the bimonthly newsletter from Options HR, keeping you up to date with the latest HR issues that affect your business. This month sees many of the provisions of the Equality Act, introduced in April 2010, come into effect. The implications of this Act for employers can be difficult to understand at best, that's why I want to shed some light on the new restrictions you need to be aware of as employers.
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The New Equality Act What are the implications?
The new Act has mainly been introduced to harmonise the earlier fragmented discrimination legislation, the normal obligations for employers remain unchanged. There are also some significant new restrictions that you, as employers, should be aware of, in particular the new rules relating to pre-employment health questionnaires. Take a look at the key changes:
now covers discrimination based on perception and association. This means that you cannot discriminate against a person because of their association with another who has a protected characteristic, for instance a disability. Also, it extends to those who are wrongly perceived to have a protected characteristic.
relates to circumstances where a person would be indirectly discriminated against if the employer applied a "provision, criterion or practice" that puts people sharing that person's specific disability, at a particular disadvantage. Roughly translated it is intended to cover situations where someone is deterred or put off, and will most likely apply to recruitment. For example, a job applicant or employee with dyslexia could claim that a rule that employees must be able to type at a certain speed disadvantages people with dyslexia. Unless the employer can justify this, it would be unlawful.
widens the scope of protection and creates new prohibited acts of discrimination, such as an employer dismissing a disabled staff member for absences due to their disability rather than the disability itself.
a new element of the Act which is likely to come into force in April 2011. If an employee believes that they have been treated unfairly on the grounds of two protected characteristics (age, sex, disability, gender reassignment, race, religion or belief, or sexual orientation) they can bring a claim of direct discrimination. It can only apply in cases of direct discrimination but claims may increase as people use dual discrimination to cover all bases.
is related to perception and association. If third parties are believed to be harassing an individual in the workplace, and the employer has not taken reasonable steps to prevent a recurrence after two previous reported occurrences, they will be deemed liable.
- under the remit of direct sex discrimination, a claim for equal pay' can be made in the absence of a comparator when it can be proved that the reason is gender. For example, if an employer says I would pay you more if you were a man'.
any provision preventing an employee from discussing their pay to establish any discrimination will be void, and they will be protected from victimisation resulting from discussion of pay. You can keep pay clauses in employment contracts which prevent the disclosure of pay information for other purposes, for example, to competitors.
an employer should not ask about an applicant's health before offering them work, when they are not in a position to offer work immediately, or before including them in a group of people to whom they intend to offer work in the future.
You can ask about an applicant's health, but your conduct, as a result of information given, may lead a tribunal to believe that you committed a discriminatory act. In these circumstances, the burden of proof shifts to you as the employer to show that no discrimination took place.
However, this restriction does not apply to questions that are necessary to establish whether:
- The job applicant is able to comply with requirements to take an assessment such as an interview or selection test.
- A duty to make reasonable adjustments will arise in connection with any assessment.
- The applicant will be able to carry out a function that is key to the work concerned, for example lifting in a warehouse.
Employers are also entitled to ask questions necessary to:
- Monitor diversity in the range of applicants.
- Enable them to take positive action.
- Establish whether they have a particular disability, where having that disability is an occupational requirement.
- Do not use pre-employment questionnaires; instead ask whether a candidate will need help or adjustments to attend an interview.
- Do not ask health-related questions in the interview unless they are directly related to a core part of the job, like lifting.
- You can only use a medical questionnaire after you have made an offer of employment, but the offer can be made conditional on the medical questionnaire or report.
As ever with new legislation, the Government has left the interpretation to be decided by case law. It may look complicated if you would like further help or clarification don't hesitate to call me on 0118 940 3032 or send me an email.