The Equality Act 2010 will replace previous legislation such as the Race Relations Act 1976 and the Disability Discrimination Act 1995 The Act covers the same groups that were protected by existing equality legislation (age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership and pregnancy and maternity) in addition to extending some protections to groups not previously covered, and strengthening particular aspects of equality law. Changes include:
- Making it easier for a person to show that they are disabled and protected from disability discrimination, in addition to including a new protection from discrimination arising from disability. Indirect discrimination now covers disabled people, meaning that a job applicant or employee could claim that a particular rule or requirement have in place disadvantages people with the same disability. Unless an employer could justify this, it would be unlawful.
- The Act also includes a new provision relating to pre-employment health checks which limits the circumstances when an employer can ask health-related questions before they have offered the individual a job. Up to this point, the employer can only ask health-related questions to help them to:
- – decide whether they need to make any reasonable adjustments for the person to the selection process
- – decide whether an applicant can carry out a function that is essential (‘intrinsic’) to the job
- – monitor diversity among people making applications for jobs
- – take positive action to assist disabled people
- – assure them that a candidate has the disability where the job genuinely requires the jobholder to have a disability
- A jobseeker cannot take an employer to an Employment Tribunal if they think the employer is acting unlawfully by asking questions that are prohibited, though they can complain to the Equality and Human Rights Commission.
Once a person has passed the interview and has been offered them a job
(whether this is an unconditional or conditional job offer) the employer is permitted to ask appropriate health-related questions.
- The Act provides a broader definition for gender reassignment which will improve protection for transsexual people.
- The Act extends the power of an employment tribunal so that it will now be possible for a tribunal to make recommendations that an organisation takes steps to eliminate or reduce the effect of discrimination on other employees, not only on the claimant. For example, by specifying that an employer needs to train all staff about the organisation’s bullying and
harassment policy.
- A change in the Equality Act allows a claim of direct pay discrimination to be made, even if no real person comparator can be found. This means that a claimant who can show evidence that they would have received better remuneration from their employer if they were of a different sex may have a claim, even if there is no-one of the opposite sex doing equal work in the organisation. This would be a claim under sex discrimination.
- The Act makes it unlawful for a company to prevent or restrict your employees from having a discussion to establish if differences in pay exist that are related to protected characteristics. It also makes terms of the contract of employment
that require pay secrecy unenforceable because of these discussions, although an employer can require their employees to keep pay rates confidential from some people outside the workplace, for example a competitor organisation.
Further employment advice can of course be found on the BWF website in our Question Centre and Publications library, or through ringing our member helplines. Further information on the 2010 Act can be found by following this link to the Guide for Employers that ACAS have prepared.
