News

EVENTS

11th October

The new Equality Act 2010 has received considerable press and TV coverage but what does it mean to employers?

The aim was to bring together existing UK discrimination laws and regulations into one Act but the opportunity was also was taken to both make additions and update the law.

Some of the language has also changed. Whilst the same characteristics are protected as before, for example, age, disability, race, etc. these are now known as 'protected characteristics'.

The Act will also bring Equal Pay into a sharper focus and employers who do not have a proper pay structure should take a special note of this requirement.

This article provides a brief overview of five key areas of change that came into force from 1 October 2010.

1) Pre-employment health questions: employers may no longer ask candidates about any disability or medical conditions before making an offer of employment, except where directly linked to the role e.g. driving.

Also good practice would advise that managers avoid questions such:

‘How many days have you had off work due to sickness in the last year?’'

Employers will still be able to withdraw a job offer if a health questionnaire then finds that the candidate is not capable of doing the job and reasonable adjustments cannot be made.

What you need to do:

Review any pre-employment medical questionnaires and application forms and ensure questions relating to health are not asked, other than whether any adjustments need to be made to enable a candidate to attend for interview.
Ensure all recruiting managers are trained and instructed about asking health related questions.

2) Pay reporting and equal pay: a person bringing an equal pay claim no longer has to compare themselves with an actual employee of the opposite sex doing equal work. They can now rely on a hypothetical comparator.

Successfully defending such claims will in future depend on employers having proper pay structures in place supported by a fair job evaluation system.

The Act also makes 'gagging' clauses which stop employees discussing their salaries virtually indefensible.

What you need to do:

Review your pay structures and identify any anomalies which could create problems and start taking corrective action.
Keep detailed records of your pay reviews, decisions made and reasons, and where possible, back up with evidence.
Remove any gagging clauses in contracts or in pay review letters and train your managers. (Do note that clauses preventing employees from disclosing information about pay rates, structures etc externally, e.g. to competitors, are still acceptable.)

3) Discrimination by association or perception

This change may sound a little legalistic but it simply means the following:

You cannot discriminate against someone because they are associated with a person who has one of the ‘protected characteristics’.

For example: you cannot refuse to promote someone because he/she looks after an elderly relative or is married to a person of a particular race.

You cannot discriminate against someone because you think they have one of the ‘protected characteristics’.

For example you cannot turn down an applicant because you think he/she is gay or a woman because you think she may pregnant.

What you need to do:

Check your equal opportunity policy to ensure that it covers discrimination by association or perception.
Ensure your managers are aware of the crucial distinction in wording and that they need to tread carefully.
Ensure that all staff are properly trained to avoid discrimination in the workplace and avoid unintended offence by unthinking banter.

4) Pregnancy

Many employers still appear to consider it acceptable to discriminate on the grounds of pregnancy. The Act makes a key legal change in that pregnancy now becomes a ‘protected characteristic’ in its own right, not just part of sex discrimination. Treating a woman unfavourably because of her pregnancy, pregnancy-related illness or absence on maternity leave is now direct discrimination. Claiming discrimination has also become more straightforward as a woman now only has to show that she has been treated less favourably 'than is reasonable'.

What you need to do:

Check that this change is covered in your policies and that managers are aware of the dangers of such discrimination, i.e. potentially unlimited awards.

5) Disability discrimination

Significant changes have been made to the rules on disability discrimination which can only be summarised here. UKWA members can gain more detail by subscribing through the UKWA to the BusinessHR website. The key changes are:

Tribunals have been given wider powers to decide what is a disability. The claimant still has to show that he/she has a 'physical or mental impairment' that has a 'substantial' and 'long-term' adverse effect on his/her ability to carry out 'normal day-to-day activities'.
Indirect discrimination has also been extended to cover disabled people. This means that setting criteria for a job that are not essential for its performance but which could exclude a disabled candidate, who could otherwise do the role, could be discriminatory.
The Act introduces discrimination 'arising from' a disability. This means that claimants simply have to show that they received less favourable treatment because of their disability and not compared to another person. One area needing special care will be handling higher absence rates by disabled employees.

Employers can defend such claims on the grounds that it is a proportionate means of achieving a legitimate aim or they were unaware of the disability. The duty to make reasonable adjustments for a disabled person is also expanded and employers will need to take increased care in assessing such requirements.

What you need to do:

Ensure you are able to objectively justify the treatment of disabled employees.
Ensure that you consider all options carefully and realistically and suggest possible adjustments or aids, as well as encouraging employees to do so.
Review your policies and ensure that all of the above changes are taken into consideration.

Help and advice

UKWA members can obtain a comprehensive HR service via the UKWA website at a very competitive cost. The service is provided by BusinessHR.

Through the UKWA, members can also obtain a 20% discount on the comprehensive HR support service provided by BusinessHR plus a significant discount on other services such as job evaluation, equal pay audits and manager equal opportunity training.

For further information contact David Rankin at david.rankin@businesshr.com or call him on 07775 625 203.