The Equality Act: questions for employers

Dr Mark Simpson summarises the main areas that employers must consider to understand the implications of the Equality Act.

The Equality Act comes into force on 1 October 2010. It is designed to help simplify previous legislation and to deliver a more accessible framework to employers so that they can help protect their employees from discrimination and unfair treatment. To avoid any hefty fines, it is important that employers know what the Act really means.

Dual discrimination – a simpler and more effective approach?

Previously an employment tribunal must consider each ground of discrimination separately (such as sex or race) and cannot, for example, determine that an individual is being discriminated against on the combined ground of being a “Pakistani woman”. The impact on women as a group and on a woman’s ethnic group generally had to be considered separately.

The new rules permit dual discrimination claims, but only on the grounds of two protected characteristics.

It is arguable that a claim based on dual characteristics actually increases the claimant’s prospects of a successful claim, in comparison with those under the single-strand discrimination laws.

As an employer will I be forced to carry out positive discrimination?

The Act will allow employers to take proportionate measures, not merely to train or encourage under-represented groups to apply for jobs, but also to overcome a perceived disadvantage or to meet specific needs based on protected characteristics.

This enables employers to take a wider range of steps in relation to any protected characteristic, for example sex or race.

Any steps taken under this provision are on a voluntary basis and an employer must be able to show that steps taken are proportionate.

Employers will need to exercise caution in recruitment as any positive discrimination could result in claims from unsuccessful applicants. This may lead to an argument that they are more qualified than the successful applicant and the employer therefore had no right positively to discriminate.

In addition, because employers can only positively discriminate where there is no policy of doing this (the rationale being to discourage positive discrimination simply in order to satisfy quotas), the use of this right by employers is likely to be limited.

Are employers now banned from carrying out health checks before a prospective employee commences employment?

Employers were previously permitted to ask any questions of prospective employees, provided that this did not constitute discrimination and the questions were for a valid purpose.

Employers are still permitted to ask pre-employment health questions but only where the employer has already offered the role to the employee as a conditional offer, for example subject to satisfactory health checks. The only other condition is that if the employer needs to find out if the applicant can “carry out a function that is intrinsic to the work concerned”.

So, can I still include pay-secrecy clauses in contracts?

Previously, employers could include pay-secrecy clauses in their contracts to prohibit employees from discussing their pay. Under the changes to the Act, pay-secrecy clauses are unenforceable against employees who discuss pay for the purposes of ascertaining if there is a connection between their pay and the fact that they have (or do not have) a protected characteristic.

For example, a woman will be able to ask a man about his pay for the purposes of assessing whether or not her pay is discriminatory. This will means that pay secrecy-clauses remain enforceable, for example, where two men discuss their pay, provided there are no other discrimination issues.

However, it is likely that many employers will continue to include pay-secrecy clauses in contracts to discourage employees from discussing their salaries.

Will employers be forced to publish pay details?

There is no requirement on an employer to disclose to the public the amount its staff are paid. The Act creates an obligation on employers with 250 or more employees to publish information about the differences in pay between male and female employees.

Will tribunals force managers to attend equal opportunities training?

The Act enables tribunals to make wider recommendations that benefit the entire workforce, such as introducing an equal opportunities policy or ensuring a harassment policy is more effectively implemented. Under law, and with the previous changes, an employer will not face any enforcement action for refusing to comply.

However, failure to implement a recommendation could be used as evidence to indicate discrimination in subsequent claims.

I’m a carer for my young daughter. How will the Act help me?

As a result of landmark case law, carers have the right not to be discriminated against on the grounds of being associated with someone who is disabled. This right is placed in the Act through the prohibition on associative discrimination on protected grounds generally.

Will all forms of discrimination be equally prohibited?

Under the Act, all forms of direct discrimination based on association with someone who has a protected characteristic, and perception related to a protected characteristic, are prohibited.

There will continue, however, to be some discrepancies between different forms of discrimination because, for example, civil partnerships are excluded from this provision.

Isn’t the Act solely a piece of employment legislation?

There are a number of provisions in the Act that are not employment-related. In particular, owners and occupiers of property need to be aware of their duties not to discriminate against disabled people.

Dr Mark Simpson is medical director at AXA ICAS.

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