e-Bulletins
The Equality Act 2010: New Discrimination Legislation
The Equality Act came into force on 1 October 2010.
The main function of the Act is to consolidate existing discrimination law into a single piece of legislation to ensure a consistent approach is taken to equality in the workplace. The good news is that, other than familiarising yourself with the new provisions, all that may be needed is a relatively quick overhaul of your equal opportunities policy, anti-harassment policy, etc. to ensure that they are in line with the new Act.
One notable impact of the new Act is in respect of pre-employment health questionnaires. From October 2010, you will only be allowed to request health-related information before an offer is made for specified reasons such as:
- to decide if the applicant can carry out a function which is essential or "intrinsic" to the job. This is the most important exception and will significantly help you recruit for roles that genuinely do have particular health requirements. For example, it would be permissible to ask applicants for a job involving heavy lifting if they are capable of doing so;
- to decide whether you need to make reasonable adjustments for the selection process (for example, providing more time on written tests for a dyslexic applicant); or
- to monitor diversity;
Other important changes are:
Associative discrimination: this is direct discrimination against someone because they associate with someone with a protected characteristic (e.g. hang around with, look after, etc.).
Perceptive discrimination: this is direct discrimination against someone on the grounds that individuals think they have a protected characteristic.
Third party harassment: the Act extends your potentially liability for harassment against your employees by third parties, such as customers or contractors.
Disability discrimination: the definition of 'disability' has changed so that it is now also discriminatory to treat a disabled person unfavourably because of something connected with their disability.
Pay secrecy: the Act prohibits the use of contractual pay secrecy clauses if it prevents an employee making enquiries because they believe they are being discriminated against. However, you can still require your workforce to keep pay rates confidential from some people outside the workplace, for example a competitor organisation.
In summary, the Equality Act consolidates the numerous pieces of existing legislation and adds a few new areas of protection. Whilst the Act will not require wholesale changes to working practices, a failure to appreciate the subtleties could be expensive so you should still update existing policies to ensure they cover matters such as recruitment, associative and perceptive discrimination and third party harassment as well as ensuring that your employees are trained in this area.