Many employers will groan at the thought of the Equality Act 2010 coming into force. The main parts of the Act will come into force this October but it is less scary than it sounds, although employers will need to have a general understanding of the new aspects.
In general terms, the Equality Act will simply codify, in one place, discrimination laws which are currently covered in different Acts. It will also provide consistency across the different types of discrimination. This includes confirmation that associative discrimination (where an employee is discriminated against because they associate with someone with a ‘protected characteristic’, for example, race) and perceptive discrimination (where an employee is discriminated against because others believe they have a ‘protected characteristic’, even if they don’t. For example, if a person is believed to be homosexual when, in fact, they are not).
The main interest for employers will be the more controversial aspects of the Act, including pre-employment health questionnaires, pay secrecy and ‘positive action’.
The circumstances in which a pre-employment health check can be used, will be limited by the Equality Act. Up until the point when you have offered an individual a job, you will only be permitted to ask health-related questions to decide whether you need to make any reasonable disability-related adjustments for the interview process, or to check whether an applicant can carry out intrinsic parts of the job (along with some other additional specific exceptions).
The Equality Act will also make it unlawful for an employer to prevent or restrict employees from discussing pay differences. This includes those discussions which are an attempt by the employee to establish if the differences in pay are related to ‘protected characteristics’ (such as sex or race). Therefore, whilst pay secrecy clauses in an employment contract are not outlawed, they may be more difficult to enforce.
Probably one of the most controversial aspects of the Equality Act is ‘positive action’ which will be introduced in April 2011. This is not ‘positive discrimination’. Employers will not be forced to take positive action, although employers will be able to choose a person from an under-represented category (for example, a female in a male-dominated environment) so long as those applicants are equal in all other respects.
The Equality Act is not nearly as controversial as the headlines would have you believe. However, employers will need to understand the key changes and what you can and cannot do to protect you from any discrimination claims.
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If you need any help any employment law issues, contact Raworths, telephone 01423 566666 or visit our offices at Eton House, 89 Station Parade, Harrogate HG1 1HF. Alternatively you can email deborah.boylan@raworths.co.uk
