Facts/Background

As the majority of employers may be aware, the Equality Act 2010 has now come into force (1st October 2010), however, not all the proposed provisions have come into force at the same time. Those now in force are set out below. The others will be due in April 2011, 2012 and 2013, such as dual discrimination.

By way of background, the purpose of the Equality Act was to provide a simplified Act to deal with the existing Discrimination law, replacing:

• The Equality Act 1970
• The Sex Discrimination Act 1975
• The Race Relations Act 1976
• The Disability Discrimination Act 1995
• The Equality Act 2006, Part 2
• The Employment Equality (Religion or Belief) Regulations 2003
• The Employment Equality (Sexual Orientation) Regulations 2003
• The Employment (Age) Regulations 2006
• The Equality Act (Sexual Orientation) Regulations 2007

It largely replicates the types of discrimination found in previous legislation but there are some important changes.  The Act defines various kinds of discrimination with reference to protected characteristics, which are:

• Age
• Disability
• Gender
• Reassignment
• Race
• Religion or Belief
• Sex
• Sexual Orientation
• Marriage & Civil Partnership
• Pregnancy & Maternity

Whereas with previous legislation, discrimination claims could only be raised as direct and indirect discrimination, harassment and victimisation, the Act introduces additional new types of discrimination including associative discrimination, discrimination by perception and harassment by a third party. Under disability discrimination, these additional types can be claimed as well as indirect discrimination, which has effectively replaced disability-related discrimination.

Provisions now in force

The following provisions employers should note are now in force:

• The removal of pre-employment health related checks which prevent employers from asking pre employment health questions except in specified circumstances.

Any health related questions in application forms/documents will (arguably) need to be removed. Health related questions can only be asked:

• where you need to decide whether any reasonable adjustments for the individual are needed for the selection process, i.e. to attend an interview;
• whether an applicant can carry out a function that is essential to the job;
• to monitor diversity in the range of applicants;
• to take positive action to assist disabled people and to assure the company that the candidate has a disability where the position genuinely requires the holder to do so.

Once a candidate has then been offered a position, health related questions can then be asked to assist the employer with carrying out any reasonable adjustments for the role.

• Making pay secrecy clauses unenforceable.

Any contractual term that aims to prevent or restrict a person from disclosing relevant information about the terms of their contract will be unenforceable. There is no general prohibition on clauses that hinder pay discussions, but only those that hinder pay discussions aimed at establishing the existence of discrimination.

• Provisions allowing voluntary positive action

The purpose is to assist people who share a protected characteristic and suffer disadvantages connected to that characteristic.  Employers can treat members of a group who share a protected characteristic more favourably than other groups, for example in recruitment, however, this is entirely voluntary and employers are therefore not obliged to take positive action. Employers must still be wary of positive discrimination, which is not allowed.

Comment

To ensure that you are compliant with this new legislation, you may want to consider carrying out an audit of all existing employment policies and identify any areas where there may be risks of non compliance with the new Act. Finally for best practice you may want to monitor your employees to enable that the measures you have put in place are implemented effectively.