Demistifying the new Equality Act for employers

EMPLOYERS that fail to implement changes brought about by the new Equality Act 2010 will not be fully protected against future discrimination claims and may be acting unlawfully.

Moore Blatch partner and employment expert, Katherine Maxwell recommends employers begin to review their policies and procedures to incorporate any modifications required, if this process has not already begun.

“Employers need to be familiar with the new requirements to fully assess any impact on their business and employees,” said Katherine.

Introduced at the beginning of this month, the Act attempts to simplify existing legislation and provide a more effective legal framework for preventing discrimination.

Bringing together six separate pieces of legislation the Act will cover the same groups that were previously protected, but extends some protection to groups not previously covered, and strengthens particular aspects of equality law.

The Act is based on nine “protected characteristics” which is a term used throughout the Act.  These are essentially the ones we are familiar with; age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sex orientation.

So exactly what changes should employers be aware of?  Katherine details some of these below:

• Pre-employment health questionnaires – there are now very limited circumstances in which these can be used by an employer.  If an individual fails to be employed after a questionnaire is issued and they bring a disability discrimination claim, the burden of proof automatically shifts to the employer.  The employer then has to prove that the answers given by the individual had no bearing on their decision not to employ.
• Pay secrecy clauses – employers will no longer be able to ban these types of clauses where employees are engaging in discussions about pay in order to assess whether there is a link between their pay and a protected characteristic.  This will make it much more difficult for an employer to prevent such discussions.
• Discrimination by association – this is a significant change and will allow those caring, for example, for an elderly person or disabled child to bring a claim for discrimination, if appropriate.
• Increased powers for Tribunals – Tribunals can now make recommendations benefiting the employer’s entire workforce, not just the Claimant, with a view to preventing similar discrimination in the future.
• Third-party harassment – employers’ liability for harassment of its employees by third parties have also changed.  Employers will have two opportunities to take “reasonably practicable” steps to prevent the harassment of its employees before becoming liable after an employee has been harassed on at least two previous occasions.

Katherine continues:  “The new legislation increases the ways in which a claim for discrimination can be bought.”

So how should businesses go about complying with the new Act?  Katherine details some practical steps which employers could take:

• Carry out an audit of all your existing employment policies and procedures, written and unwritten.
• Identify areas where your business is non-compliant under the new Act.
• Plan a strategy for implementing the new Act.
• All staff should be fully aware of their obligations under the Equality Act and should receive any necessary training.
• Review recruitment procedures and documentation to ensure pre-employment health enquiries are not used or can be justified.

Katherine concludes: “It is important that employers do not underestimate the impact of the changes – such as associative discrimination.”

“Although this right has to some extent existed, now that it has been incorporated into the new Act, people will be more aware of it, which could lead to an increase in future claims,” she said.