Hello and welcome to the second in our series of employment videos. My name is Paul Griffin and I am Head of the Norton Rose Group employment team in London. The aim of these short videos is to give you information on important areas of employment law in a unique and easy to use medium. Please feel free to forward these to your colleagues and friends or they can register by contacting us directly.
Today’s video is on the Equality Act 2010 and how it has altered the previous law on discrimination in employment. The majority of the Equality Act came into force on 1 October 2010. It’s replaced all of the previous legislation on discrimination law, such as the Equal Pay Act, the Sex Discrimination Act, the Race Relations Act, and also all the various Employment Equality Regulations on sexual orientation, religion and belief and age discrimination.
However, just because the legislation has been replaced doesn’t mean that the law on discrimination in employment has changed in all respects. In fact most of the law as we know it, whilst set out in a different format, remains the same in its effect - so that in most respects if you as employers already knew how to comply with the law on discrimination, you still do - which is good news!
Unfortunately, the Act has changed certain aspects of the existing law and introduced certain new laws as well.
The aim of this video is to outline a few of the key changes which you need to know about in order to ensure that you don’t fall foul of any of the new provisions.
Pre-employment health enquiries
Before October last year, whilst employers were prohibited from discriminating against job applicants on grounds of their disability, it wasn’t unlawful to ask them health questions before calling them for interview or during the interview process before offering them a job. It was often considered to be one of the main reasons why disabled job applicants frequently failed to reach the interview stage of the recruitment process.
However since section 60 of the Equality Act came into force in October, employers have been prohibited from making health enquiries of job applicants before offering them a job except in limited circumstances.
But what exactly are health enquiries?
The Act makes it clear that questions about disability would be covered but what about asking about sickness records? The European Human Rights Commission has produced a Code of Practice which accompanies the Act which confirms that questions about previous sickness absence do fall within the definition. So such questions can’t be asked before a job offer is made.
What if you get somebody else to ask the questions for you?
The Code makes it clear that it is also unlawful to ask such questions through an agent or other employee. This means that you can’t refer an applicant to an occupational health practitioner before a job offer is made.
What are the exceptions to the general rule?
There are exceptions to the rule which are set out in section 60 sub section 6.
Another exception is where the questions are necessary to find out if reasonable adjustments need to be made to the recruitment process so that a disabled applicant can take part. However, you mustn’t ask follow-up questions about the applicant’s disability which are not relevant to any necessary adjustments for the interview process.
So contrary to some reports there isn’t a blanket ban on asking questions about health - they are permitted in limited circumstances. But where those limited circumstances don’t apply, health questions can’t be asked until a job offer has been made.
What about after the job offer?
Once the job offer is made, the Equality Act states that the offer can be conditional or unconditional. But what conditions are acceptable?
This is not clear from the Act itself but the Code states that job offers may be made conditional on satisfactory responses to disability or health questionnaires or satisfactory health checks (the implication being that the job offer may be withdrawn if unsatisfactory answers are provided).
However, it’s important that employers ensure that they don’t discriminate against a disabled applicant on the basis of any such response. The Code states by way of example that rejecting an applicant purely on grounds that a health check reveals that they have a disability would amount to direct disability discrimination.
The Code goes on to say that an employer can avoid discriminating against applicants whom they’ve offered jobs to subject to satisfactory health checks by making sure that any health enquiries are relevant to the job in question and that reasonable adjustments are made for disabled applicants.
There is no need to ask if an office worker is able to lift heavy things. Equally if an applicant has a disability which necessitates a minor adjustment to his working environment to enable him to do the job, the adjustment should be made.
Banning “secrecy clauses”
The second area of change which I wanted to discuss is the new so-called “ban” of secrecy clauses.
Despite the introduction of the equal pay legislation 40 years ago, a significant gender pay gap still exists. The Government believes that greater equality can be achieved by encouraging transparency in a number of different areas. So, although the Act doesn’t ban “secrecy clauses”, it makes them unenforceable in certain circumstances.
So what are secrecy clauses?
They are clauses in a contract which prevent employees from discussing or disclosing details of their pay - whether to a colleague or to anyone else (including, for example, a trade union representative). Where employees disclose this information to find out if there are any differences in their pay which are related to a protected characteristic such as sex, race or disability, the Act renders such clauses unenforceable.
So, there is not a blanket ban on the existence of such clauses - an employer can still enforce secrecy clauses in the context of a general discussion or disclosure to a third party - but they will be unenforceable in the circumstances mentioned.
So, for example, a woman thinks she is underpaid compared to a male colleague and suspects that the difference is connected to her gender. Her male colleague discloses details of his pay to her even though he is banned from doing so under his contract of employment. If you discipline that employee for his disclosure, your actions could amount to victimisation under the Act. He has disclosed information in the circumstances envisaged by the Act. Compare this to a situation where an employee is told not do disclose his bonus to colleagues within a certain date because not all employees have been informed.
Discrimination by association or perception
Finally I am going to look at the new provisions on discrimination based on perception or association.
Whilst the law had already been established in part through case law, the changes under the Act mean that claims of direct discrimination based on both perception and association in relation to any of the protected characteristics will, with a few minor exceptions, be possible.
This means that it is direct discrimination to treat a worker less favourably because of your mistaken belief that the worker has a protected characteristic or because of their association with someone who has a protected characteristic.
So, an example of “perceptive” discrimination might be where you reject the job application of a heterosexual man whom you wrongly think is gay from impressions of him in an interview. The applicant may not be gay but if you’ve acted in accordance with a mistaken belief that he is, you will be liable for direct perceptive sexual orientation discrimination. It’s no defence that the applicant in question isn’t gay.
A tricky issue concerning this concept of perceptive discrimination is whether it’s necessary for you to perceive that an individual has a protected characteristic as defined under the Act or not. For example, you may dismiss an employee because he has a limp and therefore appears to you unfit for the job. Is it necessary for you to have considered whether he is actually disabled within the meaning of the Act or is it sufficient that you believe him to be generally less-able bodied? If you haven’t actually considered whether his injury would render him disabled under the Act, can you be liable for perceptive disability discrimination where, in fact, his limp is due to a sporting injury which will heal readily? The answer to this question is still unclear.
Now for a little bit about associative discrimination.
An example of associative disability discrimination would be where you treat an able-bodied employee less favourably because they care for a disabled spouse. The claim would be based on the employee’s association with a disabled person - they do not have to be disabled themselves.
So you would need to be careful not to discriminate when dealing with employees who care for disabled relatives. For example, think carefully when considering whether to agree to an employee’s request for flexible working if the reason for the request is to care for a disabled child, parent or other relative.
Equally, when considering whether to promote an individual, if you base your decision not to promote on their association with anyone with a protected characteristic, you could find yourself open to a discrimination claim. For example, where you decide not to promote someone who lives with their ageing mother because you assume they will be otherwise engaged with caring duties in the future, this could amount to associative age discrimination - or where you decide not to promote them because they have a disabled spouse whom you assume will prevent them committing sufficient time to the new role, you could be liable for associative disability discrimination.
Conclusion
These are just a few of the more significant ways in which the Equality Act has changed the law on discrimination in employment as we know it. There are other changes in the Act. Also, there are parts of the Equality Act which have yet to come into force. For example, the provision in the Act which will allow positive action in recruitment and promotion in certain circumstances which will come into effect in April this year.
Once again thank you for listening and if you have any questions or want any further advice on any area covered in this video please contact us.
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