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Legal Updates

Equality Simplified?

11 January 2010 #Employment


We`ve heard it before - headlines proclaiming new legislation is "the biggest shake-up" to employment law since, well, the last big shake-up. In the case of the Equality Bill such headlines may be justified.

The Equality Bill (the Bill) is being hailed as the biggest overhaul of discrimination law ever seen in Britain. The result of ad hoc implementation of European law is over 1,100 separate pieces of legislation covering discrimination law. An overhaul is well overdue and the Bill will, without doubt, simplify discrimination law in this country. In addition to simplifying the existing legal framework, the Government has taken the opportunity to broaden the protection offered to workers in the discrimination field.

A broader concept of discrimination

In addition to the existing forms of discrimination, the Bill also covers:

  • Associative discrimination;
  • Perceptive discrimination
  • Dual discrimination; and
  • Third party harassment.

Associative discrimination

This is discrimination against somebody on the basis of their association with someone with a protected characteristic. For example, a carer of a disabled relative will be protected from less favourable treatment by virtue of their association with that person. It is in the caring sector that the benefits of this strand of discrimination will be felt by employees. Every day, another six thousand people take on a caring responsibility. Carers provide unpaid care by looking after ill, frail or disabled family members, friends or partners. Their ability to retain employment whilst they undertake their caring duties is therefore of paramount importance. It is hoped that this added protection will encourage employers to adopt more sympathetic attitudes towards carers amongst its workforce.

Perceptive discrimination

The Bill also covers "perceptive discrimination" so that it will be unlawful to discriminate against someone because of a perceived characteristic, even if that perception turns out to be wrong. For example, a straight man who is the subject of gay related jokes and banter may have a valid discrimination claim.

  • Tip 1: Increase awareness through training to prevent discrimination arising & update equal opportunities policies to cover associative and perceptive discrimination

Dual discrimination For the first time, employees will be able to claim direct discrimination for a combination of two types of the following protected characteristics; age, disability, gender reassignment, race, religion or belief, sex and sexual orientation. A black woman who has been discriminated against could bring a dual discrimination claim on the basis of sex and race. To successfully defend the claim, the employer will have to demonstrate that they would not have treated a non-black male any better.

  • Tip 2: Be proactive and deal with problems as soon as they arise - don`t let them fester!

Third party harassment

Under the Bill, an employer may be held liable for harassment of an employee by a third party (such as a customer or contractor). Currently, this type of harassment only applies in cases of sexual harassment. In order to be liable, the harassment must have occurred on at least two other occasions and the employer failed to take reasonable steps to stop it. Litigation surrounding what steps are "reasonable" can be expected.

  • Tip 3: Ensure customers & clients know your stance on equality issues and that staff know to raise concerns with you

Disability discrimination

Disability-related discrimination has been replaced with two new forms of discrimination: "indirect disability discrimination" and "discrimination arising from a disability". This is in order to make such claims easier for Claimants to bring.

  • Tip 4: Review and amend any policies that could indirectly discriminate against disabled employees

Pre-employment health questionnaires

Concerns had been raised by the disability lobby about the discrimination disabled people face (particularly those with mental health issues) with pre-employment health questionnaires; often being put off applying for such jobs in the first place. Whilst pre-employment health questionnaires will not be prohibited, a new clause will make it easier for disabled job applicants to succeed with a claim if they have been asked pre-employment health questions and their applications fail at the first hurdle (i.e. without being invited to an interview). In such cases, it will be up to the employer to prove that no discrimination has taken place.

  • Tip 5: Make it clear that you only use health screening questionnaires to ascertain if reasonable adjustments are required and to monitor diversity
     
  • Tip 6: Make sure you document your justification for not progressing an application from a disabled candidate

  • Tip 7: Refresh training of employees responsible for recruitment

Positive action

As reported in our December article, the Bill will permit (but not require) employers to take under-representation of particular groups into account when selecting between two equally-qualified candidates (although automatic selection of under-represented groups and specific quotas will still be prohibited). For example, if you are recruiting to a male-dominated team and are presented with two candidates, male and female, each with equivalent skill-sets and experience, you will be permitted to select the female candidate simply because she is a woman. You will not, however, be able to require that a certain proportion of women are selected in each round of recruitment, nor will you be able to a recruit a weaker female candidate over a stronger male candidate.

  • Tip 8: Consider where you can target job adverts or training to reach under-represented groups. At the same time, ensure existing staff and candidates are aware that the "jobs on merit" principle still applies.

Pay secrecy clauses & pay gap reporting

Despite it being over 30 years since the introduction of the Equal Pay Act 1970, there is still a significant pay gap between men and women. To address this, the Bill aims to increase pay transparency by banning pay secrecy clauses in employment contracts. However, the Government has backed down over plans to require employers to publish gender pay gap information in favour of voluntary reporting by the private sector. Failing that, regulations may be issued in 2013 making gender pay reporting mandatory for employers with 250 or employees.

  • Tip 9: Consider implementing a pay audit to look at whether current pay packages are fair

The Government is now in a race to get the Bill passed before the general election. If it succeeds, the Bill will come into force in October this year. However, there is no guarantee that the Bill will pass in time and a change in Government before then could see different Bill making it to the statutory books. Buddy will bring you the latest developments, so watch this space.

Clarkslegal, specialist Employment lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Employment matter please contact Clarkslegal's employment team by email at employmentunit@clarkslegal.com by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.

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