The Equality Act 2010
After many years under discussion, the Equality Act 2010 will soon be placed on the Statute Book and the majority of the main provisions come into force in October this year. However, what does this mean for small businesses and employees?
One of the key reasons for implementing the Equality Act 2010 was to harmonise and simplify current discrimination legislation. Whilst these amendments are of critical importance, they will primarily exercise the minds of employment lawyers in dealing with a small number of cases at the margins of the current Law. However, worthy of note in this respect is the ban on discrimination by association which has developed in a piecemeal fashion through Judgments of the Employment Tribunals around the country.
One new provision of the Act is the prohibition on asking questions about the health of employees on job applications (subject to certain specified exceptions). However, employers will still need to obtain information on the health of employees after the recruitment process has completed and this will be lawful.
From April 2011, employees will be able to claim discrimination based on combinations of characteristics, eg an employee will be able to claim they were discriminated against on the grounds that they are an ‘oriental man’ rather than seeking to rely on discrimination purely on grounds of either race or gender.
The Act also gives greater scope to Tribunals to make recommendations to employers to try and ensure that discrimination does not re-occur. It is not intended that these will be binding, but failure to comply could be used in evidence against an employer in future discrimination actions.
A more controversial aspect of the Equality Act, as presently drafted, will allow employers to positively discriminate in favour of under-represented groups. They will only be able to do this if there is a straight choice between two or more candidates who are equally qualified. However, the Conservative Party currently intends to abolish this provision if they are successful at the forthcoming General Election.
The Equality Act also allows employees to discuss pay to present former and future colleagues. Taking action against an employee for disclosing such details could amount to unlawful victimisation. Organisations with 250+ employees are being encouraged to publish pay statistics and, if this does not happen voluntarily, the Act envisages that such publication might become compulsory in 2013 (although, again, the Conservatives say that they would not implement this if they are elected).
One huge change to the present Law will be the ban on age discrimination in relation to the provision of services and Public functions. At present, the ban on age discrimination only applies to employment.
As usual, the ‘devil is in the detail’ and we will have to wait until sometime in the Autumn before we can advise on this fully when it is hoped that the Regulations will be published (together with the exemptions from the Regulations). Whatever the exemptions, it is likely that these new provisions will have a significant impact on nearly all businesses.
Our Head of Employment, Jon Dunkley, says that “This new piece of legislation clarifies the Law and makes its application in particular cases fairer and more transparent. Most businesses will only need to make minor changes to their processes and procedures to comply if they already have, and have implemented, an Equal Opportunities Policy. However, those providing goods and services will need to take fairly swift advice as to whether they will comply with the new provisions banning discrimination on grounds of age in relation to goods and services as this is a completely new area of Law and will affect the whole business community.”
For more information on the Equality Act, please contact Jon Dunkley on 01271-341000 or email him at jon.dunkley@tollerbeattie.co.uk
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