Legal Ease

After some uncertainty the Equality Act will come into force on 1 October 2010. The Act will achieve its stated aim of consolidating the existing discrimination and equal pay legislation. The new Act should make it easier for businesses and employers to comply. (Please refer to June’s Legal Ease).

The Act will protect individuals on the following grounds:
· Age
· Disability
· Gender reassignment
· Marriage and civil partnership
· Pregnancy and maternity
· Race
· Religion or belief (including lack of belief)
· Sex
· Sexual orientation

There are no new characteristics added but note that the definition of gender reassignment has been broadened so that it will no longer be necessary for an individual to be under the supervision of a medical practitioner to enjoy protection.

There is still some uncertainty, for example, in respect of the gender pay reporting provisions in the Act.

The Act also contains other provisions that are not yet coming into force, including the new concept of dual discrimination, an extended public sector Equality Duty and a prohibition on age discrimination in services and public functions. The Government is looking at how the rest of the Act can be implemented in the best way for business, and will make an announcement in due course.

DISABILITY
The Act has made it easier for a person to show that they are disabled and protected from disability discrimination. Under the Act, a person is disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

THE EQUALITY ACT – WHAT’S NEW FOR EMPLOYERS?
The employer continues to have a duty to make reasonable adjustments to help an employee overcome any disadvantage resulting from an impairment.

The Act includes a new protection from discrimination arising from disability. This states that it is discrimination to treat a disabled person unfavourably because of something connected with their disability (e.g. a tendency to make spelling mistakes arising from dyslexia). This type of discrimination is unlawful where the employer or other person acting for the employer knows, or
could reasonably be expected to know, that the person has a disability. This type of discrimination is only justifiable if an employer can show that it is a proportionate means of achieving a legitimate aim.

GENDER REASSIGNMENT
The Act provides protection for transsexual people. A transsexual person is someone who proposes to, starts or has completed a process to change his or her gender. The Act no longer requires a person to be under medical supervision to be protected – so a woman who decides to live permanently as a man but does not undergo any medical procedures would be covered.

Transgender people such as cross dressers, who are not transsexual because they do not intend to live permanently in the gender opposite to their birth sex, are not protected by the Act.

It is discrimination to treat transsexual people less favourably for being absent from work because they propose to undergo, are undergoing or have undergone gender reassignment than they would be treated if they were absent because they were ill or injured. Medical procedures for gender reassignment such as hormone treatment, should not be treated as a ‘lifestyle’ choice.

DIRECT DISCRIMINATION
The new definition of direct discrimination – less favourable treatment “because of” the protected characteristic of disability – is wide enough to cover discrimination by association. So, for example, if an employee was refused a job because he or she had a disabled child, this would be direct discrimination. The employer's treatment of the claimant would be "because of" the protected characteristic of disability, albeit the child's rather than the claimant's.

INDIRECT DISCRIMINATION
Indirect discrimination now covers disabled people. This means that a job applicant or employee could claim that a particular rule or requirement you have in place disadvantages people with the same disability. Unless you could justify this, it would be unlawful.

PRE-EMPLOYMENT
There are new rules against employers from asking job applicants disability-related questions, though this is subject to major exceptions.

The Act makes it unlawful for an employer (or any recruitment agency or consultant) to "ask about the health" of a job applicant before offering work to, or shortlisting, the applicant. If the employer asks an unlawful question about health during the recruitment process, and the applicant does not get the job, in any subsequent disability discrimination claim the burden of proof will be on the employer to show that there was no discrimination.
Both written and oral questions are outlawed by the provision, so those conducting job interviews will have to be careful to avoid the subject of health or fitness. The provision is not limited to questions directed at the job applicant. A request for a reference sent before a job offer is made must also avoid asking questions that contravene the provision.

For further information refer a 'Quick Start Guide for Employers' (link to ACAS).

PRACTICAL STEPS TO TAKE BEFORE THE EQUALITY ACT 2010 COMES INTO FORCE

· Review existing policies and procedures regarding discrimination and harassment (including grievance procedures) and decide whether they should be updated – if changes are necessary amend and communicate to all employees.

· Ensure that all Directors, Managers and employees in your business are aware of the changes and how they are realised through your policies.

· Provide appropriate training where necessary.

If you require help with implementing or amending your Policies, please contact us on 0845 450 0898 or email us at helpline@firsthruk.com.

Labels: Equality Act 2010