Legal Ease

In our last Legal-Ease we informed you that the Equality Act 2010 came into force on the 1st October 2010. Section 60 of the new Act deals with “Enquiries about disability and health”. This section is likely to affect all employers in that it provides that an employer should not ask health (including disability) related questions before making an offer of employment. This includes asking any health questions as part of the application process or during an interview. Questions that relate to the applicants past health, such as previous sickness absence, will count as question relating to health or disability.

It will still be possible to ask health questions after an offer has been made and to make an offer of work conditional upon a satisfactory medical.
Ensure your recruitment process is updated and that interviewers understand what questions they can and cannot ask in interview to avoid an inference of discrimination by an unsuccessful job applicant.

SOME QUESTIONS CAN BE ASKED...
There are some exceptions when questions regarding disability and health may be asked pre-job offer. This will include questions which are necessary to determine whether the applicant needs reasonable adjustments to be put in place during the recruitment.

Another exception is where questions are necessary to decide whether an applicant can carry out a function that is ‘intrinsic” to the job. However, even if a function is intrinsic to the job, the employer should only ask a question about the applicant’s health to establish whether the applicant is able to do the job with reasonable adjustments in place. In reality, there will be very few situations where a question regarding a person’s health or disability can be asked prior to making a job offer.

Simply asking an applicant about their health prior to a job offer will not in itself amount to discrimination, but Tribunals will be able to draw inferences of discrimination where such questions have been asked. Furthermore, a jobseeker who considers an employer is acting unlawfully can complain to the Equality and Human Rights Commission, who will have the power to investigate the use of prohibited questions and take enforcement action in its own name, even where no discrimination can be shown to have taken place.

PAY SECRECY CLAUSES
Pay secrecy clauses are clauses in employment contracts (or related policies), which prevent an employee from disclosing or discussing their salary / wages or bonuses with, for example, their colleagues.

A new provision in the Equality Act is intended to make any employment terms which aim to prevent or restrict employees from disclosing their pay details unenforceable in certain circumstances.

The Government believes that greater transparency about pay is one way of reducing the gender pay gap between men and women. Therefore, employees will be able to ask colleagues about their pay where the purpose of any discussion is to ascertain whether there is a connection between any difference in pay and a protected characteristic. This will not enable employees to breach confidentiality restrictions where this is not the purpose of the discussion e.g. talking to a competitor with a view to securing a better offer.

Any action taken against an employee by an employer as a result of a protected pay discussion will be treated as victimisation.