newsletter – Equality Act 2010 – positive discrimination

Posted on October 26, 2010 by Martin Malone

As a general rule, positive discrimination in favour of a particular category of persons involves discrimination against those not in that category. Depending on the particular situation, positive discrimination in favour of one category of persons is therefore likely to be unlawful discrimination against others.

The Equality Act allows what it calls “positive action” in some situations. It covers permitted positive action in two separate sections. One essentially restates previous law and came into force on 1 October. The other relates to recruitment and promotion, is new and is not yet in force – the coalition government is still considering whether or not to bring it into force.

The section which came into force on 1 October 2010 ensures that “positive action” is lawful if it is a proportionate way of achieving defined aims, essentially alleviation of disadvantage experienced by people sharing any of the “protected characteristics”, viz age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex (gender) or sexual orientation. In essence this goes very little, if any, further than previous law.

The section which is not yet in force will, if and when it is implemented, allow an employer to take these “protected characteristics” into account in selecting to whom to offer a post if (i) people having the same protected characteristic are at a disadvantage or are under-represented and (ii) the candidates are each as qualified as the other(s). It covers not only employees and prospective employees but also applicants for contract work, prospective partners in a firm (including LLPs) and applicants for pupillage or tenancy in barristers’ chambers and so on.

Apart from these general provisions, the Equality Act 2010 also allows, as did previous law, positive discrimination in favour of the disabled. Further, as noted above in the note in this newsletter concerned with health questionnaires, the Act provides an exception from the normal ban on employers asking “pre-employment offer” health questions if positive action is appropriate for example in making arrangements for interviewing a disabled job applicant.

This is an item from our October 2010 newsletter. If you are interested in subscribing to our monthly newsletter please click here.

newsletter – Equality Act 2010 – pre-employment health questions

Posted on October 26, 2010 by Martin Malone

With a few necessary exceptions the Equality Act 2010 makes it inappropriate for an employer to ask a job applicant any health related questions before offering work to the job applicant. Merely asking questions about the job applicant’s health is not unlawful disability discrimination but anything the employer does in reliance on information given in response to such questions may be. Also merely asking the question may give the Equality and Human Rights Commission power to investigate and issue an “unlawful act notice”.

The common practice of asking job applicants to complete a health questionnaire as part of the job interview process is thus now generally dangerous and is to be deprecated.

There are 3 points to make in connection with the above:

this provision does not apply once an offer of work has been made. Making an offer of work subject to a satisfactory medical is therefore perfectly in order;
in practice the provision is unlikely to make much difference to the eventual outcome of most cases which go as far as an employment tribunal. The Equality Act 2010 shifts the burden of proof to the prospective employer to disprove discrimination if an unsuccessful job applicant makes a complaint to an employment tribunal that his job application was rejected because of a reply to a “pre-job offer” health related question. However in practice, in the vast majority of cases under previous law, it is likely that a tribunal would have come to the same ultimate conclusion;
the Equality Act 2010 specifies five situations when it is in order for a prospective employer to ask health related questions of a prospective employee. These are essentially where:

(a) questions are asked to ascertain whether any reasonable adjustments will have to be made to enable the job applicant to attend an interview;
(b) questions are asked to establish whether the job applicant will be able to carry out a function that is intrinsic to the work concerned;
(c) questions are asked for “monitoring diversity in the range of persons” applying to the employer for work;
(d) positive action is to be taken, where that is allowed (see the next newsletter blog post);
(e) having a particular disability is an occupational requirement for the job, provided that is a proportionate means of achieving a legitimate aim.

This is an item from our October 2010 newsletter. If you are interested in subscribing to our monthly newsletter please click here.

newsletter – Equality Act 2010 – dual discrimination

Posted on October 26, 2010 by Martin Malone

Arlene Phillips, one of the judges on TV’s “Strictly Come Dancing” was aged 66 when she was not reappointed. Neither her age nor her sex on their own was the reason for her non-reappointment – this was provable from the fact that another judge was 65 and yet another judge was female. Under the law at the time (making other assumptions) she would not have been able to win either an age discrimination or a sex discrimination claim as each claim would have had to be considered separately. Neither claim could stand up on its own and so she, or at least an employee in a similar position, would have lost a discrimination claim. However on the basis that the reason for the refusal to reappoint her was combination of her age and her sex, the new “dual discrimination” provision in the Equality Act 2010 could make the situation different.

This particular provision of the Equality Act 2010 has not been brought into force on 1 October 2010, so the law in this respect is currently unchanged. However when the relevant section is brought into force a person in the position outline above would be able to bring a claim as a “dual discrimination claim”. Any two of age, disability, gender reassignment, race, religion or belief, sex and sexual orientation will then be eligible to be combined into a free-standing “dual discrimination” claim. Currently it is thought that likely that this provision will come into force in April 2011, but this is subject to confirmation and is still uncertain.

It should be noted that there is nothing to prevent an employee in an appropriate situation from bringing separate “single strand” discrimination claims as well as a “dual discrimination” claim basing all three claims on the same protected characteristics.

This is an item from our October 2010 newsletter. If you are interested in subscribing to our monthly newsletter please click here.

newsletter Equality Act 2010 – disability discrimination

Posted on October 26, 2010 by Martin Malone

As noted in a previous newsletter blog post the substance of previous law making it unlawful to discriminate against a person in the employment field because of disability remains generally unchanged by the Equality Act 2010. However various detailed changes are probably more significant if the “protected characteristic” is disability than if it is one of the other eight protected characteristics.

Firstly, “comparators”. As a matter of commonsense, “discrimination” involves making comparisons. In 2008 the House of Lords identified a particular problem in selecting the appropriate person with whom a person suffering from a disability should be compared for the purposes of deciding whether there had been unlawful discrimination. Obviously the comparison should be with a fit person, but which fit person? In simple terms, in the employment field, if a person was unable to come to work because of a disability and was dismissed for non-attendance, should his/her position be compared with (i) that of a fit person who, being fit, would not have been absent from work (and so would not have been dismissed) or should his/her position be compared with (ii) that of a fit person who was dismissed for non-attendance? If it were (i) the disabled person would have been discriminated against; if it were (ii) there would have been no discrimination as the disabled person would have been treated in exactly the same way as the fit person.

Those interested in the detail may like to look at the judgment in London Borough of Lewisham v Malcolm HL 2008 but the important point for present purposes is that the Equality Act 2010 simply sweeps away the problem. The position from 1 October 2010 is simply that “A person (A) discriminates against a disabled person (B) if (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim”. The result is a special category of “disability-related discrimination”, essentially unjustified less favourable treatment for a reason which relates to a person’s disability with no requirement for a comparator.

Thus it is now clear that in the above example the disabled person would, all else being equal, win a disability discrimination claim under the Equality Act 2010.

Secondly, the meaning of “disability”. In general the meaning of “disability” for Equality Act 2010 purposes is very similar to that used previously – it means a physical or mental impairment which “has a substantial and long-term adverse effect” on a person’s “ability to carry out normal day to day activities”. There are a couple of minor changes to the definition, one for the benefit of cancer sufferers and the other concerning what is meant by “normal day to day activities” but these are unlikely to make much practical difference. A change which will make a practical difference, albeit perhaps not in very many cases, is that a child aged under 6 will qualify as suffering from a disability regardless of whether their disability affects their normal day to day activities, provided of course that they satisfy the other conditions required to qualify – this is likely to be particularly relevant in the context of alleged “associative discrimination” against an employee who is a carer of a small child (as to which see the earlier newsletter blog post).

Thirdly, pre-employment health enquiries are generally banned as from 1 October 2010. This point is covered in more detail in the following blog post concerning pre-employment health questions.

Fourthly, indirect discrimination applies in disability cases from 1 October 2010. In practice it should be generally possible for an employer to avoid liability if he makes an appropriate reasonable adjustment once he has become aware of the employee’s disability.

This is an item from our October 2010 newsletter. If you are interested in subscribing to our monthly newsletter please click here.

newsletter – Equality Act 2010 overview

Posted on October 26, 2010 by Martin Malone

Important legislation such as the Equal Pay Act 1970, the Sex Discrimination Act 1975, the Race Relations Act 1976, the Disability Discrimination Act 1995 are all repealed (and replaced) and regulations such as the Employment Equality (Age) Regulations 2006, the Employment Equality (Sexual Orientation) Regulations 2003 and the Employment Equality (Religion or Belief) Regulations 2003 are all revoked (and replaced).

The Equality Act 2010 replaces these previous anti-discrimination Acts and regulations with one single Act. It uses different wording and some different concepts from those used previously but makes only a few changes to the substance of existing law. This harmonisation (or maybe “Harmanisation” given the name of the Minister in charge of getting the Act through Parliament on 8th April, in the nick of time before dissolution) can only be welcome and getting it done is an impressive achievement.

The official Equality Act Impact Assessment says that “In the first year, the Equality Act is estimated to cost between £240.9m and £282.6m. This represents the cost of people making themselves familiar with the new law and one-off implementation costs of the Act” (the impact assessment also suggest that in the same year the Act could produce “benefits in the range of £101.6m to £133.6m”). HR departments and employers generally will have to review policies, contracts, job application forms and recruitment processes.

An important conceptual change is the introduction of the idea of “protected characteristics” ((i) age, (ii) disability, (iii) gender reassignment, (iv) marriage and civil partnership, (v) pregnancy and maternity, (vi) race (defined to include colour, nationality and ethnic or national origins), (vii) religion or belief, (viii) sex (ie gender) and (ix) sexual orientation). This change underlies the whole Act. It is important both as a matter of terminology and of “focus” which now centres on the protected characteristic rather than on the protected person. One result is that in general it no longer matters whether the “victim” of less favourable (ie discriminatory) treatment possesses the protected characteristic. Instead what now matters is whether the less favourable treatment is because of a protected characteristic, regardless of who it is possessed by. Thus what is sometimes called “associative discrimination” is now generally unlawful by statute (unless, in some cases, it can be justified) – for example discrimination against a fit employee because they have taken time of work to look after a disabled or elderly person is now generally unlawful by statute and ingenious legal arguments which led to contortions by tribunals attempting to achieve this result under the now repealed legislation are thus no longer relevant.

The Act outlaws various types of behaviour which take place because of one or more of the protected characteristics, as follows: direct (including associative and perceived) discrimination, indirect discrimination, a special category of “disability related discrimination”, harassment (including third party harassment) and victimisation.

This is an item from our October 2010 newsletter. If you are interested in subscribing to our monthly newsletter please click here.

now that’s an expensive comment to have made

Posted on May 28, 2010 by Martin Malone

[picappgallerysingle id="1633994" align="left"] In our June 2009 newsletter we reported the case of Linda Sturdy, a senior NHS manager who was passed over for promotion because of her age. Unfortunately, when told that she was 57 a manager commented “I didn’t realise you were so old”. The upshot was that she received an award for injury to feelings which, including interest, came to £33,500 and is believed to be the highest of its kind.

She was also awarded £5700 plus interest for aggravated damages (reflecting the way in which the NHS Trust employer dealt with the matter) and an uplift of 25% to the award to recognise the Trust’s failure to follow the correct procedures.

Ms Sturdy has now recovered a further £147,000 for lost salary and pension rights, making the overall award just short of £187,000.

Now that’s an expensive comment to have made! According to the Yorkshire Post the case has cost the Leeds Teaching Hospitals NHS Trust over £500,000. This is at a time when it is under pressure to make cuts to services running into millions of pounds.