Equality Act guidance

Posted on September 17, 2012 by Martin Malone

Nearly two years after most of the Equality Act 2010 came into force, the Government Equalities Office has published a series of guides (27 in total) to the changes made by the Act.

Particularly useful to employers is the “quick start” guide to the restriction on asking about health questions in recruitment (eight pages and full of examples of what you can and can’t do) and the guide for small businesses on age discrimination in the provision of services – these provisions come in to force from 1 October this year.

The guide is very brief and sets out clearly what is covered. For example, shopkeepers will be able to retain those notices which say “No more than 3/4/5 children allowed inside at any time” to restrict the number of children allowed in their shops, because children fall outside the scope of the protection. Continue reading →

just how far can the concept of philosophical beliefs extend?

Posted on October 26, 2011 by Martin Malone

As originally drafted, the Employment Equality (Religion or Belief) Regulations 2003 prohibited discrimination on grounds of religion or "similar" philosophical beliefs.

Then the Equality Act 2006 removed the requirement for such similarity, and extended the protection to any philosophical belief: the Equality Act 2010 s.10 continues with that wide definition.

Removal of just one word dramatically increased the potential for seeking protection from discrimination on a whole range of lifestyles, ideas and practices. As we’ve reported on many occasions it is fair to say that, over recent years, claimants have put forward quite an esoteric mix of possible candidates, and establishing whether these actually amount to a protected philosophical belief is becoming a standard pre-hearing review issue for employment tribunals. Continue reading →

equality reporting: how many employers will voluntarily "think, act and report"?

Posted on October 26, 2011 by Martin Malone

In the context of recent reports from the Equality and Human Rights Commission and Chartered Management Institute that it will take 70 years and 98 years, respectively, for women to be equally represented in positions of power and to achieve pay equality at senior levels, some might think that strong measures to address pay inequality are overdue. Moreover, both reports emphasise the business case for pay equality, and not just the issue of fairness. Continue reading →

Equality Act 2010 – new April items

Posted on April 17, 2011 by Martin Malone

As is well known, the Equality Act 2010 replaced the vast majority of British anti-discrimination laws with one single statute on 1 October 2010. Not all parts of the Act came into force on 1 October 2010 and 6 April 2011 is the start date for three significant related items:
1. Positive action (Equality Act 2010 s.159)
2. Public Authority duties (Equality Act s.149)
3. Codes of Practice issued by the Equality and Human Rights Commission

Positive action. As from 6 April 2011 it is lawful for an employer to take any of the nine “protected characteristics” (sex, race, religion, sexual orientation etc.) into account in selecting to whom to offer a post, whether recruitment of a new job applicant or promotion of an existing employee, if the candidates are each as qualified as the other(s) and people having the same protected characteristic are under-represented in the employer’s workforce. Any action taken must be a proportionate means of addressing such under-representation.

The official explanatory notes to Equality Act 2010 explain that “The question of whether one person is as qualified as another is not a matter only of academic qualification, but rather a judgement based on the criteria the employer uses to establish who is best for the job which could include matters such as suitability, competence and professional performance”.

Positive action in favour of someone is not the same as positive discrimination in their favour (which generally remains unlawful after 6 April if it is because of a protected characteristic simply because it generally involves unlawful discrimination against someone else). Thus simply offering a job to a woman because women are underrepresented in the company’s workforce when a male candidate is better qualified is not lawful. Similarly offering the job to a woman who has the same qualifications as a male candidate is not lawful if women are adequately represented in the workforce. Those both remain, as previously, unlawful direct discrimination.

Employers should remember that they may need to justify any positive action if an unsuccessful candidate sues. Also it is worth noting that “positive action” of the sort noted above is not compulsory, unlike the duty imposed on employers to make “reasonable adjustments” in favour of employees who suffer from a disability, which can clearly amount in a rather different sense to taking positive action.

The Public Sector Equality Duty. This is a statutory duty on public bodies and others carrying out public functions which came into force on 6 April 2011. The intention is that it will “embed equality considerations into the day to day work of public bodies, so that they tackle discrimination and inequality and contribute to making society fairer”.

Codes of Practice. The Equality Act Code of Practice on Employment and the Code of Practice on Equal Pay, both prepared by the Equality and Human Rights Commission, also came into effect on 6 April 2011. According to the EHRC:

“The purpose of these Codes of Practice is to explain the new statutory provisions of the Equality Act. The Codes will help to ensure that the law is applied consistently by lower courts and tribunals. They will also help make the law accessible to a wider audience, such as those who have obligations and those who have rights – or their representatives. The Codes set out clearly and precisely what the legislation means. They draw on precedent and case law and explain the implications of every clause in technical terms. These statutory codes are the authoritative source of advice for anyone who wants a rigorous analysis of the legislation’s detail. For lawyers, advocates and human resources experts in particular, they will be invaluable”.

It is relevant to point out that the coalition government has announced that three other measures previously due to be introduced on 6 April 2011 under Equality Act 2010 are postponed or cancelled. These are the provisions for what was called the Equality Act Socio-economic duty (scrapped, as announced in November 2010); the rather technical provisions allowing claims for “dual discrimination” (postponed, possibly indefinitely, as announced in March 2011) and the provision under which employers would be liable for harassment of their employees by third parties if they “failed to take such steps as would have been reasonably practicable to prevent the third party from doing so”.

Can employers issue redundancy notices for over 65s before 6 April?

Posted on February 21, 2011 by Martin Malone

Based on Government announcements made in January this year and corresponding ACAS guidance, the almost universally held view was that employers needed to act before 6 April in order to issue notices to employees who are 65 or over to retire on or before the deadline for abolition of the default retirement age on 6 October. The reason for this is that, in order to act fairly under the current (but soon to be phased out) Regulations, an employer must give notice of retirement of at least six months. This allows time for the employee to object to the proposed retirement and for the employer to consider those objections (a necessary part of the process).

However, in an unexpected development which has caused a good deal of consternation, it seems from the draft regulations which have now been published that only those who turn 65 during the period from April to October can be forcibly retired and those already over 65 are already protected.This directly contradicts the previously announced position and it seems from the draft that, as a result, many notices already issued will have to be withdrawn.

The relevant section of the draft regulations reads as follows:

Transitional provisions
5.—(1) Despite regulations 2 to 4, the provisions mentioned in paragraph (2) continue to have effect in relation to the employment of a person if—
(a) notification in respect of that employment has been given under paragraph 2 or 4 of Schedule 6 to the Employment Equality (Age) Regulations 2006 before the date of the commencement of these Regulations, and
(b) that person will attain the age limit during the period that begins with that date and ends with 30th September 2011.

It is difficult to see how the regulations as drafted can conceivably cover those who are already 65 by the commencement of the transitional period. According to the explanatory note the new regulations will come into force on 6 April and that, at least, is consistent with the Government’s previous announcements.

Equality Act – positive discrimination

Posted on January 23, 2011 by Martin Malone

On Sunday 23 January the Daily Mail published an article under the heading “Equality Madness” in which it said that the government is spending tens of millions of pounds in order to comply with the terms of the Equality Act 2010. Examples referred to include £100,000 spent on a DEFRA report investigating how efforts to boost Britain’s coastal fish stocks would affect minority communities including the Chinese, homosexuals and Welsh speakers and a leadership course for NHS managers designed for gay, lesbian, bisexual and transsexual employees.

While the wider debate on such matters will no doubt continue, employers need to be alert to the changes which impact on workplace arrangements and potential issues arising in an employment law context.

In early December 2010 equalities minister Lynne Featherstone made a speech in which she announced that employers will be able to take “positive action” to achieve a more balanced workforce by giving jobs to people from ethnic minorities, homosexuals and people with disabilities. Companies which fail to promote a fairer deal for women could be “named and shamed”. She indicated that leading companies would be required to promote more women to board level and that there may be a requirement to disclose salaries with a view to identifying pay gaps if the information is not provided voluntarily. Details of the strategy can be viewed here.

The aspirations set out in the strategy have now crystallised in the form of implementation of new provisions in the Equality Act 2010 which will come into force on 6 April 2011. On 12 January the government published Guidance for Employers on how changes to allow “positive action” will be allowed as a result of the changes. Examples include steps to women-only development programmes with a view to increasing the number of women managers, appointing a woman ahead of a man if two candidates for a post “could do the job equally well” and appointing a Muslim candidate ahead of a non-Muslim candidate “of equal merit” if the workforce has an under-representation of Muslims in an area with a high Muslim population. These changes to current provisions will be achieved by effectively preventing the unsuccessful candidate from making a claim in such circumstances.

However, employers must “reasonably think” that people with a protected characteristic are under-represented in the workforce, or suffer a disadvantage connected to that protected characteristic. There must be some form of documented record to demonstrate that this thought process has been applied. The guidance suggests:

“Some information or evidence will be required to indicate to the employer that one of those conditions exists – but it does not need to be sophisticated statistical data or research. It may simply involve an employer looking at the profiles of their workforce and/or making enquiries of other comparable employers in the area or sector as a whole. Additionally,it could involve looking at national data such as labour force surveys for a national or local picture of the work situation for particular groups who share a protected characteristic. A decision could be based on qualitative evidence which may be obtained in various ways, for instance through discussion with workers or their representatives.”

Another important development in April is the introduction of the new “equality duty” for public sector employers and employers who rely on public sector funding. More specifically the equality duty is a duty on public bodies and others carrying out public functions. Its aim is to embed equality considerations into the day to day work of public bodies, so that they tackle discrimination and inequality and contribute to making society fairer. The general duty requires such employers to have “due regard” to the need to eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010; advance equality of opportunity between people from different groups; and foster good relations between people from different groups. Detailed guidance is available here.

newsletter – errors in the Equality Act?

Posted on November 24, 2010 by Martin Malone

Has Parliament (and the law draftsman) got it wrong?

Our October newsletter was largely given over to looking at the new Equality Act. From 1 October 2010 this has replaced in one single Act the previous mish-mash of anti-discrimination Acts and Regulations enacted since 1970 so that the old Equal Pay Act, the Sex and Disability Discrimination Acts, the Race Relations Act, the age discrimination regulations and so on are all replaced. In most cases the practical effect of the changes for employers and employees will be negligible or non-existent although (as noted in last month’s newsletter) there are some important conceptual changes and of course all the section and paragraph numbers are different.

This note considers a couple of anomalies which have crept in with the new wording.

The first is of considerable practical importance. It concerns “out of court” agreements made between employers and employees when settling disputes. The basic law remains unchanged: such agreements are generally not fully valid unless either an ACAS conciliation officer has been involved or specified statutory conditions have been complied with. The specified conditions which ensure that a “compromise agreement” of an employment dispute will be fully valid include that the agreement must be in writing, that it must relate to specified problems and that the employee must have received advice about its terms and effect from an independent adviser.

The first of the two anomalies noted here concerns qualification as an ”independent adviser”. Unfortunately the draftsman of the Equality Act 2010 has used a slightly different definition from the one used in the now replaced anti-discrimination Acts and regulations. The new definition specifies that a person cannot be an “independent adviser” for this purpose if he or she is acting for a “person who is a party to the contract or the complaint” (anoraks should go to Equality Act 2010 s.147(5)(d)). If the wording means what it says, it it is impossible for the employee to receive advice from an “independent adviser” because the adviser does not count as independent if he or she is acting for the employee! The result, if this means what it says, is that compromised agreements can no longer be valid in discrimination cases .

No doubt the draftsman intended to specify that a person cannot be an “independent adviser” if he or she is acting for the employer. That was the case in the now replaced anti-discrimination Acts and regulations and is still the case for compromise agreements settling unfair dismissal and other non-discrimination complaints under the Employment Rights Act 1996.

The Law Society has already notified the government of its concern on this issue, so hopefully this first anomaly will soon be corrected. And anyway in the past judges have shown themselves adept at inventing ingenious ways of correcting mistakes made by Parliament in the wording of Acts, so perhaps the courts and tribunals will find a way of sorting this matter out if the government does not do so.

A second anomaly in Equality Act 2010 is unlikely to be of much practical importance. It concerns the time-limits for presenting discrimination claims to an employment tribunal. There is no change to the basic time limit which remains at three months starting with the date of the act to which the complaint relates. However there is a change to the power of an employment tribunal to extend this three months where it is “just and equitable” to do so. Under pre 1 October 2010 law this was a only a power to extend. Under the new law (again for anoraks, Equality Act 2010 s.123(1)(b)) an employment tribunal has power to set any time limit which it “thinks just and equitable”. So, at least in theory, an employment tribunal now has power to reduce the normal three month time limit for presenting a discrimination claim if it thinks that would be just and equitable.

The existence of the two anomalies noted above should not be allowed to detract from the value of the job done by those who drafted the Equality Act 2010. It is no mean feat to have replaced such a variety of Acts and regulations with a single piece of relatively short legislation. After an initial bedding in period during which lawyers and others may struggle to find their way around the new Act, what might be called this “Harmanisation Act” should be generally welcomed. If the only problems are the minor wording anomalies noted above it will be a remarkable achievement.

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 – pay secrecy clauses

Posted on October 26, 2010 by Martin Malone

The official June 2008 White Paper on the Equality Bill said that it would “ban pay secrecy and ‘gagging’ clauses which stop employees discussing pay with their colleagues”. The idea, of course, was to remove one of the practical difficulties sometimes faced by employees (generally women) seeking to bring equal pay claims on the basis that they are paid less than employees of the other sex who have been doing the same work, work of equal value or work rated as equivalent.

As eventually enacted the Equality Act 2010 does not do what the White Paper said. The basic idea is still there but the wording means that implementation of the idea is considerably more complicated than the simple wording of the White Paper suggested it would be.

On the other hand the Equality Act goes further than the extract above from the 2008 White Paper might suggest as it covers discussion of pay with third parties as well as with colleagues. Also it makes it unlawful for an employer to victimise an employee for seeking to enforce the rights it provides.

The most important difference between the original simple proposal and the eventual enactment is that the final version applies only in so far as the employee “makes or seeks to make a relevant pay disclosure”. This is defined as a disclosure “… made for the purpose of enabling the person who makes it, or the person to whom it is made, to find out whether or to what extent there is, in relation to the work in question, a connection between pay and having (or not having)…” any of the protected characteristics covered by the Act.

It is easy to see that this definition may lead to some difficulties. A pay disclosure is “relevant” only if it is made for the specified purpose. If it was made from some other purpose the Act will apparently not apply even if the information disclosed is later used for the specified purpose.

Separately but also connected with removing difficulties in the way of employees bringing equal pay claims, the Equality Act provides specific encouragement in the shape of informal “threat” of compulsion if encouragement has not worked by 2013 for larger employers (those with 250 or more employees) to publish information about differences in pay between male and female staff.

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