This was with the aim of making it easier for employers to understand discrimination legislation. The Act applies to England, Scotland and Wales and most of its provisions came into force in October 2010, with some further additions in April 2011 and some aspects being implemented through subsequent regulations.
The Act identifies nine ’protected characteristics’. These are: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.
While employees have been protected against direct and indirect discrimination on the grounds of the above for several years, the protection was extended to cover associative discrimination on the grounds of being associated with someone who has a protected characteristic, and discrimination by perception discrimination on the grounds that you think that someone may have a protected characteristic. One major change included ensuring any questions regarding disability or medical conditions are posed only after an offer of employment is made and accepted, unless related to the selection process to allow reasonable adjustments to be made for example access for the interview or unless the questions are intrinsic to the role. Guidance is still awaited to help define disability, as this term has altered a lot over the past few years.
Equal pay obviously hit the agenda again under the equality discussion and was made all the more topical by a major film Made in Dagenham. Equal pay also continued to hit the news headlines, as many cases involved large numbers of employees and, therefore, large payouts, primarily in the public sector. However, while one of the most controversial aspects of the Equality Act the ability for employers to positively discriminate when faced with two equally-qualified candidates will still come into force in April, the government has decided against some of the other provisions in the Act, such as the socio-economic duty and the ability to require employers of more than 250 staff to publish their gender pay gaps.
Actions to take
l Check your recruitment documents carefully. Ensure that any application forms or interview checklists do not ask pre-employment health questions. Ensure that any pre-employment health questionnaires are only sent out after an offer has been made and accepted.
l Review your recruitment material for example, adverts, information for candidates, application forms and any online tests to ensure that they are accessible to all.
l Check your policies, employee handbook and any template letters to ensure they comply with the current Equality Act.
l Ensure your employees and managers are fully aware of the Act and its implications, including the new elements of discrimination by perception and association.
l Be aware that any ’gagging clauses’ in contracts are unenforceable if the employee reveals his/her salary as part of a ’relevant pay disclosure’ if it is made to assist in discovering whether there are differences in pay related to a protected characteristic.