Martin Tolhurst

Legislation changes that could cost you and your company

The core provisions of the Equality Act came into force on the 1^st October 2010 with further provisions to follow in April 2011 and yet more due in 2012 and 2013.  The Act consolidates all current discrimination legislation into one statute and aims to strengthen and develop the law on equality.  The Act has been hailed as a landmark move to harmonise discrimination legislation and to strengthen the law to support progress on equality, although it is fair to say it has not been warmly received by everyone.

 

The foremost change is the introduction of the concept of ‘protected characteristics’ instead of discrimination for: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race (defined to include colour, nationality and ethnic or national origins); religion or belief, sex; (i.e. gender) and sexual orientation.  These are the grounds that give an individual legal protection. 

These on the face of it appear to be sensible consolidating changes but the fundamental difference now is that the focus of attention will be on the protected characteristics rather than (as previously) on the individual. This has particular connotations in the context of associative discrimination whereby it is now possible for example to bring a claim under disability discrimination and the individual complainant does not have to have a disability but rather that they are treated less favourably due to their association with someone who has a disability.

Perceptive discrimination already applies to age, race, religion or belief and sexual orientation but has now been extended by the Act to cover disability, gender reassignment and sex.

Perhaps the most talked about changes are the new provisions under the Act regarding pre-employment health questionnaires, as it is now unlawful to ask a job applicant to complete a health questionnaire or indeed to ask them about their health generally before making a job offer unless such information is intrinsic to the job. There are exceptions, and questions that are permitted are those regarding health and disability, where this is in order to clarify whether reasonable adjustments for an interview are required or to ascertain the prospective employees ability to carry out particular functions fundamental to the role. For example where a health issue might prevent an individual from being able to carry out heavy lifting.

One aspect that has not changed is that employers will still be permitted to ask questions that are intended to enable the employer to monitor diversity in the recruitment process.

However, going forward, it is going to be even more important for employers to consider very carefully whether any questions relating to a job applicants health or disability are appropriate.  Central to this is the issue of whether such questions relate fundamentally to an applicants ability to perform the role for which they are being recruited. 

Clearly this is a worrying development for employers and the spokesperson for the Institute for Directors said recently in the Daily Telegraph “The health provision is undoubtedly an extra burden on businesses.  All business will need to be very clued up on the ramifications of what the new regulations are…”

Initial reactions from the business world to the Equality Act in general have not been enthusiastic with various business groups arguing that the new legislation will impose a heavy burden on employers of all sizes at a time when they are still trying to recover from recession.  The director general of the British Chamber of Commerce has said of the Act “At a time when the government is trying to create as many jobs as possible in the private sector this legislation will put people off for fear of getting it wrong.”

This is of course coupled with that unknown quantity of judicial interpretation of the new legislation, which can only serve to increase the reservations that the business world and employers have.