Laurence Gouldbourne
On 1 October 2010, the Equality Act was enacted. This Act is one of the most far-reaching in the area of discrimination legislation for businesses. In practice, it has replaced all existing discrimination laws with one statute. But what exactly does it mean for anyone running a small and medium-sized enterprise (SMEs)?
Below is a summary of three of the key changes as it affects SMEs. More info is at http://www.bllondon.com/ENABLE/Lawandregulations/TheEqualityAct2010.aspx
For a more detailed explanation, please go to the Equality and Human Rights Commission (EHRC) website at http://www.equalityhumanrights.com Three of the main changes include:
a) Protected Characteristics
b) Employers potentially liable for third party harassment
c) Health Enquiries
A.Protected Characteristics
Historically, employers have considered discrimination in relation to three ‘protected characteristics’ i.e. disability, race and sex. From 1 October 2010, an individual can bring a claim of discrimination on any two of the following protected characteristics:-
age; disability; gender reassignment; marriage and civil partnership; race; religion or belief; sex; and sexual orientation.
EXAMPLE: A blind White man in his 60s believes that his employer has discriminated against him. His ‘protected characteristics’ include his age (60s), his disability (blindness) and his gender (male). In this instance, he could potentially bring a case because of:
i) his age and disability;
ii) his disability and his gender; or
iii) his age and gender.
However, he could not bring a potential claim against his employers on all three protected characteristics. It is worth noting that the law has been extended to permit complaints of associative discrimination and perceived discrimination to be made.
Associative discrimination is where an individual is discriminated on the grounds that they are caring for disabled person (disability) or an elderly person or a child (age). This does not mean that, for example, carers have can claim discrimination on account of their caring responsibilities; what it does mean however is that individuals with caring responsibilities should not be treated less favourably than individuals without caring responsibilities.
EXAMPLE:Company X has to make staff redundant. Employee A has had time off to care for her disabled child. When selecting staff for redundancy, Company X could not make Employee A redundant just on account of her time off to support her disabled child. This could potentially be viewed as discriminatory.
Perceived discrimination is where someone is wrongly regarded as being gay, lesbian or bisexual, or where they are treated less favourably because they are wrongly thought to be of a particular age or holds particular religious.
EXAMPLE: Employee A harasses Employee B by calling them a ‘Paki’ even though they are from another country on the sub-continent.
B. Employers potentially liable for third party harassment
Under the new Act, employers are liable for third party harassment of employees – i.e. harassment by customers, clients, suppliers, etc – unless the employer can show that it had taken reasonable steps to prevent the third party from doing so. This change in the law applies to all eight protected characteristics. However, there is the ‘three strikes rule’ – this is where an employer will not be liable for third part harassment unless it knew that the employee was harassed in the course of their employment on at least two other occasions by a third party.
EXAMPLE: Employee D is harassed by client E. Employee D says nothing to his employer about the harassment. In this instance, the employer is not liable.
Then, Employee D is subsequently harassed on two more occasions by client E. On both occasions, Employee D reports this to his employer – who does nothing. If it occurs a third time and is reported – and the employer does nothing – then the employer is liable for the harassment actions (or inactions) of the third party.
C. Health Enquiries
Section 60 of the Equality Act relates to health-related enquiry for job applicants. This area of the law can be tricky as there is a lack of clarity and there is not, as yet, any robust guidance from government or the courts.
In the past, employers may have sent out a pre-employment questionnaire to job applicants to see if they could ‘do the job’. However, there was a danger that such questions may have unintentionally discriminated against Deaf and disabled people, as often, there was little indication as to what reasonable adjustments an employer could make to facilitate opportunities for applicants with this protected characteristic
What employers now need to do is to establish whether prospective applicants are able to carry out ‘functions’ that are ‘intrinsic’ to the job and, where necessary establish whether there is any requirement to make reasonable adjustments to the recruitment process.
EXAMPLE: Employer S has a vacancy for a machine operative at a nut factory. The work involves handling nuts, bending and lifting. Asking a health-related question prior to any job interview (or offer) such as ‘Do you have nay medical conditions that might affect your ability to perform the following functions of the job?’ may be potentially discriminatory unless it can be demonstrated that those functions are definitely intrinsic to the job.
In this instance, asking a question along the lines of, ‘Do you have a nut allergy?’ is appropriate as it is ‘intrinsic’ to the functions of a job as a machine operative. But what about ‘bending and lifting’? Is this ‘intrinsic’ to the job? Could employers make a reasonable adjustment for this ‘function’? In this instance, it may be prudent for employers to make conditional job offers subject to health questions.
The Equality Act is a step forward in harmonising the UK’s discrimination laws. However, there are areas of the Act that are currently subject to further consultation with key stakeholders. In the months to come, the EHRC will produce more guidance on some of the major policy areas and changes as it affects SMEs.
Laurence Gouldbourne, Head of Diversity and Equality at Business Link In London (BLIL)