Businesses must get to grips with changes to discrimination law or face the consequences, warns Gareth McGhee, senior partner at EM Legal following the introduction of the Equality Act 2010 at the start of October.
As well as putting discrimination laws like the Sex Discrimination Act 1975 and Race Relations Act 1976 under one roof, the Equality Act modifies and extends the protection given to existing and prospective employees.
Among the changes is the widening of the circumstances recognised by legislation in which employers may be liable for harassment of employees by third parties like customers or suppliers. In line with trends in recent employment case law, the Act will also formally enable individuals who would not directly be entitled to rely on discrimination laws to claim because of their association with someone who does qualify. For example, an employee who cares for a disabled relative or dependent may be able to claim protection under the disability discrimination provisions of the Act where such care impacts on their working life in some way.
Specialist employment lawyer, David Walton of Gorvins Solicitors, commented: “This greater protection is to be welcomed but there’s no doubt that it will catch unwary employers out. Those who believe that the Equality Act is simply a place to house our old discrimination laws are wrong.”
“Employers should make sure that they understand what the Equality Act means for them and amend their policies and procedures to reflect the changes it brings about, including the way in which they should deal with potential employees,” recommends Gareth McGhee, EM Legal.
With particular relevance to recruitment, former practices of issuing job candidates with pre-employment health questionnaires will now have to change - something which disability lobbyists will be hoping will bring about a more level playing field. Indeed, concerns that disabled people were reluctant to apply for roles, believing that their chances of getting the job were lowered by having to complete questionnaires, will perhaps now be alleviated.
Under the Act, questions about an individual’s health before a job offer is made can only be asked in certain prescribed circumstances including where information is necessary to establish the applicant’s ability to carry out a function intrinsic to the role. Employers who ignore these new provisions are expected to face an uphill struggle in defending disability discrimination claims from unsuccessful candidates.
For now, employers are being encouraged to make a concerted effort to correctly interpret and apply this new legislation, something which will only become easier once Tribunals have given their decisions in litigated cases.
“We will inevitably see legal arguments about whether employers’ health questions were appropriate or not,” comments David Walton from Gorvins. “And this will land some in hot water. On the flip side, employers may feel that their hands are tied in being able to assess the suitability of a particular candidate for a job, without fully understanding what they can and can’t do under the Act in a recruitment process. They could therefore find themselves recruiting the wrong people because they simply ask no questions at all.”
Gareth McGhee from EM Legal commented “As recruiters, we know just how important it is that employers take on the best person for the job. They can only do this by understanding exactly what the role requires. While the Equality Act poses a challenge for employers, at least in the short term, we think that it will lead to better recruitment across all sectors and industries. There is now no room whatsoever for assumptions about a candidate’s capabilities and that has to be a good thing for everyone,”
