The Equality Act - how will it affect business?
The majority of the provisions of the Equality Act 2010 came into effect earlier this month. How will they affect growing businesses? Jamie Gamble, associate in the Employment team at Ward Hadaway, takes a look.
MUCH has been made in the media about the impact of the Equality Act, introduced on October 1.
In the most part the provisions will not have that great an effect on a day to day basis.
However, there are some changes which companies will need to make a note of. The first of these affects Pre-Employment Health Questionnaires, or PEHQs.
The Act does not ban the use of these for job applicants. However, if employers ask questions that do not fall within the specified permitted purposes then, although it will not be an act of discrimination per se, it will expose them to an increased risk of claims of direct disability discrimination and their practices could potentially be investigated by the Equality and Human Rights Commission.
The permitted purposes include finding out whether a job applicant would be able to participate in an assessment to test their suitability for the work, making reasonable adjustments to enable the disabled person to participate in the recruitment process and finding out whether a job applicant would be able to undertake a function that is intrinsic to the job.
A PEHQ can also be used for monitoring diversity in applications for jobs, supporting positive action in employment for disabled people and enabling an employer to identify suitable candidates for a job where there is an occupational requirement for the person to be disabled.
With this and other provisions in mind, employers should review their PEHQs and draw up new lists of questions that are related to the different roles in the organisation.
While asking pre-employment health questions that are not for a permitted purpose will not in itself amount to discrimination, acting on them may well do.
The Equality Act also allows the Equality and Human Rights Commission to investigate the use of pre-employment health questions which are not for a permitted purpose and take enforcement action in its own name, even where no discrimination can be shown.
The part of the Equality Act which has received most media attention is that relating to harassment.
Under the Act, conduct can amount to harassment if it is related to: age, sex, race, disability, sexual orientation, religion and belief. Therefore, that characteristic does not have to be the reason for the conduct, it just has to be related to a protected characteristic. For example, if an employee tells a racist joke, this might be conduct related to race and could amount to harassment, regardless of the race of the person who it offends. This is one reason why some media reports have labelled the Equality Act as “the death of the office joke”.
An employer will be deemed to be harassing an employee if a third party harasses the employee in the course of employment and the employee has been harassed by a third party on at least two other occasions and the employer has failed to take reasonable steps to prevent the third party from doing so.
Employers must ensure that they take any acts observed or reported seriously. An appropriate system of reporting must be in place to avoid claims for third party harassment.
For further information on any of the issues raised by this article, please contact Jamie Gamble on 0191 204 4456 or email jamie.gamble@wardhadaway.com
