Thursday, 18th November 2010
The Equality Act came into force on the 1 October 2010 in spite of fears that this legislation – the work of the previous Labour Government - would be scuppered by the Conservative/Liberal Democrat coalition.
The scope of the Act is wide, seeking to condense and simplify measures from a number of pieces of legislation, some up to 40 years old. However, it is also intended to offer enhanced protection to employees who may face discrimination.
By introducing the concept of a ‘protected characteristic’, the Act brings UK law into line with many of our key economic competitors. ‘Protected characteristics’ are aspects of a person’s identity which it is believed may lead them to be discriminated against but by which he or she is now protected by law. The complete list comprises: disability; gender reassignment; pregnancy and maternity; race, including ethnic and/or national origins, colour and/or nationality; religion and/or belief and sex and/or sexual orientation.
That people within these groups are, and should be, offered protection is nothing new, but the Act does introduce new, or refine old, elements, that are of interest to those who work in the care industry.
Pre-employment health questionnaires
Any employer seeking to interview and/or engage new employees will have to show that any questions they ask, or any questionnaires the candidate is asked to complete, regarding disability or health are specifically relevant to the physical capabilities required to undertake the job. i.e. employers retain the right to seek information regarding histories of musculo-skeletal injury of candidates who are likely to be involved in the manual handling of people.
Discrimination arising from disability
Under previous legislation, those with disabilities may have had to prove that any disability adversely affected a specific facility for instance hearing or mobility. However it is easier for people to establish their disabled status and their legal rights to protection from discrimination under the new Act.
The disabled employee need only demonstrate they suffer extensive and protracted negative effects as a result of their disability in respect of their ability to undertake normal day to day activities for instance using the phone or pushing a wheelchair.
It is now also possible to discriminate against someone not only as a result of their disability but as a result of ‘the consequences’ of that disability. A dyslexic, for instance, is protected from discrimination arising from their dyslexia but also from discrimination arising from consequent poor spelling.
Discrimination by perception
Individuals are protected from discrimination not only because of their ‘protected characteristics’ but because of ‘protected characteristics’ others believe they may have. A male nurse/carer, for instance, who suffered discrimination as a result of perceived homosexuality would be protected by the Act whether or not he was actually homosexual regardless of his sexuality.
Discrimination by association
It is now possible for employees to be discriminated against as a result of their association with others who suffer disabilities. It would be unreasonable, for instance, for an employer to decline flexible working terms to an employee who had responsibility for the care of a child, husband or wife who has a disability when others have been offered such terms.
‘Indirect discrimination’ likewise has been broadened to include disability and gender reassignment. ‘Indirect discrimination’ occurs when a rule or policy is introduced in the workplace which, whilst it applies to everybody, creates a disadvantage for those with one or more particular ‘protected characteristic.’
Harassment and victimisation
The Act introduces and defines a new concept i.e. ‘harassment by a third party’. Employers must take appropriate action to deal with individuals, even suppliers and customers, who harass their staff or they may be held liable.
Having drawn current laws on discrimination into the Act and broadened the range of protections available to employees with ‘protected characteristics’, the government has attempted to create a fairer environment for all those in the workplace. It may be advisable for employees to review and update current grievance processes and equal opportunities policies. Either way it would take a brave person to bet against the possibility of increased claims as a result of this legislation.