The New Equality Act 2010

       An employer rejects someone for a management job just because they are 25 years old and much younger than the people they would be managing.

In this newsletter we have tried to lay out what the new act affects and how to avoid the claim of discrimination being levied at your organisation. The Act covers many areas of recruitment and it is important that potential employers review the following aspects of recruitment:

·         Thinking about what the job involves and what skills, qualities and experience a person will need to do it

·         Job adverts

·         Application forms and CVs

·         Shortlisting applicants to meet or interview

·         Interviews, meetings and tests

·         Recruiting women who are pregnant or on maternity leave

·         Equality good practice

·         Using positive action to recruit a wider range of people

·         Using monitoring forms during recruitment

We won’t be covering all of these in this newsletter but if you are unsure or require information about the wider aspects of the act such as disciplinary procedure, pay and working conditions, training, development or working hours then you will find more information at the end of this newsletter.

What does The Equality Act protect?

At the moment, there are several different laws to protect people from discrimination. We are afforded protection if we fall under the category of Protected Characteristics; those which are relevant to the act are listed below. You cannot discriminate against someone  on grounds of:

• race

• sex

• sexual orientation (whether being lesbian, gay, bisexual or heterosexual)

• disability (or because of something connected with their disability)

• religion or belief

• being a transsexual person (transsexuality is where someone has changed, is changing or has proposed changing their sex – called ‘gender reassignment’ in law)

• having just had a baby or being pregnant

• being married or in a civil partnership (this applies only at work or if someone is being trained for work)

• age (this applies only at work or if someone is being trained for work)

The Equality Act 2010 simplifies the current laws and puts them all together in one piece of legislation. Also, it makes the law stronger in some areas. Most of the Equality Act will start to apply in October 2010 and this newsletter covers the main changes coming into effect then and the changes/adjustments that must be made to comply with the Act.

Among the key provisions affecting interviewing and recruitment are the following:

Pre-employment health questionnaires: This new provision prohibits employers asking job applicants questions about their health and whether they have a disability.

Discrimination by association or based on perception: The ban on discrimination by association will be extended to protect spouses, partners, parents and carers who look after a disabled person or older relative from discrimination.

How this affects the interview

Unlawful discrimination can take a number of different forms:

·           You must not treat a person worse than someone else just because of a protected characteristic (this is called direct discrimination). One of the most obvious infringements of this is asking someone if they were thinking of having kids in the next few years.

·           You must not do something to someone in a way that has a worse impact on them and other people who share a particular protected characteristic than on people who do not have that characteristic. Unless you can show that what you have done, or intend to do, is objectively justified, this will be indirect discrimination. ‘Doing something’ can include making a decision, or applying a rule or way of doing things. You insist that all job applicants must be able to drive even though the role can be carried out using public transport.

·           You must not treat a disabled person unfavourably because of something connected to their disability where you cannot show that what you are doing is objectively justified. This could apply if you turn down an applicant who has mobility disability even though this doesn’t directly affect their ability to do the job.

·           You must not treat a person worse than someone else because they are associated with a person who has a protected characteristic; e.g. you don’t employ someone because they are a carer for someone with a disability.

·           You must not treat a person worse because you incorrectly think they have a protected characteristic (perception discrimination) e.g. you think that someone looks younger than they are so you don’t employ them.

In addition, to make sure that disabled people have the same access, as far as is reasonable, to everything that is involved in getting and doing a job as a non-disabled person, you must make reasonable adjustments.

If an applicant asks for information about the job and the application form (if there is one) in an alternative format which they require because they are a disabled person then you must provide this, so long as it is a reasonable adjustment – and it is likely to be.

If an applicant needs reasonable adjustments to participate in any interview or assessment process, then you must make them. When you assess an applicant’s suitability for the job you must take account of how reasonable adjustments could enable them to do the job.

If, after taking reasonable adjustments into account, they would not be the best person for the job, you do not have to offer it to them. But if they would be the best person with the reasonable adjustments in place, you must offer them the job. In any event, it would make sense for you to do this, as you want the best person for the job.

Tip for avoiding discrimination

Ask questions which relate to the job.

It is a myth that equality law says you must ask everyone exactly the same questions. There is no reason for you not to ask about things that are different for a particular candidate, or follow up an applicant’s answers with questions that relate to what they have just said.

However, you should be focusing on the same broad subject areas with each applicant. This is because otherwise you may be applying different standards to different applicants based on their protected characteristics, and this might lead to unlawful discrimination.

No-one else can ask these questions on your behalf either. So you cannot refer an applicant to an occupational health practitioner or ask an applicant to fill in a questionnaire provided by an occupational health practitioner before the offer of a job is made (or before inclusion in a pool of successful applicants) except in very limited circumstances, which are explained next.

The point of stopping employers asking questions about health or disability is to make sure that all job applicants are looked at properly to see if they can do the job in question, and not ruled out just because of issues related to or arising from their health or disability, such as sickness absence, which may well say nothing about whether they can do the job now.

You can ask questions once you have made a job offer or included someone in a group of successful candidates. At that stage, you could make sure that someone’s health or disability would not prevent them from doing the job. But you must consider whether there are reasonable adjustments that would enable them to do the job.

Answers to the earlier quiz

ALL of the previous examples could be classed as discrimination under current UK law.  For more information refer to the following websites.  Remember these laws are there to protect us ALL and to give us a fairer playing field in all aspects of employment.

For Further Information

For more information these websites will give you the answers you are looking for.

Let’s start off with our own website. We’ve tried to condense the minefield that is Discrimination Legislation to the essentials that most organisations need to know.

www.totalsuccess.co.uk/equalityact.htm

Worth making sure you know ACAS guidelines as these are the guys who set out the recommendations by which UK employment tribunals base their judgements

www.acas.org.uk/index.aspx?articleid=3017

This is the website for the Equality and Human Rights Commission. This is probably the most comprehensive of all information available on the web for clear and informative information regarding the Equality Act.

www.equalityhumanrights.com/advice-and-guidance/new-equality-act-guidance/equality-act-2010-guidance

For the question about Sikh’s and Personal Protective Equipment – this gives the rationale behind that question and more.

www.europarl.europa.eu/stoa/publications/studies/19992001_en.pdf

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