Thursday, 28 October 2010

It's all about discrimination: New Equality Act has come into force on October 1, 2010

From 1 October 2010, the Equality Act 2010 has come into force. The Act unifies all different forms of discrimination (age, disability, race, sex, gender reassignment, religion or belief, sexual orientation, marriage and civil partnership, pregnancy and maternity)  under the same umbrella. It also makes the law stronger (!) in some areas. Main changes are:
  • Third party harassment (different target): Employers can be sued if anyone (e.g. an employee) takes offence at something (e.g. a joke) said by another party (e.g. a customer), even though the  offensive material was not directed at the person who makes the complaint. For example, an employee can make a claim for harassment if another employee is harassed by a manager because of a disability. The unaffected employee has the right to claim on the grounds that the harassment of the disabled member of staff has lead to an offensive work environment.

    Comment: Aim is to force employers to establish zero tolerance towards potentially offensive behaviour. Valid question: How can possibly employers police the measure and hence steer clear possible employment tribunal claims?

  • Harassment by or against third parties: Employees can sue their employer if they were offended by people who are not employees (such as customers or contractors), if the employer does not take steps to address this when they become aware of it. Customers could also have a claim against the employer if they were offended by a member of staff.

    Comment: Aim is to reduce discrimination at workplace by everyone. Employers could rightly ask: What control do they have over third parties like customers or contractors?
  • Discrimination by association: An employee will be able to sue their employer if they believe they have been discriminated against because of their association with someone else (for example, an employee is refused flexible working arrangements, even though it has been offered to others, because that employee has caring responsibilities for a child or spouse with a disability and the employer believes they may not be dedicated enough to their work).

  • Comment: Aim is to reduce discrimination at workplace. Are employers supposed to ask their staff intrusive questions to ensure they steer clear of offence or discrimination?

  • Discrimination by perception: Employees will be able to sue if they are treated unfairly because the employer or other employees think - rightly or wrongly - that they have a protected characteristic (for example, an employee is discriminated against because the employer thinks he is gay).
  • Indirect discrimination: If the employer has a condition, rule, policy or even practice that applies to everyone, but disadvantages a certain employee. Can get away with, if the employer shows that has acted fairly and reasonably towards achieving a legitimate business aim, other than solely reducing costs.
  • Pre-employment health secrecy: Employers will not be able to ask job applicants questions about their state of health except to help them decide  whether the applicants could carry out functions essential to the job (for example, where a role involves heavy duty packing).

    Comment: Aim of the measure is, supposedly, to protect people from health and disability discrimination. However, employers will be unable to spot any employees who are not fit for the job, or would be unreliable, due to ill health.

  • Equal pay direct discrimination: A claim of unequal pay can be made not only by comparison with a real person of the opposite sex in the same employment, but even if no real person can be found, by proving what their remuneration would be if they were of a different sex. See example in next point.

  • Pay secrecy: Employees will be free to discuss their pay or bonuses and employers cannot enforce secrecy clauses in employment contracts where they are related to protected characteristics such as race or sex. For example, a male employee working in female environment and doing same job as his female colleagues has a right to make a claim to equal pay as the opposite sex and his employer cannot prevent him from talking to his colleagues about pay differences.

    Comment: Aim of the measure is, supposedly, to end pay discrimination. Employers fear this could lead to rash of claims for pay rises or even to claims if they believe they have been discriminated against.
  • Victimisation: When an employee is treated badly because they have made or supported a complaint or raised a grievance under the Equality Act (unless maliciously made or supported an untrue complaint), they have protection.

  • Employment Tribunals: Powers extend not only in fining employers, but also in (effectively) forcing employers to change work practices if found guilty of discrimination, not only in relation to the claimant but to the other employees too.

    Comment: Employers fear this would amount to Tribunals interfering with the way businesses are run.

  • Disability: the definition of disability changes, making it easier for a disabled person to prove disability. A disabled person only needs to show that their physical or mental impairment has a substantial and long-term effect on their ability to carry out normal day to day activities, such as using the phone, reading a book or using public transport.

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