Legal Article - Employment Law

The Equality Act 2010

The New Equality legislation comes into force on the 1st October 2010 and will affect the way you recruit personnel.

The Act introduces what it refers to as ‘Protected Characteristics’ (age, disability, gender reassignment, marriage and civil partnerships, pregnancy and maternity, race, religion or belief, sex, sexual orientation).  These are the same as individual legislation now covers.

It will now be unlawful discrimination if:

• You treat a person differently just because of a protected character. This could include not interviewing a person because they are disabled, gay, pregnant or of ethnic origin.

• You must not do something to anyone which has a worse impact on them because they have a protected characteristic unless you can show that what you have done is objectively justified.

• You treat a disabled person unfavourably due to something connected to their disability which cannot be objectively justified.  For instance the failure to consider a clinically obese person for a job is unfavourable treatment arising from disability.

• You treat a person worse than another because they are associated with a person who has a protected characteristic.  For instance failing to give a job to an applicant because they have a disabled child.

• You incorrectly think they have a protected characteristic so do not appoint.  For instance, you heard they were in a civil partnership and must therefore be gay.

• You harass them.  For instance, telling jokes about their religion or beliefs during interview.

It will also be an offence if a disabled applicant asks for information about the job and requests an application form in an alternative format and you fail to provide it.  This would be classed as a reasonable adjustment.

If an applicant needs reasonable adjustments to attend interview then you must make them but you do not have to appoint if they are not the best person for the job, even after taking into account any reasonable adjustments necessary to the job. 

If after reasonable adjustments they are the best person then you must appoint.

Another area of vulnerability is asking questions about a person’s health and/or disability.

You are no longer permitted to ask an applicant any question about their health or disability until they have been offered the job.  This includes their absence record.

This restriction applies to the application form and also at the interview.

The only exemption likely to be applicable is where you need to ask about health or disability to ensure that they are able to carry out a function that is essential to the job. 

For instance, if they suffer from epilepsy when they have to work in an environment with flashing lights.  In such circumstances you need to know whether they can carry out the function with reasonable adjustments in place.

The way forward will now be to ask applicants to send in a CV setting out their experience and ask for a covering letter stating why they would be suitable for the job.  That way you need not ask about their health or disability and will only judge on skills.

NB:  This is one of the most important changes to immediately affect employers.  Remove health related questions from your application forms.

In addition, one extra important point is that The new Act outlaws terms which require pay secrecy among employees (but secrecy to outsiders is allowed).

 

Published: 24 Mar 2011

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