Q.I am a small business owner and am wondering what exactly is the 2010 Equality Act?
A.The new Equality Act is coming into force on 1st October. It compiles the last 30 years of gender, disability, sexuality, religious and ethnic discrimination legislation into a single act – with some added extras. The Department for Equalities calls this
“streamlining,” implemented to simplify the numerous acts and make life easier for employers and employees. Whilst this might be the case, businesses of all sizes are going to need to pay attention to those added extras. For instance, pay secrecy clauses are going to become unenforceable. “Gagging” clauses preventing employees discussing their pay will no longer be allowed. So be prepared for your staff having the ability to find out how much their colleagues are earning. Health checks prior to appointing staff will also no longer be allowed unless you can prove that being physically fit is essential for the job.
Q.Will I need to implement any changes to my business?
A.Perhaps an obvious point, but if there are any disparities in your pay scales between, for example, men and women, you should be aware that your staff will be in a stronger position to sue you. Some City law firms have suggested the removal of the secrecy clauses could open the floodgates to mass equal-pay claims. Reviewing your pay scales, picking out any areas of contention and discussing it with staff might be a good idea. This will prevent possible lawsuits and potential PR disasters, particularly as the new legislation protects employees who divulge their pay terms to the press.
The most tangible area you will need to make changes in is scrapping any pre-appointment health checks you might have. If you think you qualify as an exception, the Department for Equalities has guidelines detailing these on their website. If you are still unsure of your position it might be best to consult a lawyer.
Lisa Mayhew of the Jones Day law firm says it is also a good idea to touch up your company’s equality policy to check you are using all the correct terminology. Whilst it is not a legal requirement to have a written policy, Mayhew says it is certainly best practice. HR consultancies wanting your custom will tell you that the Equality Act is terribly complicated and that you will need their help. Mayhew says “seek legal advice if you encounter a very specific issue, but generally speaking there is a lot of free guidance out there. The Equality and Human Rights Commission and the Disability Rights Commission provide free templates on their websites for these things.”
Q.Are there any laws about enforcing positive discrimination?
A.The Act allows for positive discrimination for candidates who are equally qualified. It remains illegal to promote or appoint someone for the sake of diversity who is less qualified than another candidate.
Mayhew warns that companies should look more closely at their employment practices as the Act has been seen as “a bit of a sea change” and might well bring equalities issues “very much under the microscope.” “Employees presenting a potentially prejudicial issue, who personally believe that they’ve been discriminated against, may well point to the company’s other behaviours such as the level of – say female representation – on the board. Women might feel encouraged to pursue a legal action”