Legal experts have warned that the Government's late issue of guidance on the Equality Act only a week before it is implemented, causing could cause confusion.
The Equality Act 2010 comes into force on 1 October. It rationalises and codifies a range of employment regulations and introduces new responsibilities on employers.
The commencement order issued this week has indicated that acts of discrimination that were carried out before 1 October 2010 will continue to be dealt with under the old laws. Those that continue after 1 October will be heard using the new rules.
Employees who wish to raise complaints that are covered under both the existing laws and as part of the new Act, will have to submit claims under both the old and the new law. Guidance for employment tribunals to help them determine whether or not an employee is disabled has not yet been finalized.
Equality Act 2010: Quick Guide to changes in legislation
Changes is disability discrimination
There are several changes to current disability discrimination legislation.
1. Direct discrimination has a new definition i.e. less favourable treatment "because of" the protected characteristic of disability. This is wide enough to cover discrimination by association.
2. The Act introduces a new form of disability discrimination – discrimination "arising from" a disability. This dispenses with any need for a comparator. It only requires that the claimant has been treated "unfavourably because of something arising in consequence" of his or her disability. For this type of discrimination to occur, the employer has to know, or reasonably be expected to know, that the employee has the disability in question.
3. To receive protection from disability discrimination, an employee must show that he has a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. The list of activities, such as speech, hearing and eyesight and ability to concentrate and learn has been removed.
Third party harassment
Employers may be liable if an employee suffers harassment from a third-party related to a protected characteristic. The harassment must have taken place on two or more occasions and the employer must be aware of it. The third party harasser does not have to be the same person on each occasion.
Pre-employment health questionnaires
Employers may no longer ask candidates pre-employment health questions, unless it is necessary to do so.
The explanatory notes to the Equality Act give the example of an applicant who applies for a job in a warehouse that requires manual lifting and handling of heavy items. As manual handling is a function which is intrinsic to the job, the employer may ask the applicant questions about his health to establish whether or not he is able to do the job (with reasonable adjustments for a disabled applicant, if required). The employer could not the applicant any other health questions until he was offered the job. Employers can ask whether a job applicant has a disability that would require reasonable adjustments to be made to the recruitment process
Dual discrimination claims
The Equality Act 2010 introduces the concept of dual discrimination. This may arise where an employee who believes that he has been treated less favourably because of a combination of two protected characteristics can bring a combined claim. This is expected to come into force next year.
Gender pay reporting
The Equality Act contains a number of provisions designed to close the gender pay gap. These provisions will not come into force on 1 October 2010.
If you find yourself in such a situation whereby you feel there has been discriminatory acts within your organisation, Russell HR Consulting provides expert knowledge in the practical application of employment law as well as providing employment law training and HR support services. For more information, visit our website at http://www.russellhrconsulting.co.uk/. or call a member of the team on 0845 644 8955.
Russell HR Consulting offers HR services to businesses nationwide, including Buckinghamshire (covering Aylesbury, High Wycombe, Milton Keynes, Bedford, Banbury, Northampton, Towcester and surrounding areas), Nottinghamshire (covering Chesterfield, Mansfield, Nottingham, Sheffield, Worksop and surrounding areas).