Equality Act 2010 sets new traps

Posted by HRzone.co.uk in In practice, In business on Mon, 04/10/2010 – 10:54
• Equality Act 2010 consolidates nine human rights acts into one law
• Introduces principle of discrimination & harassment by association
• Employers now liable for actions of third parties
• Tribunal powers increased and new clauses on pay transparency

The Equality Act came into force on 1 October. HRzone.co.uk editor Charlie Duff highlights a few of the new danger spots for employers.

The new Equality Act is designed to consolidate nine separate discrimination laws such as the Race Relations Act 1976 and the Disability Discrimination Act 1995 into a single act, but includes several changes that could come as an ugly surprise to unwary employers down the line.

Equality Act preparations
1. Review existing policies in all areas of discrimination to ensure they are still relevant.
2. Ensure employees with line manager and interviewing responsibilities are trained to recognise discrimination and ensure compliance with the law.
3. Ensure staff are trained so that they know what to do if they experience harassment or discrimination.
4. Depending on the nature of your activities, make clients, customers and commercial contacts that inappropriate behaviour towards staff will not be tolerated.
Source: ACAS

With many employers looking at cost cutting, job applicants and employees may be more willing to take advantage new protections provided by the act. Employment law specialists alerted HRzone to some of the key points to consider to minimise the risk of successful discrimination claims.

Discrimination & harassment by association

Among its various provisions, the act imposes new restrictions on what questions employers can ask about job candidates’ health and includes clauses that pave the way for discrimination and harassment claims based on association and perception.

The new provisions are intended to cover situations where discrimination or harassment is based on the victim’s association with someone who has a protected characteristic (such as a disabled child) or because the victim is wrongly thought to have a protected characteristic (eg a particular religious belief). “This change substantially widens the class of people able to bring a claim and is likely to result in a significant increase in the number of claims brought,” warned Lisa Mayhew, a partner with law firm Jones Day.

Employers now liable for actions of third parties

The Act will also allow an employee to bring a claim against their employer for the acts of a third party, such as a client, customer or colleague, where the employee has been harassed on at least two occasions and their employer is aware that it has taken place and has not taken reasonable steps to prevent it from happening again. “These new provisions may, depending on how widely they are interpreted by the tribunals, have the potential to bring about a major change in the claims which can be brought under the banner of ‘harassment’,” warned Mayhew.

Increased tribunal powers

The Equality Act has handed broader powers to Employment Tribunals to advise employers on their practices and procedures following successful claims. “The net result of these measures is to create traps for the unwary,” said Rachel Dineley, employment partner at law firm Beachcroft LLP. “Employers should take the opportunity to audit their current practices now to minimise their risks in this area. With many organisations undertaking some form of restructuring, the scope for expensive errors will increase. Ironically, employers could incur, rather than save, costs if they are not compliant with the new law.”

Pay, transparency and secrecy clauses

The act also renders unenforceable secrecy clauses that prevent employees from discussing their pay if the restriction is seen as an attempt to conceal pay discrimination. “The Act does not ban the inclusion of such clauses in employees’ contracts – it only makes them unenforceable and protects employees against victimisation following a relevant pay disclosure,” said Mayhew. “Employers will continue to be able to require employees to keep their pay rates confidential, for example from competitor organisations.” The equal pay provisions within the act will make it easier for employees to bring claims.

Transitional arrangements

With the advent of the new act, discrimination that straddles 1 October 2010 can now form the basis of a claim under the 2010 regulations covering the whole period of discrimination, without having to rely on the old law. But the transitional provisions do not apply to discriminatory acts taking place wholly before 1 October 2010. Employees may still bring claims in respect of such acts under the outgoing legislation, even if their claim is lodged after the Act has taken effect.
Not all of the draft provisions of the Equality Act have into force. Pending further consultation on public sector equality and socio-economic duties, additional measures under the act will follow in 2011.
The Equality Act 2010 provoked a critical response on AccountingWEB.co.uk’s Any Answers page. Leading the opposition was Cymraeg_draig, who warned, “As this new law stands employers could be sued if a staff member makes a joke which another staff member (who doesn’t even have to overhear the joke) feels offended by it.”
Looking on the bright side, he added: “Under the wording of this act, it would appear that if HMRC write a letter to your client and you consider it to be ‘offensive’ or ‘distressing’ then you could sue HMRC.”
This article is based on an extract from the HRzone article Equality Act comes into force: overview.