Mark Cornish, Partner
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Most of the Equality Act 2010 is now in force despite early post election indications that it could be revised and delayed.
The Act has been billed as something of a tidying up exercise. It significantly amends (and in some cases wholly repeals) in excess of nine pieces of legislation. In the long run it should bring some much needed clarity and consistency.
But it also makes significant changes to the law. It attempts to put a number of principles, developed in the course of legal cases in the courts, directly onto the statute books. In some respects, it goes further than previous case law has done. For example, an employer can now potentially be liable if their employees suffer harassment at the hands of customers, where the employer failed to take any action to prevent it. This previously applied to discrimination on grounds of sex but now extends to discrimination based on other characteristics including race, age, and disability.
For the wider public, a lot of the changes might easily be dismissed as mere nuances for lawyers to argue about. But there are also some practical provisions which might make employers reconsider how they run their recruitment practices. For example, it has been suggested that employers cannot now ask any health questions of a candidate prior to making a job offer. This is true to some extent, and employers should certainly think very carefully before doing so. But there are exceptions. One of these is where it might be necessary to establish whether a person can do work regarded as “intrinsic” to the job. If the job requires constant heavy lifting, it is perhaps only reasonable to expect an employer to be able to ascertain the extent to which an employee can actually do this. Less clear cut examples can easily be imagined, and there will inevitably be arguments about what might be considered “intrinsic”.
It has also been suggested that “pay secrecy” clauses are now illegal. This is not quite the case. In fact they can still be used, but cannot be enforced against someone asking questions and divulging information for the purposes of an equal pay enquiry. The provisions were intended to make it easier to find out about pay inequality, but there may be arguments as to when a conversation or enquiry is intended for this purpose. Also, provisions requiring private sector pay reporting for employers with in excess of 250 employees, are not yet in force, and may not be for several years.
Given the ambitious nature of the Act, it is not surprising that when you look closely at what it says, it contains potentially far reaching changes. It is too early to tell whether it will have any meaningful impact in the future. It may well make is slightly easier for employees to allege less obvious forms of discrimination. e.g. - a man may now bring a pregnancy dismissal claim (on the basis of his being dismissed because his partner is pregnant, and his employer thinking this means he won’t work as hard). It may also make it easier for people to find out if they are really getting equal pay. But on balance, and in the short term, the changes are unlikely to have a great deal of impact on the day to day practices of most employers.
Mark Cornish is an employment law specialist and a partner of Anthony Gold Solicitors. For further information email Mark Cornish or call 020 7940 4000.
