The new Act consolidates the law, but also contains important new provisions that schools managers should take on board, says Tony Hyams-Parish

The Equality Act 2010 came into force on 1 October 2010, replacing a large number of discrimination statutes and statutory instruments dating back to 1975. For the most part, the Equality Act consolidates the law, but there are some changes to the law that employers need to be aware of.

What are the changes?

Discrimination laws have always protected potential as well as existing employees and workers. The Equality Act does the same, with certain provisions particularly affecting the recruitment process. There are now important differences to definitions, and additional rights – it will be important for all school employers to be aware of these. This article will look at how the Act affects the recruitment process.

‘Protected characteristics’

One of the key aims of the Equality Act is to harmonise the discrimination law across the variety of different strands that have existed. These are all brought together under Section 4 of the Equality Act as ‘protected characteristics’, i.e. the grounds on which discrimination will be deemed unlawful.

The characteristics are the same as those that existed before October and have not been expanded. They are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

Modified definitions

The definitions of each protected characteristic largely replicate those that existed before the introduction of the Equality Act although in some cases the definition has been modified.
For example, within the definition of gender reassignment there is no longer a need for the person to be under medical supervision.

New definition of direct discrimination

The Equality Act prohibits the same forms of discrimination as before: direct discrimination, indirect discrimination, harassment and victimisation.

But there is a new definition of direct discrimination, which now makes no reference to the protected characteristic of any particular person, which (in some cases) will provide improved protection.

In respect of sex, disability, gender reassignment and age, direct discrimination was defined, before October, in such a way as to require the complainant to have one of those protected characteristics him or herself, with the result that a claim would not generally succeed where the treatment was based on the protected characteristic of a third party.

Perceptive discrimination
In addition, the wide definition of discrimination encompasses so-called ‘perceptive’ discrimination – that is, discrimination based on a person’s perceived characteristic. An exception to this rule is made in respect of marital and civil partnership status.

Pre-employment health enquiries

Section 60 of the Equality Act introduces a completely new unlawful act – asking questions about a person’s health before making a job offer. The risk of doing this is that such information becomes one of the factors that determines whether the person is offered the job. This could put those with disabilities at a disadvantage.

Section 60 says that an employer must not ask about a job applicant’s health (including any disability) before offering them work; or, where the employer is not in a position to offer work immediately, before including the applicant in a pool of people to whom they intend to offer work in the future.

An employer does not commit an act of disability discrimination merely by asking about a job applicant’s health, but the employer’s conduct in reliance on information given in response may lead a tribunal to conclude that the employer has committed a discriminatory act. In these circumstances, the burden of proof will shift to the employer to show that no discrimination took place.

Exception to Section 60

This is, however, not quite a blanket ban on pre-employment health enquiries. Section 60 does not apply to questions that are necessary to establish:

  • whether the job applicant will be able to comply with a requirement to undergo an assessment (such as an interview or selection test)
  • whether a duty to make reasonable adjustments will arise in connection with any such assessment
  • or whether the applicant will be able to carry out a function that is intrinsic to the work concerned

Questions you can ask
The employer can ask questions necessary to monitor diversity in the range of job applicants; to enable the employer to take positive action; or to establish whether the applicant has a particular disability, where having that disability is an occupational requirement.

Section 60 examples

Examples of Section 60 application (Equality and Human Rights Commission guidance):

  • An employer is recruiting play workers for an outdoor activity centre and wants to hold a practical test for applicants as part of the recruitment process. It asks a question about health in order to ensure that applicants who are not able to undertake the test (for example, because they are pregnant or have an injury) are not required to take the test. This is allowed.
  • A construction company is recruiting scaffolders. The company can ask about health or disability on the application form or at interview if the questions relate specifically to an applicant’s ability to climb ladders and scaffolding to a significant height. The ability to climb ladders and scaffolding is intrinsic or fundamental to the job.
  • An employer is recruiting a person as a cycle courier. They ask applicants to send in a CV setting out their relevant experience and a covering letter saying why they would be suitable for the job. The employer will score candidates on their experience of, and enthusiasm for, cycling. It is not necessary to ask applicants questions about health or disability. If the employer considers a health check is necessary, for example, for insurance purposes, this can be carried out once an applicant has been offered the job, and the job offer can be made conditional on the health check.

Positive action

Positive action has been legal for some time. Employers have been entitled to direct training at, and encourage applications from, groups they reasonably consider to be under-represented in their industry. What is not permitted is any kind of positive action in selection – a person’s protected characteristics must not form any part of the employer’s decision-making in recruitment and promotion.

The Equality Act maintains this approach in respect of training and encouraging applications, but adds scope for employers to take positive action when recruiting, or selecting for promotion. These provisions are not yet in force.

When section 159 of the Equality Act comes into force, this will allow an employer to treat a person with a protected characteristic more favourably if the employer reasonably thinks that people with that protected characteristic suffer a disadvantage connected to the characteristic, or that employment in a certain sector among people with that particular characteristic is disproportionately low.

When is this option available?
The more favourable treatment must be aimed at enabling or encouraging people with the particular protected characteristic to overcome or minimise the disadvantage, or to participate in the activity. But this option will only be available where:

  • the person in question is ‘as qualified as’ other applicants to be recruited or promoted
  • the employer does not have a policy of treating people of the under-represented or disadvantaged group more favourably in connection with recruitment or promotion than persons who do not share the protected characteristic
  • the more favourable treatment is a proportionate means of achieving the aim of overcoming or minimising the disadvantage, or encouraging participation

Limits to positive action

The provision does not allow for ‘quotas’ or selection regardless of merit, nor will employers be obliged to use this power – the measure is entirely voluntary. So, individuals cannot challenge someone merely for not taking positive action. Although an unsuccessful minority candidate might argue that an employer’s failure to use Section159 is evidence of a discriminatory approach to recruitment, such an argument is unlikely to be successful.

These provisions are to be the subject of further consultation before they are brought into force.

The Equality Act, in line with the law that existed before 1 October, will continue to allow employers to treat a disabled person better, or more favourably, than a non-disabled person. This is recognition of the fact that disabled people face a lot of barriers to participating in work and other activities.

Indirect discrimination

Section 19 of the Act extends indirect discrimination to cover disability and gender reassignment, and harmonises the definitions of indirect discrimination found in the existing equality legislation. Its new definition extends the scope for prospective employees to claim discrimination.

Indirect discrimination now occurs if:

  • A applies a provision, criterion or practice (PCP) to B
  • A applies, or would apply, the PCP to people with whom B does not share the relevant protected characteristic the PCP puts, or would put, people with whom B shares the characteristic at a disadvantage when compared with people with whom B does not share the characteristic
  • the PCP puts, or would put, B at that disadvantage
  • the PCP is not a proportionate means of achieving a legitimate aim

The new definition extends to claimants who would be put at a particular disadvantage by the relevant PCP, replacing the previous definition where claimants needed to demonstrate that claimants were actually put to the relevant disadvantage. This makes it easier for prospective employees to claim that they have been discriminated against.

Employer flexibility

You may need to be flexible about the dates or times of interviews to avoid unlawful discrimination, particularly indirect discrimination, if you cannot objectively justify what you are doing, or a failure to make reasonable adjustments.

For example:

  • An employer only offers applicants for a job one time for interviews. A disabled person with a mobility impairment is told to attend at 9am, even though they have asked for a time that allows them to travel on public transport outside the rush hour and explained why. This is likely to be a failure by the employer to make a reasonable adjustment.
  • An employer only offers applicants for a job one time for interview. One applicant is an observant Muslim who cannot attend at midday on Friday. Unfortunately, this is the only time they are offered for their interview. Unless the employer can objectively justify the lack of flexibility, this may be indirect discrimination because of religion or belief.

Source: guidance document issued by the ECHR.

References

It is common for employers to take up references on prospective employees and to ask questions about periods of absence due to sickness. Such enquiries made before an offer of employment may now be unlawful under Section 60, unless one of the exceptions applies (see above).

The Equality Act also introduces a new strand of disability discrimination law by adding indirect disability discrimination, something that did not exist under the Disability Discrimination Act 1995.

Assuming that the request for information on sickness absence is a practice adopted by an employer in respect of all prospective employees, this could now indirectly discriminate against employees on the grounds of disability, since those with disabilities could be put at a disadvantage as a result of such practice. An employer would be able to justify the practice if they can show that it is a proportionate means of achieving a legitimate aim.

General occupational requirements

The employer can rely on a genuine occupational requirement (GOR) as a defence to direct and indirect discrimination. This applies where a particular race or ethnic or national origin, religion or belief, sexual orientation or age is a ‘genuine and determining’ occupational requirement, provided it is proportionate to apply the requirement in the case in question.

There is, however, no general GOR defence in relation to sex, gender reassignment, colour and nationality. Instead there are specific genuine occupational qualifications (GOQ), which serve a similar purpose. One GOQ, for example, is the need to employ a man or woman to ensure that a dramatic performance is authentic (sex); another applies where the job entails providing individuals of a particular racial group with personal welfare services (race).

Disability and GOR
There is no GOR or GOQ defence for disability because the Disability Discrimination Act 1995 does not protect non-disabled people. The Act contains a general ‘occupational requirement’ defence for all grounds of discrimination. The new general defence differs from the existing one in that it drops any reference to the occupational requirement being ‘genuine and determining’.

Instead of the present requirement for it to be proportionate to rely on a GOR, applying an occupational requirement must be ‘a proportionate means of achieving a legitimate aim’. This mirrors the objective justification test elsewhere in the legislation and, arguably, any requirement that is not ‘genuine’ or ‘determining’.

Tony Hyams-Parish is head of education and employment at Rawlison Butler. Contact him at 01293 527744.

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