Equality for all

The Equality Act 2010 replaces all of the UK's existing anti-discrimination laws with a new set of enhanced obligations, housed under one roof. The Act defines nine 'protected characteristics': age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion and belief, gender and sexual orientation. The provisions of the Act are numerous and will be accompanied by extensive statutory codes and government guidance. Here, we highlight some of the key issues which will affect the manufacturing workplace. Strict restrictions on pre-employment health questions In one of the most significant changes, aimed at preventing the screening-out of disabled employees at the recruitment stage, the Act places rigorous limits on the information an employer can ask about a candidate's health before making an offer of employment. It is now only lawful to ask pre-offer questions about a candidate's health if it is necessary to establish that they will be able to carry out an intrinsic function of a job or to establish whether the employer needs to make any 'reasonable adjustments' in respect of the recruitment process itself. For example, if an employer is recruiting a driver, candidates can be asked about their fitness to drive or, if the recruitment process involves a practical technical test, an employer can ask a candidate if they need any special arrangements, such as additional time, so as not to be disadvantaged in the recruitment process. Discrimination by association and perception Although 'associative discrimination' and 'discrimination by perception' are not new concepts, the Act extends them to cover every protected group, save marriage, civil partnership, pregnancy and maternity. This means that employees can claim protection if they are linked with somebody who is in a protected group, or if they are treated less favourably because they are perceived (whether rightly or wrongly) to be part of a protected group. For example, an employee who makes a request to work flexibly to look after a disabled child is protected from being treated less favourably than an employee making a similar request in relation to a child who is not disabled. Also, an employer who rejects a job application from a candidate because of their ethnic-sounding name is guilty of race discrimination. This is so even if the candidate was Caucasian as it would amount to race discrimination based on an employer's mistaken perception. Repeated harassment from customers or third parties – 'three strikes and you're out' The Act extends an employer's obligations to protect its staff from harassment by customers and other third parties, such as suppliers. If an employee is harassed on two occasions by a customer, or other third party and the employer knows about this harassment, then if the employee is harassed on a third occasion, the employer will be liable unless it can show that it has taken all reasonably practicable steps to prevent the harassment. It is irrelevant whether the harassment was by the same, or by a different customer/third party on each of the three occasions – the obligation is on the employer to protect its staff. Disability discrimination There are two new types of disability discrimination introduced by the Act. Indirect discrimination will now apply to disability discrimination. This would mean, for example, that an employee could claim that requiring all employees to type accurately at a certain speed indirectly discriminates against those who suffer from arthritis. Unless an employer can justify this requirement as being 'a proportionate means of achieving a legitimate aim', it will be unlawful. There is also a new right to claim discrimination 'arising from a disability'. This may impact significantly in the area of sickness management. Dismissing a disabled employee because of their sickness absence record will be harder to justify if the sickness in question arises from a disability. This increased protection makes it more important for employers to investigate the underlying reasons for sickness absence before taking formal action. So, what are the immediate steps that employers should take? If they have not already done so, employers should ensure that their policies and procedures, including recruitment procedures, are up to date and compliant with the Act. It will be harder for employers to defend themselves against a claim of discrimination in the employment tribunal if their policies are out of date. There is no statutory cap on the potential amount of compensation that can be awarded in a successful claim of discrimination, so the stakes are high. Employers should also consider whether their managers and supervisors implementing their policies on a day-to-day basis need additional training to ensure they are aware of their new obligations. Ruth Nodder is a solicitor and principal legal adviser for EEF, the manufacturers' organisation: www.eef.org.uk