Employment Law Changes Taking Effect 1 October 2014

As is generally the case each year, 1 October brings a number of changes to employment law.

The key changes taking effect 1 October 2014 are as follows:

National Minimum Wage Increase

The annual increase to national minimum wage rates for all workers will take effect, such that from 1 October:

  • Workers aged 21 and over will be entitled to £6.50 per hour
  • 18-20 year olds will be entitled to £5.13 per hour
  • 16-17 year olds will be entitled to £3.79 per hour
  • Apprentices will be entitled to £2.73 per hour

Power to order Equal Pay Audits

From 1 October, Tribunals will have the power to order employers found to be in breach of equal pay law under the Equality Act 2010 (i.e. those who have lost an equal pay claim brought on or after 1 October 2014) to carry out equal pay audits.

The audit will have to identify any differences in pay between men and women and the reasons for these, as well as the reasons for any equal pay breach and how the employer plans to avoid further breaches in the future.

The employer will be required to publish the relevant gender pay information and make it available on its website for at least three years – therefore making it available to competitors, customers and potential job applicants.

Time off for ante-natal appointments

An expectant father or the partner of a pregnant woman will be entitled to take unpaid time off work to accompany the woman to up to two of her ante-natal appointments. “Partner” includes the spouse or civil partner of the pregnant woman and a person (of either sex) in a long-term relationship with her. The right to time off is capped at 6.5 hours for each appointment.

An employer is not entitled to ask for any evidence of the ante-natal appointments, such as an appointment card, as this is the property of the expectant mother attending the appointment.

However, an employer is entitled to ask the employee for a declaration stating the date and time of the appointment; that the employee qualifies for the unpaid time off through his or her relationship with the mother or child; and that the time off is for the purpose of attending an ante-natal appointment with the expectant mother that has been made on the advice of a registered medical practitioner, nurse or midwife.

Reserve Forces Reform

The statutory two-year service requirement for bringing an unfair dismissal claim will no longer apply in cases where the dismissal is connected with the employee’s membership of the Reserve Forces. The order also makes provision for the secretary of state to make payments to small and medium-sized employers of reservists who are called out for service.

Victimisation under the Equality Act 2010 - ex-employees are now protected (again!)

This post was written by Thomas McLaughlin and Laura Juillet.

The Equality Act 2010 makes it unlawful to subject an employee to detriment because they have raised (or are threatening to raise) a complaint about discrimination – so-called “victimisation.”

Over the last year or so there have been conflicting judgments from the Employment Appeal Tribunal on the issue of ex-employees and whether they are protected from victimisation.

Today the Court of Appeal handed down its judgment in Jessemey –v- Rowstock Limited [2014] EWCA Civ 185 and confirmed that ex-employees are protected from victimisation by their former employer. The judgment is not, at the time of writing, available online but please contact us if you would like a copy.

Why the confusion? And why does it matter?

Following the House of Lords case of Rhys-Harper v Relaxion Group plc in 2003 and amendments to the discrimination legislation made that same year, ex-employees were protected against victimisation by their former employer. For example, if an ex-employee brought a discrimination claim in the Employment Tribunals against their former employer and, because of that, the former employer gave the ex-employee a poor reference, this would have been unlawful victimisation. The ex-employee would be entitled to compensation for financial loss flowing from the poor reference and an amount in respect of injury to feelings.

In 2010 all of the previous discrimination legislation was consolidated into the new Equality Act. The 2010 Act clearly prohibits victimisation of current employees. It also specifically states, at section 108, that ex-employees are protected from discrimination and harassment, where the acts are closely connected to the relationship that used to exist between the parties, and where the conduct would have been unlawful if the relationship was on-going.

However, this wording does not specifically post-employment cover victimisation, just harassment and discrimination. What is more, section 108 goes on to say (at subsection (7)) that: “conduct is not a contravention of this section in so far as it also amounts to victimisation[…]

Do these new provisions mean that post-employment victimisation is no longer unlawful?

In 2013, the EAT considered the question on two separate occasions, and came up with two different answers (as discussed in a previous blog).

In March 2013, in the case of Rowstock Ltd & Davis v Jessemey, the EAT found that victimisation post-employment was not prohibited by the Equality Act, thanks to the express wording in section 108. However, in the case of Onu v Akwiku in May 2013, the EAT concluded that such claims should be allowed.

Until today’s judgment the legal position was in a state of confusion.

The Court of Appeal’s decision

Today’s judgment provides welcome clarification but, because the Court of Appeal has followed the EAT in Onu rather than Jessemey, the position is more onerous for employers.

Mr Jessemey was employed by Rowstock Limited and was dismissed in January 2011 because he had reached the age of 65. When he brought proceedings for unfair dismissal and age discrimination his manager Mr Davis (who was also a respondent to the claim) gave him a poor reference. The Employment Tribunal found that Mr Davis did this because Mr Jessemey was pursuing Employment Tribunal proceedings.

For those who are interested, the Court of Appeal’s judgment contains a short but interesting history of the discrimination legislation and, in particular, the victimisation provisions.

Essentially the Court found that, because ex-employees were protected from victimisation at the time the Equality Act 2010 was drafted, Parliament cannot possibly have intended to remove that protection in the 2010 Act. Further, because European Union Law requires that ex-employees are protected from victimisation, the UK courts must interpret the 2010 Act to give effect to that protection, and such an interpretation was possible here.

The Court left open the question of what exactly sub-section 108(7) of the 2010 Act means and said:

“In the unlikely event that anyone seeks to rely on it in future, some other court can cudgel its brains about what real effect, if any, it has…”

Practical points for employers

Issues relating to post-employment victimisation most commonly arise in the context of references. Employers should develop and strictly enforce policies for giving references. To avoid claims of victimisation it is important that references do not refer to any claims or grievances relating to discrimination.

As well as written references these principles also to apply to verbal approaches for references which may be made to individual managers rather than HR departments.

Although sometimes seen as unhelpful by employees, the employer’s position is best protected by providing a ‘standard’ reference confirming only job title and dates of employment.

It is important to remember that victimisation can occur many years after the employment relationship has ended. In Bullimore –v- Pothecary Witham Weld Solicitors an employer victimised an ex-employee who had brought a sex discrimination claim by giving a poor reference some four years later and was liable for the losses suffered by the employee when a new job offer was subsequently withdrawn.

Note: Although in this blog we use the term “employee,” the protection of the Equality Act 2010 extends beyond this to any person working under a contract of apprenticeship or a contract personally to do work.

"European" employment law applies in Europe only

The application of UK employment law to employees working outside the UK is a big issue for multi-national companies and employers in the shipping industry. If you have an employee who works for you outside the UK, can you be sure that they are not entitled to UK employment rights?

Not always – and there has been a great deal of case law over the last few years which indicates just that. Some employees working outside the UK may have UK employment rights – international employers should remain aware of that risk to avoid surprise claims.

But which employees will have such rights? A new case this week in the Employment Appeal Tribunal ("EAT") might provide some help in answering that question, at least in relation to employment protection derived from EU law, such as discrimination claims. We take a look at Hasan v Shell International Shipping Services (PTE) Ltd, and consider if this case takes us any further in defining the true scope of UK employment law.

The general position

The question as to whether an employee working outside the UK is nevertheless entitled to UK employment protection will depend on what type of claim he is bringing.

In particular, the case of Bleuse v MTB Transport Ltd made clear that, as regards employment rights and protections which are derived from EU law, Tribunals will need to construe such provisions widely enough to give effect to that EU-derived protection to everyone who has an English law contract (even if that does not seem to strictly comply with the letter of the UK law and the employee has little or no connection to the UK). Mr Bleuse, a German national who worked for a UK company throughout Europe (but not in the UK) under an English law contract, was unable to bring claims for unfair dismissal or unlawful deduction of wages because he could not satisfy the tests set out in Lawson v Sercothat is to say his employment did not have sufficient connection to the UK; his English law contract was not enough for these purposes. These two claims are ‘UK-based’, they are not derived from EU law. On the other hand, because his claim for holiday pay centered on EU-derived rights and his contract was governed by English law, the EAT held it was required to interpret the UK legislation in such a way as to allow this claim to proceed, without the need for any further ‘sufficient connection’ to the UK.

The provisions of the Equality Act 2010 (affording protection against unlawful discrimination) are, like those regarding holiday pay, derived from EU law. Following Bleuse, therefore, Tribunals will need to interpret the scope of these anti-discrimination provisions in such a way that (as far as possible) these EU-derived rights are enforced even where the employment has little or no connection to the UK other than an English law contract.

Bleuse only helped us so far, however, as it concerned a German national working for a UK company throughout Europe. The case didn’t provide any clarification as to whether this interpretation requirement applied where the employee was working in a non-EU state.

Mr Hasan's particular position

Mr Hasan was a mariner. He was employed by a Singapore company, who contracted out the day-to-day management of the employment relationship to a company registered in the Isle of Man. Further, a manning agreement existed between the Singapore employer and a third company, registered and based in the UK, under which Mr Hasan’s employer provided personnel to this UK company. Mr Hasan lived (when not working aboard ships) in the UK, was paid in pounds sterling, and was subject to the UK tax regime. When he was dismissed, the dismissal was confirmed in a letter from the Isle of Man company, responsible for day-to-day management of the employment relationship.

Mr Hasan brought claims for discrimination, unfair dismissal and breach of contract (in relation to unpaid notice). The key point from this case arises from the discrimination claim.

The discrimination claim

This claim related to events onboard the ship Galea, a Singapore-flagged ship which did not enter UK waters during Mr Hasan’s employment.

Section 81 of the Equality Act states that the protection afforded by the Equality Act will apply to seafarers "only in such circumstances as are prescribed". The prescribed circumstances are set out in accompanying Regulations which in this case meant that, in order for Mr Hasan to qualify for anti-discrimination protection under the Equality Act, he would need to be employed on a UK registered vessel with a "registered port of choice" in Great Britain. This was clearly not the case. The Employment Tribunal found that he was not entitled to protection under the Equality Act.

Mr Hasan appealed against this finding. Part of his argument centered on the "Bleuse principle" which we have discussed above. This principle, he argued, should mean that the territorial limitation under section 81 of the Equality Act should be relaxed to allow him an effective means of exercising directly enforceable EU-derived rights (in this case protection from discrimination). He referred to the case of Dhunna v Creditsights, which concerned an employee working in Dubai seeking to enforce EU-derived employment rights under UK law (in that case regarding working time restrictions). Although the Claimant in that case was not successful, Mr Hasan’s argument was that this did not mean that there was a general rule that the Bleuse principle should not apply where the Claimant was working outside the EU. He suggested that this be a point of reference to the European courts.

The EAT disagreed. Having considered numerous authorities, the EAT was satisfied that in none of these was the Bleuse principle held to apply when the acts complained of occurred outside the EU (as they had done here), and it declined to extend the principle in this case. In any event, the EAT remarked that the provisions of s.81 of the Equality Act (and the accompanying Regulations) were express, and so cannot be dis-applied by any implied interpretation of the territorial scope of the Equality Act.

Mr Hasan’s discrimination claim therefore failed – the UK tribunals had no jurisdiction to hear this claim.

No extension of the Bleuse principle

This case does provide some clarity for international and shipping employers. Following this case, it will be difficult for individuals who work outside the EU to argue that EU-derived employment protection should apply to them. Having said that, however, nor did the case expressly and firmly state that the Bleuse principle could never apply in such circumstances. As case law in this area develops constantly, such employers are urged to remain vigilant to further case law developments. In the meantime, however, the risk of such claims from international employees – particularly seafarers – seems to be reduced.

Three 'golden rules' when considering whether an employee is disabled

Last month, we looked at when employer might be deemed to have knowledge of an employee’s disability, discussing (among other cases) the EAT’s decision Gallop v Newport County Council. At that time we noted that the appeal had already been heard in the Court of Appeal but judgment had been reserved. 

The Court of Appeal has this week handed down its decision, urging caution to employers tempted to simply rely on an Occupational Health report to argue that they did not know (and could not reasonably have been expected to know) about an employee’s disability. 

We look at the impact of this judgment, and consider three ‘golden rules’ for employers when seeking opinions on whether an employee is disabled.

Why do you need to know about an employee’s disability?

A duty to make reasonable adjustments in respect of a disabled employee will not arise if the employer does not know, and could not reasonably be expected to know:

  • that the individual is disabled, or
  • that he or she is likely to be placed at a substantial disadvantage because of that disability compared with non-disabled people

(paragraph 20, schedule 8 of the Equality Act 2010).

‘Disability’ has a particular legal meaning under the Equality Act 2010: an individual will only be disabled if he suffers from a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. (Section 6(1), Equality Act 2010).

An employer who can successfully show that they did not know (and could not have been expected to know) about a disability will therefore be able to demonstrate that it was under no obligation to make any reasonable adjustments – a potentially powerful defence for employers in Tribunals.

How do you ‘know’ about a disability?

Such a defence will not necessarily be an easy one to prove, however. As we discussed in our previous blog, whether an employer knows (or could reasonably have been expected to know) that an employee is disabled is often a complicated and subtle issue, especially in the case of mental illness. 

Whether an employee is disabled for the purposes of the Equality Act 2010 is a question often asked of an occupational health provider (“OHP”). The issue which arose in the current case of Gallop v Newport County Council, is what the employer should do if the OHP report clearly states that the employee is not disabled? How far can an employer rely on such a statement?

Previous indications from the EAT

In the current case, Mr Gallop suffered from symptoms of work-related stress, and was referred to an OHP by the Council. One of the OHP reports stated that “I have taken the opportunity to refer him for counselling in order to assist with any ongoing stress and I would confirm that the provisions of [the Disability Discrimination Act 1995 – now covered by the Equality Act 2010] do not apply in this case in my view.” This view – that Mr Gallop was not disabled – was confirmed in at least three other reports.

Mr Gallop brought claims against the Council for direct disability discrimination and a failure to make reasonable adjustments. The Tribunal held that, although Mr Gallop was in fact disabled at the relevant time, the Council was entitled to rely on the advice of the OHP, and so could not have been reasonably expected to know about this disability. The Tribunal recognised that there are particular questions which must be answered when ascertaining whether an employee is disabled (namely whether the employee suffers from a physical or mental impairment which has a significant and long-term impact on his day-to-day activities). It considered that the “best way” for the employer to answer those questions is to seek advice from appropriately qualified medical professionals. Of course the employer should then be able to rely on such advice, the Tribunal concluded, unless there is some reason to show that the advice is negligent or being provided without all the relevant information. The EAT agreed with the Tribunal’s findings in this respect.

Court of Appeal decision means employers should not unquestioningly rely on OHP conclusions

It seemed, therefore, based on the EAT’s judgment, that an employer could legitimately rely on an OHP’s conclusions that there was no disability, when defending a claim for reasonable adjustments. A useful argument for employers at Tribunal, of course, but we nevertheless advised caution: employers still had to be sure to make all reasonable enquiries of that OHP; they could not simply sit back and say they did not know about a disability when they had not even asked the pertinent questions of a medical expert. 

This view is firmly supported by the Court of Appeal’s judgment in the current case, published this week. The Court held that both the Tribunal and the EAT were wrong to consider that the Council could deny knowledge of the disability “by relying simply on its unquestioning adoption of [the OHP's] unreasoned opinions that Mr Gallop was not a disabled person.”

The Court went on to stress the importance of making all relevant enquiries into a possible disability and not unquestioningly following OHP’s opinion.

Practical points for employers – three ‘golden rules’

In light of this case, employers would do well to remember three ‘golden rules’ when seeking OHP’s opinion on an employee’s possible disability:

  1. Seek advice and assistance from OHP, but don’t stop there: the Court of Appeal is certainly not advising doing away with OHP opinions altogether. Make sure, though, that OHP reports are just part of your enquiries into the employee’s condition – you will no doubt need to speak to the employee, and maybe other medical professionals, when considering whether you need to make reasonable adjustments. 
  2. Make sure the OHP’s opinion is a reasoned one – ask directed questions: the OHP reports were criticised in this case for not providing supporting reasoning for the view that Mr Gallop was not disabled. Because of this, the Court of Appeal held, the employer should have formed its own view on disability – relying on the OHP’s ‘worthless’ opinion was not acceptable. Ensuring, therefore, that your OHP is not just stating whether the employee is disabled, but is also explaining why he thinks so, you are more likely to be able to rely on a conclusion that there is no disability. Ask directed questions about the employee’s condition and its duration and effects, not just a general question as to whether the employee is disabled.
  3. No ‘rubber stamping’: The Court of Appeal made expressly clear that the ultimate factual judgment as to whether the employee is or is not disabled must be made by the employer. Always go back to the definition of disability in the Equality Act 2010, and ask yourself whether each element applies to the employee, based on all the reasonable enquiries you have made. Do not simply ‘rubber stamp’ the opinion of the OHP.

 

 

 

 

 

 

 

 

Recent Discrimination Rulings - Potential Risks for Global Employers

This post was written by Nicolas C. Sauvage and Michaela L. Mc Cormack.

On November 2, Nicolas C. Sauvage gave a seminar at top French business school HEC as part of the new specialized executive Masters programme for international Human Resources Directors, “Human Resources Management & Sustainable Development.” 

Nicolas’ presentation covered the themes of diversity and discrimination, retracing the emergence in both European and international texts of important ideas such as direct and indirect discrimination, discriminatory harassment, and showing that the idea that diversity and non-discrimination are central to economic growth has been a constant theme of these texts. 

A series of court rulings from various EU states and central jurisdictions were employed to help trace the development of case law in the area, thus highlighting the rules and boundaries that must be respected by HR directors and general management at every stage, from recruitment to the termination of the employment contract. 

Comparisons were made with the United States in order to explore the progression of contentious discrimination matters and to study the pros and cons of positive discrimination/ affirmative action, a particularly topical and somewhat controversial issue in Europe at the moment. Over the past few years, legislation in France has installed a series of requirements concerning quotas and/or salary for disabled workers, “senior” workers and women. Positive discrimination is also an important theme in the UK’s newly enacted Equality Act 2010.

The final section dealt with the business risks and advantages related to discrimination and diversity. Besides the various legal and financial risks surrounding litigation, examples were used to illustrate the stakes regarding the image of a company, in terms of both clients and talent. The executives present at the seminar were reminded of the central place of discrimination and diversity within other HR and management issues, such as IT and Internet policies, psychosocial risks, and questions of work-life balance. 

Practical advice was given on steps that can be taken (such as management training; review of recruitment, evaluation and promotion policies; focus on social dialogue; and involvement in outreach and community projects), to instill best practices within a company to improve its position in terms of diversity. Finally, besides the general benefits attached to a diverse workforce, the tangible competitive and financial advantages of these diversity policies, such as the fact that the achievement of a diversity label is now often part of the criteria for calls for tender, were presented. 

In these times of responsible consumerism and changing expectations on the part of job candidates, non-discrimination and diversity were shown to be a central part of any company’s policy for sustainable development, holding an important place in the growing search for a triple bottom line: “People, Planet and Profit.”

Please download the slides here to read Nicolas’ presentation.

The UK Equality Act 2010 - new risks for employers using Compromise Agreements

On the day the Equality Act 2010 came into force last Friday, it became apparent that there is a significant drafting error in the Act which could affect the enforceability of compromise agreements intended to settle discrimination and equal pay claims under the Act.

In order to have a qualifying compromise agreement the complainant must receive advice from an “independent adviser” about its terms and effect. The problem has arisen in relation to section 147 which sets out the requirements for an independent adviser. 

The Act, in force as of 1 October, provides in Section 147(5)(d) that:

‘. . . none of the following is an independent adviser in relation to a qualifying compromise contract:

(a) a person who is a party to the contract or the complaint; and

(d) a person who is acting for a person within paragraph (a) in

relation to the contract or the complaint . . ."

The literal effect of this would be that an adviser who has acted for the employee in relation to the contract or complaint to date cannot also advise the employee on a compromise agreement to settle a claim or complaint.   It would appear that this is a flaw in the drafting of this section of the Act.   

How will this be interpreted?

The Courts have built up, over the years, a line of case law which deals with the interpretation of drafting errors in legislation and other ambiguities. Where the wording of the statute is plain and unambiguous, the Courts are bound to construe them in their ordinary sense, even if it leads to an absurd result or manifest injustice. However, as soon as the provision is acknowledged to be ambiguous (i.e. more than one meaning can be derived from the plain reading of the words used) the Courts may take account of any absurdity that would occur from a particular interpretation. 

It appears that the wording of section 147 is plain and unambiguous in the way it is drafted. However, a reading of the explanatory notes shows that its effect is clearly not what the legislature intended. There is case law which indicates that the Courts may, in such cases, be prepared to look at all the evidence (such as Parliamentary debates recorded by Hansard) to determine what the legislation was intended to do.

We would hope that any Employment Tribunal faced with interpreting this section would agree that its meaning does not accord with the corresponding sections of other legislation such as section 203 of the Employment Rights Act 1996 (which relates to the settlement of claims under that Act, such as unfair dismissal), and therefore conclude that this could not have been the Government’s intention.

How could this affect employers?

Taking a literal interpretation of section 147 of the Act could mean that a compromise agreement is not valid because the adviser was not an independent adviser within the Act. Indeed, it could mean that no claim under the Equality Act could ever be settled by way of compromise agreement since an independent advisor is not allowed to be a person (e.g. solicitor) who is “acting” for an employee in relation to the claim or complaint.  

Options for employers and associated risks

As the wording of section 147 of the Act produces what can only be described as a clear error, it is hoped that Parliament will be able to resolve this shortly. Until that time, or until the Courts are required to make a declaration as to the meaning of this provision, employers are left in the uncomfortable position that there is a risk that their compromise agreements can be challenged as unenforceable. 

The only watertight solution is for employers to consider using a COT3, where appropriate. This is an ACAS form for conciliating an agreement between employer and employee. 

In cases where a COT3 is not appropriate, employers will have to assess the risk of continuing to use a compromise agreement. Essentially, the risk is that employers will be open to a challenge being made. However, given that the drafting error appears to be a simple one, which will not require much creativity on the part of the courts, it is hoped the risk will not be great or prolonged.

Click on the following link for the Government Equalities Office website, which contains all the latest news from the government on the Equality Act 2010 and its implementation, as well as links to the text of the Act and the Explanatory Notes.

Click on the following link for the Equality and Human Rights Commission website, which gives more information the Equality Act 2010 and the draft Codes of Practice.

The UK Equality Act - Your Questions Answered

This post was written by Joanna Whiteman and Ruth Bonino.


In this Q&A, we have attempted to cover some of your most frequently asked questions on the UK Equality Act 2010.  This is not intended to be a comprehensive guide of the new provisions, so if you would like further information, please do not hesitate to contact us.


The Equality Act 2010 has been in the press a lot recently. Should we already have taken steps to ensure that our systems are in compliance with it?

The Equality Act 2010 ("the Act") received Royal Assent in April, just before the general election and after a period of intense discussion and debate.  The new coalition government has recently announced that most of the Act's provisions are due to take effect, as planned, from October 2010. However, despite this, questions remain over the more controversial provisions, such as the socio economic duty, gender pay reporting and positive action.

Employers need to act now in order to prepare for the Act, and the action we recommend is set out at the end of this note.  As regards those provisions of the Act where a question mark remains, there is no need to jump the gun - keep a close eye on developments, but be prepared to act as soon as any announcements are made.


I've heard that the Act makes it easier for employees to show they have suffered disability discrimination. Is this true?

The Act introduces some significant changes in the law concerning disability discrimination, and the government has said that these will come into force in October.  The changes have come about because of a recent decision of the House of Lords (London Borough of Lewisham v Malcolm (2008)), which rendered the existing protections against disability-related discrimination inadequate.  The changes make it easier for people to show they are disabled and are protected by disability discrimination law.  Two new types of disability discrimination are recognised as unlawful by the Act:

  • Indirect discrimination - under Section 19 of the Act, a person will be indirectly discriminated against if the employer applies a "provision, criterion or practice" that puts people sharing that person's specific disability, at a particular disadvantage. This means, for example, that a job applicant or an employee with dyslexia could claim that a rule that employees must be able to type at a certain speed disadvantages people with dyslexia. Unless the employer can justify this, it would be unlawful.
  • Discrimination arising from disability - under Section 15 of the Act, an employer discriminates against a person when it treats that person less favourably, not because of the disability itself, but because of something arising "in consequence of that person's disability," such as the need to take a period of disability-related absence. For this type of discrimination to occur, the employer must know, or reasonably be expected to know, that the disabled person has a disability. This type of discrimination will be easier for an employee to show since there will be no need to make a comparison with a person who does not have a disability (as is currently the position). It will, however, be possible for an employer to defend a claim by showing that the treatment is justified as being a proportionate means of achieving a legitimate aim.

Some aspects of disability discrimination law are not changed by the Act. For example, the Act still requires employers to make reasonable adjustments for disabled employees and does not change the extent to which these are required. However, it may be necessary to review your organisation's policies to ensure that they are up to date and compliant with the current interpretation of "reasonable adjustments."  It will also be advisable to review your policies and practices to ensure that they cover the new definitions of disability discrimination referred to above.


We find it useful to ask prospective employees to fill in a pre-employment health questionnaire before we offer a job. Does the Equality Act 2010 say anything about this?

Under Section 60 of the Act, it will only be lawful to ask questions on health before a job has been offered in a very small number of exceptional circumstances, such as when those questions are necessary in order to establish whether the candidate will be able to carry out an "intrinsic function" of the job he or she is applying for. For example, where a job requires heavy lifting, the employer will be permitted to ask the candidate whether he or she could manage the heavy work involved.  Other permitted reasons might be the need for diversity monitoring or to make reasonable adjustments in the selection process.  The purpose of the new provision is to make it more difficult for disabled people to be unfairly screened out when applying for jobs.  Once the applicant has been interviewed and has received a conditional or unconditional offer, further health questions can then be asked.  This new provision is likely to be in force from 1 October 2010.


I have heard that we will need to take part in complicated and time-consuming gender pay audits. Is this true?

One of the more significant new legal requirements in the Act is the proposed "gender pay audit" obligation that may be imposed on private sector employers. If this provision is brought into force, the government will be able to require all private sector employers with more than 250 staff to produce reports on the gender pay gap in their organisation. This new provision was designed to be part of measures to encourage more transparent pay reporting in the private sector, and the Labour Government's aim was to encourage private companies to publish this information on a voluntary basis. For this reason, the measure was not set to come into force until 2013 and, even then, was only intended to be used if sufficient progress on voluntary reporting had not been made.

It is currently not clear if the new coalition government will ever implement voluntary pay reporting, or bring this new requirement into force.

Accordingly, if your organisation has more than 250 employees you will need to keep a close eye on developments. In the meantime, you should be prepared for the possibility that you may, at some time in the future, be required to publish gender pay data.  In order to avoid any nasty surprises (and as a matter of good practice), prudent employers should analyse their pay structures with a view to establishing whether there is a gender pay gap problem.  Any potential problems revealed by this analysis will enable you to rectify them now, before you find yourself in the embarrassing and potentially costly situation of having to fight equal pay claims.


Will we have additional equality obligations toward a larger number of our employees?

Whilst "protected characteristics" (such as age, race, sex, etc.) remain the same, the Act will strengthen and expand the law protecting people from discrimination in certain categories:

Associative discrimination

The Act will strengthen the law protecting people from discrimination when they are associated with someone from a protected group. This concept is not new - it is already unlawful to discriminate against or harass someone because they are "linked" or associated with a person who is of another sexual orientation, race or religion and belief.  A recent decision of the European Court confirmed that European law also protects against direct disability discrimination by association.  The Act now extends the protection from discrimination by association across all the strands of discrimination or harassment so as to include age, disability, sex and gender reassignment.

Therefore, the Act does, to some extent, extend equality obligations to those employees who themselves are not within a protected group, but who are linked or associated with someone who is within a protected group. The Act would therefore protect an employee making a request to work flexibly for an elderly relative or a disabled child, from being less favourably treated than an employee making a similar request to care for another adult who is not elderly or a child who is not disabled.

Perception discrimination

Under current UK discrimination law, persons are protected from discrimination on grounds of race, sexual orientation or age if they are perceived to be of a certain race, sexual orientation or age that is the subject of the discriminatory treatment when, in fact, they are not of that race, orientation or age. The UK Court of Appeal will also soon be considering whether someone can claim discrimination on the grounds of a perceived disability.

The Act will extend the current law as it will protect anyone who is perceived to have a protected characteristic from discrimination because of that perception. The Explanatory Notes to the Act gives some practical examples to help indicate the types of situations in which this applies. One example they give is, "If an employer rejects a job application form from a white man whom he wrongly thinks is black, because the applicant has an African-sounding name, this would constitute direct race discrimination based on the employer's mistaken perception." So, if an employee is treated less favourably because of a protected characteristic (whether perceived or actual), that employee will have a claim for direct discrimination.

Harassment

Under current UK discrimination law, different levels of protection from harassment are given to employees depending on the protected characteristic involved. The Act corrects this by harmonising the law on harassment, as well as by extending the protection from harassment to people with any protected characteristics (except pregnancy and maternity and marriage/civil partnership). Furthermore, as the Act protects people from unwanted conduct "related to" a protected characteristic, employees are protected from harassment to which they are subjected because they are associated with someone with a protected characteristic or they are perceived to have a protected characteristic. This means that an employee who, for example, is harassed because of her son's disability or because she is wrongly perceived to be Jewish, is protected under the Act.

In addition, as regards employer liability for third-party harassment, current legislation restricts this to cases relating to sex discrimination, but the Act will extend this across most protected characteristics.  An employer will therefore be liable for harassment where a third party harasses an employee in the course of their employment and the employer fails to take reasonable steps to prevent the harassment, where the employer knows that the employee was harassed by the third party on at least two other occasions during the course of his or her employment.

What do these changes mean for employers?

An employer following good practice should already have equal opportunities and disciplinary policies in place that address any form of discrimination or harassment. These may need to be slightly reworded to take account of the expansion of the meanings of discrimination and harassment. However, the additional protections should not require a dramatic shift in culture. The area we think will be likely to require the greatest caution is that of disability, particularly in the case of people who may be perceived to be disabled.  For example, an employee with a poor sickness record who is not given a promotion may not be "disabled" within the meaning of the Act, but may be able to argue discrimination arising out of perceived disability.   

The above new provisions are likely to be in force from 1 October 2010.


If we're recruiting for a job and we've got two candidates who are equally employable and one is from an ethnic minority background, do we have to recruit the minority candidate?

Under the Act, it is proposed that employers will be permitted (but not required) to take "positive action" with regard to recruitment and promotion. There is no date set for when this provision will come into force.  If and when in force, an employer will be allowed to pick someone who has a "protected characteristic" (e.g., a particular race/ethnic minority background) for a job when the employer has a choice between two or more candidates who are equally suitable, provided that the employer "reasonably thinks" that people with that candidate's protected characteristic are disadvantaged or disproportionately badly represented.

However, employers may only do this where they are faced with two candidates who are "as qualified" as each other. They are not entitled to select a less well-qualified candidate purely on the basis that he or she is from an under-represented group. In addition, an employer must not have a policy of treating people in a protected group more favourably. Each decision must be made on a case-by-case basis, assessing whether this positive treatment is a proportionate means of enabling a protected group to overcome the disproportionate under-representation.

If employers wish to take advantage of this provision once it is in force, they need to proceed with caution. Because it is open to dispute as to whether any two candidates are ever "as qualified as each other,, employers will be open to the risk of discrimination claims by unsuccessful candidates, brought on the basis that they felt that they were better qualified but lost out purely on discrimination grounds. For this reason, it is likely employers may be reluctant to use this provision.


I've heard that we need to ensure that we don't discriminate against someone because of their class. Is this true and, if so, will we need to introduce a new policy on this?

No, there is no new obligation on private employers not to discriminate on a socio-economic basis. There is, however, a proposed new public "socio-economic" duty that requires public authorities, when making decisions of a strategic nature about how to exercise their functions, to "have due regard to the desirability of exercising them in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage." This duty will fall upon government ministers, the NHS and local authorities, amongst other bodies.  This new duty will affect some private employers indirectly.  Private companies that provide services to government departments under outsourcing agreements might be required to ensure that they work in a way that complies with their client's public sector duties.

Prior to the General Election, the Conservative Party was not in favour of this duty, and the Liberal Democrats also expressed some concern. Accordingly, it is doubtful as to whether it will come into force.


Some of our employment contracts contain provisions restricting our employees from disclosing information relating to pay - are these now unenforceable?

The Act will render unenforceable any term in an employment contract that prevents or restricts an employee from discussing his or her pay with other colleagues or any other person (such as a trade union) if the purpose of the disclosure is to find out whether there is a connection between any difference in pay and a protected characteristic (such as age, race or sex).  Furthermore, if a man (for example) who is asked by a woman to disclose the details of his pay does so, and is then disciplined by his employer, the Act makes it clear that he could make a victimisation claim.  The new provisions do not mean, however, that all pay secrecy clauses are unenforceable.  If, for example, an employee discloses his pay to a competitor in breach of a confidentiality clause in his contract, his employer will be entitled to enforce the contractual obligation in the usual way through the courts.

This new provision is likely to be in force from 1 October 2010. 


I read that the Act allows "dual discrimination" claims. What does this mean?

The Act proposes to make it possible to bring a discrimination claim based on a combination of two protected characteristics. For example, an Asian woman who feels she has been less favourably treated, may bring a claim that she has been discriminated against specifically because she is an Asian woman. This is to be distinguished from a person who brings two concurrent claims, one for race discrimination and one for sex discrimination. The Asian woman who claims dual discrimination may be unable to show that she has been discriminated against because she is Asian (because male Asians are not suffering less favourable treatment) or that she has been discriminated against because she is a woman (because non-Asian women are not suffering the same less favourable treatment).

The purpose of this provision in the Act is to recognise that people do suffer less favourable treatment on account of stereotypes relating to, for example, women from a particular race.

It remains to be seen whether this new category of claim will be brought into force. There are doubts amongst discrimination lawyers as to whether the coalition government will keep this provision. So again, it is a question of watch this space.


What immediate steps should we be taking?

Given the uncertainty as to whether certain provisions of the Act will ever come into force, it is advisable not to act over-hastily. However, since most of the main provisions of the Act will come into force in October 2010, including certain key provisions such as those relating to disability discrimination, we do not recommend simply waiting until October. A prudent employer can do certain things now:

  • Review the three draft Codes of Practice (Employment, Equal Pay and, if relevant to your organisation, Services, Public Functions and Associations) to check for areas where new compliance measures will be required.
  • Amend current policies in order to refer to the Act and the Codes.
  • Ensure that your policies cover the extended definitions of disability, as well as the extension and harmonisation of associative and perception of discrimination and harassment. Consider adding specific examples to your policies to illustrate these issues.
  • Research the impact that any requirement to publish pay would have on your organisation. Will it cause issues? If so, it would be prudent to consider redressing these in advance of any obligations.
  • Consider what additional training is required to ensure that employees in management or supervisory roles are aware of their obligations.

Click on the following link for the Government Equalities Office website, which contains all the latest news from the government on the Equality Act 2010 and its implementation, as well as links to the text of the Act and the Explanatory Notes.

Click on the following link for the Equality and Human Rights Commission website, which gives more information the Equality Act 2010 and the draft Codes of Practice.