The Equality Act 2010 is a big piece of legislation. Rushed through parliament in the dying days of the Labour government it consolidates all the existing anti-discrimination legislation, i.e. the legislation banning discrimination on the grounds of sex, race, disability, religion or belief, sexual orientation and age, with the main aim of reconciling some of the discrepancies and differences in the current antidiscrimination legislation and to provide a simpler, more consistent and effective legal framework for preventing discrimination. Most of its provisions will come into force in October 2010.

Amongst other provisions, the Equality Act 2010 will:

• define discrimination as less favourable treatment because of a protected characteristic: disability, age, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation - this covers less favourable treatment due to an association with someone with a protected characteristic or an incorrect belief that someone has the protected characteristic;
• allow dual discrimination claims to be made in relation to direct discrimination combining no more than two of the following protected characteristics: age; disability; gender reassignment; race; religion or belief; sex; and sexual orientation;
• repeal the list of capacities set out in the Disability Discrimination Act 1995, which currently forms part of the definition of disability;

This article focuses on the impact of the Act on employer’s responsibilities and the risks they could face by not fulfilling these; with particular reference to the provision for dual discrimination claims and the repeal of the capacities set our in the Disability Discrimination Act.

Looking first at dual discrimination claims. To succeed in such a claim employees would have to prove that they have been treated less favourably than others because of the combination of protected characteristics, such as for example age and gender. They will not have to show that they have been discriminated against on both individual grounds. This means that a woman of child-bearing age who has not received a job offer or promotion on what she believes to be the grounds that she is more likely to be absent from work due to maternity leave can raise a dual discrimination claim on the grounds of age and sex. Combined discrimination claims are likely to be hard to defend so employers must take extra care to ensure that decisions about staff are based solely on merit. In addition to the avoidance of risk of discrimination claims, selecting staff for employment or promotion based solely on merit is a much surer way of ensuring you have the right people, performing the right roles within your business – passing somebody over because they might eventually be absent for a long period is not just discriminatory but illogical and unethical.

The same argument applies to the employment of disabled employees. The removal of the list of capacities set our in the Disability Discrimination act, in addition to multiple additional provisions for the protection of disabled individuals, will make it potentially discriminatory, on the ground of disability, for employers to ask job applicants questions about disability or health before making a decision on whether to proceed with applications or offer employment.

It will also be potential discrimination for employers to require job applicants to complete a medical questionnaire or undergo a medical examination prior to deciding whether or not to select them for a role.

If there is a justifiable reason for doing so, employers will be able to make enquiries about a job applicant’s health, for example so that it can establish whether or not they will be under a duty to make reasonable adjustments if it recruits the applicant. However, the rejection of an otherwise suitable applicant, following enquiries about disability or health, will be potentially discriminatory on the ground of disability. In such cases, if the employer’s actions are challenged in an employment tribunal, the employer will be obliged to satisfy the tribunal that its decision to reject the applicant was for a reason other than disability.

These examples serve to remind employers that fair and relevant selection procedures are always necessary in employment decisions and that a failure to use these could land you in difficult and potentially expensive situations.

We are experts in recruitment and selection, performance management and organisational restructuring; just some of the areas in which the factors discussed in this article should be considered, so if you require assistance with an existing issue, have a nagging doubt, or would just like an impartial and informed ear to bounce the situation off please contact your HR Advantage consultant or e-mail Campbell@hradvantage.co.uk.

Note: We will be writing directly to our current clients about the Act in the next few weeks and also holding a webinar about the new Act in September.