November 2010 Newsletter
The Equality Act 2010On 1st October this year the Equality Act 2010 came into force. The Act:-
The Act refers to 9 “protected characteristics.” It is unlawful to treat an employee less favourably because of a protected characteristic. These are:-
Discrimination is not only unlawful on the basis of an employee’s own “protected characteristic,” but also if it is based on the employee’s association with someone with a protected characteristic or the employer’s perception that the employee has a protected characteristic. So for example, it would be unlawful to discriminate against an employee on the basis that they are looking after a disabled relative (association), and unlawful to discriminate against someone perceived to be gay, even if that was not the case (perception). Pre Employment Health QuestionnairesIt is now unlawful for employers to ask questions about a job applicant’s health before an offer of employment is made. This does not prevent a prospective employer
HarassmentHarassment is defined in the Act as unwanted conduct related to a relevant protected characteristic or of a sexual nature, which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. An employer will be liable for “Third Party harassment,” i.e. harassment of an employee by for example a visitor or member of the public, if the employer failed to take such steps as would have been reasonably practicable to prevent the third party from doing so, if the employer knows that person has been harassed in the course of their employment on at least 2 other occasions (not necessarily by the same third party). Pay Secrecy clauses and Equal PayAny provision in an employment contract, which prevents disclosure of a pay differential, is unenforceable if the disclosure is made for the purpose of finding out whether a pay difference is connected to a particular characteristic |
Changes to Disability DiscriminationThe definition of disability has been simplified to cover someone who has a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. Whereas previous case law meant that a person who complained of discrimination because of their disability had to compare themselves with a non disabled employee in the same situation, that is no longer required. It is unlawful to discriminate against a person for a reason which arises from their disability. For example a disabled employee who is dismissed for having been off sick, does not have to show that a non disabled employee who has a similar sickness record would have been treated differently. It is enough for the employee to show the treatment was for a reason connected to their disability, to establish that the discrimination may be unlawful if the employer cannot justify it. To defend a claim of disability discrimination an employer must show that the treatment complained of was “a proportionate means of achieving a legitimate aim.” It is now possible to “indirectly discriminate” against a disabled person. Points for actionWe can help you with any of the following suggestions for further action
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