Last reviewed 19 July 2013
According to Bob Patchett, the Equality Act 2010 is simple to live with — provided you have done your homework.
Until recently, employers had to deal with a myriad of legislation that protected various categories of people from unfair discrimination, but most of these laws have now been brought together under the umbrella of the Equality Act 2010. The law does not suggest that everyone is equal; we are all different in some way or another, but all need to be given an equal opportunity to live happy, free and unthreatened lives.
Looking at the practical aspect of equal opportunities, if we discriminate against people because of their gender or the colour of their skin, for example, we immediately shrink the pool of candidates for work. This is clear to many employers. However, many others fail to see the benefits of completely equal opportunity and the useful diversity it brings.
Anti-discrimination legislation has been around for decades; the Equal Pay Act for example was enacted in 1970, yet women overall are still nowhere near pay equality with men. The Equality Act not only brings together all this discrimination legislation, but also strengthens it in a number of areas. We therefore need to look at our present performance in the equal opportunities arena, make sure that it is not wanting in any way, and see how changes brought about by the Equality Act need to be absorbed by our organisation.
What changes has the Act made?
Disabled people are given greater protection by the Act, which has broadened interpretation of the definition of disability to include, for example, an inability to cope with day-to-day activities that does not arise from just one ailment, such as poor eyesight. Someone suffering from long-term depression may have difficulty carrying out several human activities, such as making decisions and taking appropriate actions. The Act makes clear that these difficulties may amount to a significant problem and thus brings the person concerned into its protection, so the employer will have to take all reasonable steps to help him or her. Also employers need to ensure that, when they make changes to work arrangements, they do not cause people with protected characteristics such as disability, or responsibility for dependants, to be especially disadvantaged since this would constitute unlawful indirect discrimination. The only sustainable defence would be that the benefit to the organisation greatly outweighed the disadvantage to the protected employees, and that the employer had tried to accommodate those affected.
You need to take great care when recruiting. It is good practice to ask candidates invited for interview if any special arrangements need to be made to enable them to handle the interview or any tests, but otherwise you may not ask questions about health or disability until after you have made an offer of employment, unless a particular ability, such as good eyesight, is crucial to the job. You may make the offer subject to the satisfactory result of a medical but, if this identifies any disability problems, you should take all reasonable steps to enable the employee to do the work.
The Equality Act 2010 gives people with protected characteristics equal, not priority, treatment. When recruiting, for example, you should select the person who best meets the requirements of the job, but keep records to show that the selection criteria were fair, relevant and adhered to. If three fit white men and a disabled black woman apply for a job and one of the men is the best candidate, you offer him the job. But if the woman is one of two candidates with equal highest scores, you may offer the job to the woman if disabled black women are not well represented in your workforce. You may also encourage people with protected characteristics to apply or be trained for certain jobs if you have grounds for believing that people with that characteristic are not adequately represented among your staff.
Transsexuals are given greater protection by the Act whether they are contemplating or have already changed gender, even if they are not under medical supervision. Protection is also afforded to people associated with transsexuals, such as friends or family.
The Act gives the equal pay concept a boost by banning restrictions on people discussing their pay and thereby identifying pay inequalities between genders. A boost has also been given to women who have recently given birth. They have no right to breast-feed at work — although a wise employer would make suitable arrangements — but you must not prevent them from doing so in, for example, your public restaurant.
If you are a public body you are expected to take a proactive role in furthering the aims of the Act by setting equality objectives and publishing your progress towards them. In addition, you are encouraged to use your purchasing power to persuade your suppliers to meet the spirit of the Act in practical ways. This could have a major impact on organisations in the private sector.
Meeting the demands of the Act
As the bulk of the Equality Act 2010 carries over requirements that were set out in earlier legislation, you are likely to be meeting most of them already. However, you should check that this is indeed so and then go on to make adjustments to meet the new demands of the Act.
Make sure, for example, that there are no health questions on your application forms and that interviewers are clear that, when they meet candidates, they must not ask questions about health or disability, or how they will cope with family demands such as young children or adults in their care. If new or existing employees have a disability, be sure to recognise the broader interpretation of disability that now prevails, discuss the issue with the employees concerned and be prepared to go a long way to help them overcome their problems in doing their job. Interviewers may see practical problems in employing people with health problems, with dependent family or with characteristics, such as being transsexual that may cause them to be unpopular with their work colleagues. Indeed, interviewers and managers may well have prejudices themselves about candidates’ or employees' political or religious views. But these must be set aside. If there are problems, the employer must do all that is reasonable to overcome them and, in any case, has an over-arching responsibility to protect every employee.
Quite apart from the demands of the Equality Act 2010, there is ample evidence that people who are happy and contented at work, and who are free from any form of victimisation, work more effectively. Therefore, apart from legal and moral considerations, making sure that all your employees are in no way discriminated against and have the same chance as everyone else to work well and develop their abilities, is good business sense. So make this clear to all your staff, both managers and employees. Publish a clear policy encouraging equality of opportunity and condemning anything that impedes it, train your management staff, tell your employees how to behave and what to do if they have problems, and put in place a formal system to monitor your equality performance.
Give everybody the opportunity to work happily and to shine and you will take the Equality Act in your stride.