The Equality Bill is the biggest overhaul of anti-discrimination law in the UK for 35 years. It has been designed to simplify existing - and confusing - anti-discrimination measures including gender and disability discrimination.
It will affect all recruiters and employers because, while having been designed to make the law simpler, it will now make it much easier for individuals to bring complaints of discrimination if they feel their employer has treated them unfairly. Some of the changes to the law will mean employers will have to significantly change some of their established processes - such as they way they recruit staff - if they want to avoid complaints.
The Bill will receive Royal Assent this month, with the key provisions coming into force in October 2010.
We already have an equal opportunities policy in place. Do we need to review this?
Yes. Existing equal opportunities policies will need to be reviewed to make sure they are compliant with the new law.
Particular areas to consider are how you address disability issues to ensure you do not inadvertently discriminate against staff. Other policies will also need to be reviewed including recruitment and sickness absence to make sure they do not discriminate against individuals, particularly those with disabilities.
Employers will still be able to say that they have taken ‘reasonable steps' to accommodate an individual's needs in certain circumstances, which can avoid liability.
It is really important, however, that staff are retrained on the impact of the new Act and any changes to the company's policies and procedures, to ensure they don't break accidentally break the new rules.
I have heard a lot about ‘positive action' but I have no idea what it is and what I am supposed to do about it.
Positive action is probably more commonly known as ‘positive discrimination'. Under the new rules employers are allowed to discriminate in favour of a minority candidate who is as qualified as another candidate for a role, if that group is under-represented in the workforce.
This is likely to be a particularly tricky area of the new law. However, employers are not legally obliged to take such action, but merely have the opportunity to do so if they wish. Therefore, employers should treat this provision with care and take legal advice before making a decision, as those who get it wrong could face legal action from unsuccessful candidates who feel they have been discriminated against.
We always use pre-employment health questionnaires to ensure the general health and wellbeing of candidates for a job. Can we carry on doing this?
Under the new rules, pre-employment questionnaires are not allowed, except in very specific circumstances, such as where medical fitness is crucial for the particular job - for example, driving jobs.
Asking general questions about a person's health not related to intrinsic functions of the job will generally be prohibited.
Employers will need to be very confident that an exemption applies to allow them to ask questions about a prospective employee's health, or potentially face enforcement action from the Equality and Human Rights Commission.
Asking questions about a candidate's health also raises the possibility of them claiming disability discrimination if they are not appointed. Under the new rules, the onus will be on the employer to prove that any health issues were not relevant to the decision not to appoint. Employers won't be prevented from asking questions about an employee's health after a job offer has been made, for example, by making it conditional on completion of a medical. However, this provision means that employers will need to completely overhaul their existing recruitment processes. It will not be possible to have a ‘one size fits all' medical questionnaire.
Can we still ask job applicants whether they need any special arrangements for job interviews?
Yes. Employers are still bound by their duty to make reasonable adjustments for prospective employees.
The restrictions on pre-employment health questions don't apply to questions designed to establish whether the employer is, or will be, required to make reasonable adjustments for the purpose of an interview or assessment.
There has been a lot of media hype around gender pay reporting. What is this and what do I have to do?
Gender pay reporting and pay audits are designed to close the gap between men and women's salaries by requiring companies to make their pay schemes public. Despite the hype, the Bill only contains a power for the Government to make regulations in 2013 to require private-sector businesses to report on gender pay.
Until then, gender pay reporting is voluntary. The Equality and Human Rights Commission has published its proposals for voluntary pay reporting, which businesses should review and consider for the future, but at present there is no requirement to carry out an equal pay audit.
Sandra Wallace is employment partner and head of equality and diversity at
DLA Piper
