This Act comes into effect next month and whilst it is generally a consolidation of existing legislation, it does contain several new provisions which you will need to be aware of as they can have serious implications.

1) Pre-employment health questionnaires.

Except in certain limited circumstances employers will not be permitted to ask pre-employment health questions of a job applicant before either offering them work or including them in a pool from which a successful applicant will be drawn.

There are limited circumstances in which it will be possible to ask questions which are necessary for the purposes of:

  • Establishing whether the applicant will be capable to undergo an interview or other assessment
  • Establishing whether the employer has a duty to make reasonable adjustments in connection with the interview or assessment
  • Establishing whether the applicant will be able to carry out a function that is intrinsic to the work concerned (a job involving heavy lifting)
  • Monitoring diversity in applications
  • Taking positive action in relation to applicants with a disability (eg guaranteeing an interview to people with a disability)
  • Establishing that the applicant has a particular disability, where having that particular disability is a requirement of the particular role.

Clients should be aware that asking prohibited questions could lead to consequences including disability discrimination claims, investigation by the Equality & Human Rights Commission, a fine of up to £5,000 – as well as the associated legal costs.

You might well conclude that it would simplify matters considerably if you do not ask pre-employment health questions at all.

2) Pay Secrecy

It will be unlawful to prevent or restrict employees from having a discussion to establish if differences in pay exist that are based on protected characteristics (see below for definition). It makes any contractual terms requiring pay secrecy unenforceable because of these discussions. However, an employer can require employees to keep pay rates confidential from some people outside the organisation, for example a competitor company.

Enforcing this is another matter entirely.

3) Third Party Harassment

The Equality Act makes you potentially liable for harassment of your employees by third parties who are not employees of your company, such as customers. You will only be liable when harassment has occurred on at least two previous occasions, you are aware it has taken place, and have not taken reasonable steps to prevent it from happening again.

The moral of this is that you not only take action, but create the paper trail to prove what action you took.

What are Protected Characteristics ?

They are those grounds on which discrimination was already banned. They are:

  • Age
  • Disability
  • Gender Reassignment
  • Marriage & Civil Partnership
  • Pregnancy & Maternity
  • Race
  • Religion or Belief
  • Sex
  • Sexual Orientation

  The Act makes it easier for a person to show that they are disabled. It can include conditions like dyslexia and a number of conditions which are normally controlled by medication.