This month we have a special edition focusing mainly on the Equality Act 2010. The Act has consolidated much of the former discrimination legislation and introduces the important concept of "protected characteristics" as well as codifying an extension of rights with the concept of associative discrimination.
Subscribers can access our detailed guide to the Equality Act 2010 here. However, we have highlighted several features of the legislation in the form of blog posts which you can access from the links below. Subscribers should also note that template documents and guidance notes in the subscription area of our website have been comprehensively reviewed and updated and we have lots of additional content which we hope you will find useful. If you have not yet subscribed, you may be interested to know that our rates start from only £99 per month for web access, regardless of the size of your business and the number of your employees. If you are interested in the service and would like to arrange a free visit, please call free on 08000 320 974 or send me an email.
We also have news about flexible working and references.
This month's news:
1. Equality Act 2010 - a general note
With effect from 1 October 2010 the Equality Act 2010 has repealed previous Acts of Parliament and revoked previous regulations dealing with anti-discrimination law. This is especially significant in the employment law field. For that reason, even though the Act makes few changes to the substance of previous law, most of this newsletter is given over to looking at particular aspects of it.
2. Equality Act 2010 - compromise agreements
The general rule is that informal "out of court settlements" of employment disputes are not legally binding in the sense that they cannot exclude an employee's right to take the matter concerned to an Employment Tribunal. As is well known, one exception to this general rule is a formal "compromise agreement". Provided it complies with conditions set out in the Employment Rights Act 1996, a formal compromise agreement settling an employment dispute will normally be fully binding on both parties.
3. Equality Act 2010 - disability discrimination
As noted above the substance of previous law making it unlawful to discriminate against a person in the employment field because of disability remains generally unchanged by the Equality Act 2010. However various detailed changes are probably more significant if the "protected characteristic" is disability than if it is one of the other eight protected characteristics.
4. Equality Act 2010 - dual discrimination
Arlene Phillips, one of the judges on TV's "Strictly Come Dancing" was aged 66 when she was not reappointed. Neither her age nor her sex on their own was the reason for her non-reappointment - this was provable from the fact that another judge was 65 and yet another judge was female. Under the law at the time (making other assumptions) she would not have been able to win either an age discrimination or a sex discrimination claim as each claim would have had to be considered separately. Neither claim could stand up on its own and so she, or at least an employee in a similar position, would have lost a discrimination claim. However on the basis that the reason for the refusal to reappoint her was combination of her age and her sex, the new "dual discrimination" provision in the Equality Act 2010 could make the situation different.
5. Equality Act 2010 - pay secrecy clauses
The official June 2008 White Paper on the Equality Bill said that it would "ban pay secrecy and 'gagging' clauses which stop employees discussing pay with their colleagues". The idea, of course, was to remove one of the practical difficulties sometimes faced by employees (generally women) seeking to bring equal pay claims on the basis that they are paid less than employees of the other sex who have been doing the same work, work of equal value or work rated as equivalent.
6. Equality Act 2010 - pre-employment health questions
With a few necessary exceptions the Equality Act 2010 makes it inappropriate for an employer to ask a job applicant any health related questions before offering work to the job applicant. Merely asking questions about the job applicant's health is not unlawful disability discrimination but anything the employer does in reliance on information given in response to such questions may be. Also merely asking the question may give the Equality and Human Rights Commission power to investigate and issue an "unlawful act notice".
7. Equality Act 2010 - positive discrimination
As a general rule, positive discrimination in favour of a particular category of persons involves discrimination against those not in that category. Depending on the particular situation, positive discrimination in favour of one category of persons is therefore likely to be unlawful discrimination against others.
The Equality Act allows what it calls "positive action" in some situations...
8. Equality Act 2010 - transsexuals
The specific change in the law made by Equality Act 2010 in relation to transsexual people is short and easy to state. The new wording means that the person concerned need not be under medical supervision to be able to sue for unlawful discrimination. This is a change from previous law, although the substance of previous law making it unlawful in the employment field to discriminate against a person because of gender reassignment or transsexuality remains unchanged.
9. right to request flexible working
The Coalition government has announced two "family friendly" employment law proposals, following a commitment in the Coalition's "programme for government" which stated "We will extend the right to request flexible working to all employees, consulting with business on how best to do so" and "We will encourage shared parenting from the earliest stages of pregnancy including the promotion of a system of flexible parental leave"
10. job references
As is well known there is no general rule that an employer must give a reference for an (ex-)employee, but if he does give one he must take reasonable care to ensure that it is fair. A case at the end of September in the Employment Appeal Tribunal shows how important it can be to take care when giving a reference for an ex-employee.
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