On 1 October 2010, most of the provisions of the Equality Act 2010 (the Act) came into force. The aims of the Act are to harmonise the various strands of discrimination law, to impose a duty on public sector employers to promote equality and to strengthen the law to encourage progress on the issue of equality.
The Act applies to nine protected characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion and belief, sex and sexual orientation.
The Act makes numerous changes to discrimination legislation, including (for example):
- extending protection from discrimination against those who are perceived to have a protected characteristic and those who associate with a person who has a protected characteristic, to all the protected characteristics except marriage and civil partnerships.
- the introduction of indirect discrimination for the protected characteristics of disability and gender reassignment.
- the replacement of ‘disability related discrimination’ under which a worker was required to show they had been treated ‘less favourably’, with ‘discrimination arising in consequence of a disability’ under which a worker will only be required to show that they were treated ‘unfavourably’.
- the extension of vicarious liability for employers in respect of harassment of their workers by third parties relating to any of the protected characteristics.
- giving Employment Tribunal’s the power to make recommendations for an employers wider workforce.
Pre-employment Health Questionnaires
Although the above changes are significant, the changes which the Act introduces relating to direct disability discrimination and pre-employment health questionnaires, may perhaps have the most impact on employers on a day to day basis.
The Act has two main effects:
- it prohibits employers from asking potential recruits questions about health, other than for prescribed reasons.
- it shifts the burden of proof automatically to the employer where a job applicant who has been asked a prohibited health question brings a direct disability discrimination claim.
The provisions of the Act mean that other than in certain prescribed circumstances (set out below) an employer should not ask about the health of a job applicant until that person has been either offered a job (on a conditional or unconditional basis) or been included in a pool of successful candidates to be offered a job when a suitable position arises.
However, an employer will be able to ask pre-employment health questions if the question is ‘necessary’ for the purpose of any of the following:
- establishing if an applicant will be able to comply with a requirement to undergo an assessment or establishing if the duty to make reasonable adjustments arises;
- establishing if the applicant will be able to carry out a function that is intrinsic to the work concerned (this will be judged after the employer has complied with the duty to make reasonable adjustments, if this is appropriate);
- monitoring diversity in the range of persons applying to the employer for work;
- taking permitted positive action in respect of those applicants who have a disability;
- if the employer applies a requirement to have a particular disability, establishing that the applicant has that disability.
Affect of the Act
Asking an applicant a prohibited pre-employment health question will not, in itself, amount to discrimination. However, the manner in which an employer acts upon the information provided by the applicant may amount to discrimination. This is similar to the position under the old discrimination legislation.
Essentially, the new element is the consequence of asking a pre-employment health question which is not necessary and not based on one of the prescribed reasons set out above, namely, to shift the burden of proof in a direct disability discrimination claim onto the employer. If the burden of proof shifts to the employer, discrimination would be inferred and an employer would be required to prove that there was no discrimination (as opposed to the claimant having to initially prove that there is a prima facie case that discrimination could have taken place). The affect is to increase the risk to an employer that it would not be able to successfully defend a direct disability discrimination claim.
It is common for employers to ask job applicants to complete a standard pre-employment health questionnaire which lists a number of ailments and conditions before the applicant is offered work. Following the tightening of the restrictions in the Act, it is very unlikely that such a standard questionnaire would fall within the category of being necessary to establish one of the five exceptions in the Act. Accordingly, employers should review and revise their recruitment procedures and provide their staff with training in respect of the new legislation to ensure that they are not acting unlawfully and increasing the risk of a successful direct disability discrimination claim.
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