October 5, 2010
The bulk of the Equality Act 2010 (the "EA2010") came into force at the beginning of October 2010.
Those based in the UK have probably seen a lot of coverage about the more controversial aspects of the EA2010. We summarise below what this means for most employers in practice and the practical steps that employers should be taking. We would also like to offer our help.
Background
The purpose of the EA2010 is to consolidate all existing discrimination legislation into one single statute. The new legislation runs to 251 pages and contains 28 schedules.
Whilst the EA2010 has been billed by some commentators as the biggest overhaul of equality legislation in a generation, the EA2010 is largely a consolidating measure which is designed to iron out a number of inconsistencies that have grown up in the existing law.
What does it mean for you in practice?
We believe that the most significant changes for employers are as follows:
- Pay Secrecy. A limit on the enforceability of pay secrecy clauses which seek to prevent employees discussing their pay or bonuses with colleagues.
- Health Questionnaires. A prohibition on generic questions about the health of a job applicant at pre-offer recruitment stage. There are exceptions, including for monitoring and for enquiries about ability to carry out functions that are intrinsic to the work concerned.
- Disability. A reversal of the controversial House of Lords decision in London Borough of Lewisham v Malcolm (2008) by way of the introduction of the new concept of discrimination "arising from" disability. This will, again, enhance the protection afforded to disabled employees who are absent on long-term sickness leave. Where an employer wishes to dismiss a disabled employee as a result of absence arising from a disability, the employer will need to show not only that it has complied with the duty to make reasonable adjustments but that the dismissal is "a proportionate means of achieving a legitimate aim".
- Third-Party Harassment. An extension of the existing duty of employers to prevent harassment by third parties on the grounds of sex to cover most other protected characteristics.
Some of the more controversial measures contained in the EA2010 are not being bought into force at the current time. These include:
- the power to enable the Government to require private sector employers to make public information regarding gender pay differentials; and
- the general exception for voluntary "positive action".
Action Required
The following internal documents and policies should be reviewed and updated:
- Equal Opportunities / Diversity Policies.
- Anti-Harassment / Dignity at Work Policies.
- Internal Standard Form Compromise Agreements.
- Job Application Forms.
- Employment Contracts, Bonus Schemes, Confidentiality Provisions, Bonus Award Letters and Pay Review Letters.
- Training materials.
Now may also be a good time to consider whether to run (or re-run) equality training for managers within your organisation. Not only does this reinforce corporate values but, in appropriate circumstances, it can prevent an employer’s liability for acts of discrimination carried out by employees.
How we can help
We have considerable experience helping clients draft and amend their employment documents and policies. When reviewing policies, we always look to strike the right balance between legal compliance and practical application — and can even suggest ways to make them more succinct.
We have provided diversity training for a number of clients and have particular expertise adapting US focused training programs for use in the UK.
Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these cases and developments. Please feel free to contact the Gibson Dunn lawyer with whom you work or the following lawyers in the firm’s London office:
James A. Cox (+44 207 071 4250, jacox@gibsondunn.com)
Daniel E. Pollard (+44 207 071 4257, dpollard@gibsondunn.com)
© 2010 Gibson, Dunn & Crutcher LLP
Attorney Advertising: The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.