What is the Equality Act?
The Equality Act provides a legislative framework to protect the rights of individuals and provide equality of opportunity for all. The Act has updated and simplified previous legislation and delivers a simple, modern and accessible framework of discrimination law which protects individuals from unfair treatment and promotes a fair and more equal society.
Most of the provisions came into force in the UK on 1st October 2010 and replace a number of pieces of legislation such as the Race Relations Act of 1976 and the Disability Discrimination Act of 1985 so that fair working measures are basically combined under one act.
The legislation now covers the following areas, where discrimination is based on:
- Pregnancy and maternity,
- sexual orientation,
- sex,
- religion or belief,
- race,
- gender reassignment,
- disability and age.
There are many new definitions of discrimination which as an employer you definitely need to be aware of such as:
- discrimination by association,
- perception discrimination, and
- indirect discrimination.
The purpose of this article is to look at the implications from a hiring perspective rather than the overall implications but, an excellent overview of the implications of the Act can be found on the ACAS website on the link below:
http://www.acas.org.uk/CHttpHandler.ashx?id=2833&p=0
Health Screening:
What I want to look at today is the affects that the Act will have on hiring and how to deal with them.
The main outcome of the Act is that, barring certain exceptions detailed below, employers will not be able to ask pre-employment questions. Employers will be able to ask medical questions or ask applicants to take a medical assessment after an offer has been made but only so that adjustments can be made to accommodate the new employee.
The Exceptions:
- To find out whether the applicant can comply with a work requirement or the interview.
- To find out if the employer has to make reasonable changes to allow the interview to go ahead.
- To find out whether the applicant can carry out a function required for the role.
- To monitor diversity within the applicants.
- If a role requires a person with a disability, to establish that the applicant has the disability.
- To take positive action to enable disabled people to overcome a disadvantage.
- To vet applicants in relation to national security.
So what does this mean?
The main point is that asking the questions is not discriminatory but acting on the responses could be discriminatory and allow unsuccessful applicants to submit a claim to the employment tribunal. The burden is then on the employer to demonstrate that there was no discrimination and why another applicant was offered the role or that the claimant wasn’t considered right because of qualification and ability to carry out the role.
In today’s litigious society this can put great pressure on employers and means changing the way you hire.
From a practical point of view I am sure we are all totally against discrimination and the Act is very positive in this way. We only have to look at our own workforces, however, to realise that some people take lots of time off for various illnesses whilst others take minimal or no time off.
Sometimes people taking lots of time off goes back to the employer’s business environment being negative and not motivational so staff are more likely to take time off for minor situations. Sometimes, however, there are people who just don’t care and create an additional work load for the rest of the team due to their unreliability. As a potential employer I would want to establish this and under the new legislation would find it very difficult.
The likely outcome is that if employers have an inkling that someone has illnesses, etc., (good interviewers develop a good gut feel) then rather than asking questions to establish the true situation, they will carry out the interview without asking and find other reasons which could easily be documented as to why they did not make the hire.
The act could then be counter productive in terms of employers not wanting to take risks when they cannot verify someone’s health. So, applicants could be discriminated against more easily and the savvy employer with good interview notes would be able to provide plenty of justification for not making an offer or hire. On top of this there would be no obvious grounds for the applicant to go to a tribunal because there were no signs of discrimination.
In summary, the Act is sensible but by moving too far to protect the applicants could actually act against them.
A Small Addendum regarding The Apprentice series which finished in December in the UK.
A little late but anybody who watched the week in December when the candidates were interviewed will have learned exactly how not to interview someone.
Many of the questions were dubious, at best, under the new Equality Legislation, and were insulting for the candidates for the high profile role. If these techniques were applied in a real environment I am confident the candidate would decline the opportunity. The methodology I have been demonstrating may not make such an interesting television programme but it is effective and keeps the candidate onside.
We will be back soon with more hints and tips on how to make the best hires and retain the best staff.
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