How the Equality Act affects employment
25th November, 2011 by Alistair Dunsmuir
All golf clubs need to be aware of recent changes to anti-discrimination legislation. The changes, while not numerous, are significant.
The Equality Act 2010 is the single largest piece of anti-discrimination legislation to be created in the UK. It streamlines and restates existing legislation, with the aim of making laws surrounding discrimination easier to understand and workplaces fair environments.
The majority of the act came into effect on October 1, 2010. However, certain elements will come into force at different times to allow individuals and organisations time to prepare for the new laws. Nevertheless, it is already provoking concern among some golf clubs.
People protected
Protecting minority groups and making life fairer for them is undoubtedly a good objective. However, some clubs are already struggling with the cost of red tape and this act is likely to add to the compliance burden.
The act will protect individuals on the grounds of sex, race, age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, religion or belief (including lack of belief) and sexual orientation. These are called the ‘protected characteristics’. The definition of ‘gender reassignment’ has been broadened, while that of ‘disability’ has been changed slightly, making it easier for employees to fall within this definition.
Discrimination
There are seven main forms of discrimination:
1. Direct discrimination – discrimination against a protected characteristic.
2. Associative discrimination – employees do not need to show that they themselves have a protected characteristic. Instead, if they can show that they have been treated less favourably because they associate with someone who, for example, is of a certain race or has a certain sexual orientation, then this is potentially discriminatory.
3. Discrimination by perception – where an employee makes a claim on the basis of perception of a protected characteristic – even if the perception is wrong. So, for example, if a junior golf club pro is excluded from a particular event while the senior pro is not because the employer thinks he is younger than he actually is, then this is potentially discriminatory on the grounds of perception of age.
4. Indirect discrimination – where a policy that applies to everyone disadvantages a person with a protected characteristic.
5. Harassment – where an employee finds something significantly offensive, even if it is not directed at them.
6. Harassment by a third party – where a third party, such as a customer or contractor, harasses an employee.
7. Victimisation – where someone is treated badly because they have made or supported a complaint or grievance under this legislation.
Pre-employment questionnaires
The Act will also prohibit the use of pre-employment questionnaires before a job offer is made. These should only be used in very limited circumstances and strictly to assess a candidate’s ability to perform an ‘intrinsic function’ of the job. However, employers will still be able to ask generic health questions once a job offer is made. Employers who have made a job offer or employed someone already will need to be extremely careful about what action they take.
Confidentiality
The act brings in a further change in relation to keeping pay a secret. Where a contract of employment requires an employee to keep his / her pay a secret, the Act now makes this requirement unenforceable. This is envisaged to be a problem in many organisations, including golf clubs.
This does not mean that employers will have to disclose the pay of individuals to other employees within the business; they just won’t be able to take action if an employee decides to share this information. However, employees who, because of their roles, for example managers, payroll or HR personnel, have knowledge of salaries will still be required to keep this information confidential. Action can be taken in the event of a breach.
Next steps
The scope of this act is far greater than previous legislation and extends well beyond the workplace to cover the provision of goods and services to consumers.
As successful discrimination claims have unlimited financial liability, employing clubs should consider the following and take advice where appropriate.
• Review your equal opportunities policy and your contracts to make sure they cover the new provisions.
• Train your course, bar and restaurant and other managers so that they clearly understand what constitutes discrimination, especially in areas around association and perception.
• Re-issue your equal opportunities policy and make it clear that your organisation will not tolerate acts that could be considered discriminatory.
Clearly all golf clubs will need to familiarise themselves with the new act and ensure that appropriate policies are put in place, remain in force and are complied with.
Adrian Houstoun is a VAT partner at chartered accountant Kingston Smith LLP
The information contained in this article was correct at the time it was sent to Golf Club Management magazine, which was before the date it was published on this website