The Equality Act 2010 was approved by Parliament last month. Lawyer Arpita Dutt looks what it contains and what it might mean for your practice.
A range of anti-discrimination laws have been in place since the 1970s – covering equal pay, sex and race discrimination, followed by disability discrimination in the 1990s and recent laws covering discrimination on grounds of religion or belief, sexuality, transgender status and age.
There have been many inconsistencies in the legal protection provided under these laws and so a new Equality Act passed last month will harmonise the current legislation and strengthen the protections provided.
The main provisions of the Act are due to come into force from October this year – and they have some implications for the NHS and GP practices. This article will explain the components of the new Act and what it means for your practice.
Gender pay gap
The Act includes new equal pay measures with the aim of achieving greater transparency and protection for equal pay alongside Government national targets to reduce the gender pay gap prevalent in many professions.
These measures have coincided with the publication of a BMA report that showed women doctors earn 18% less than male doctors – a raw pay gap of up to £15,245.
Employers will no longer be able to discipline staff for discussing and comparing their pay, where this may be linked to discrimination, as the Act prevents such secrecy clauses in employment contracts which seek to conceal inequality.
Individuals may also get greater access to information about pay within their workplaces. Employers’ monitoring and reporting on gender pay will be encouraged, with the expectation that organisations employing over 150 people within the public sector (such as the NHS) will be required to publish pay gap data.
There is also the potential for this to become compulsory across larger organisations employing over 250 people in the private and voluntary sector by 2013.
Secrecy surrounding pay, terms and conditions can be a barrier for people in knowing whether they have viable grounds to bring a claim. GP practices may understandably be very hesitant in disclosing such information because of the duties of trust and confidence which they have to employees and the data protection issues involved. However, employees are entitled to submit questions to the employer to help determine whether they might have an equal pay claim, and to formulate such a claim in the best way.
In practice, equal pay is achieved by implying an equality clause into the woman’s contract of employment which operates to replace her less favourable term with the equivalent more favourable term of the man’s contract. However, the equality clause will not amend the woman’s contract if the employer shows that the difference in contractual terms is a reasonable and proportionate means of achieving a legitimate business aim.
It remains best practice for GP practices to adopt and publicise equal opportunities policies to all staff and ideally to encourage an atmosphere of transparency around issues such as terms and conditions linked to pay.
The Act aims to eliminate the stigma which job-seekers with disabilities still too often encounter. It will now be unlawful to face invasive questions about disability and health before the job offer stage in a recruitment process (unless intrinsically necessary for the role or to make reasonable adjustments).
This is particularly important for those with mental health or other conditions involving social stigma, such as HIV or AIDS because the very fact of having to decide whether to disclose their condition, or to lie on an application form, can be a barrier to an individual at the very outset of the recruitment process.
An employer is permitted to ask these questions after the job offer stage, in order to consider whether any specific adaptations will be necessary. However, if an individual finds that their job offer is withdrawn following such a disclosure, they will have a claim, and the employer will have to prove that the withdrawal was not due to discrimination.
Many GPs are carers of children or older relatives. In respect of these carers, the Act protects people from being discriminated by reason of their caring responsibilities.
Sexual orientation and religion
The Equality Act also covers the provision of goods and services to consumers – including NHS healthcare services.
In general, it is good for the practice to take time and ensure equality for all those that use GP services and the new Act means that public bodies will need to think carefully when designing and delivering services.
For instance, GP practices may want to think about running promotional campaigns for lesbian, gay and bisexual people to attend sexual health clinics or for Muslim women to attend for smear tests.
The protection in the workplace against unjustifiable age discrimination has also been extended by the Act to those aged over 18 who are buying goods and receiving services.
There will also be a duty on public bodies to consider the needs of young people and older adults.
Employers will be able to take positive action when employing someone to ensure certain groups are not under-represented.
If all other candidates were equally well qualified, then there is a voluntary measure in the Act that allows an employer to permit selection of the under-represented candidate
For example, only 46% of female GP’s are partners and of those who are not partners, 76% would like to achieve partnership according to a the National Working Group report published in October 2009 on Women in Medicine.
Strategic Health Authorities have an important role to play alongside other bodies to tackle socio-economic disadvantage. The Act requires that public bodies consider how they can better target their policies and resources to help those that are most disadvantaged. It is a new over-arching strategic legal duty and not one that is justiciable by an individual.
The commissioning of contracts and services is an area that will also become subject to equality considerations under the new Act. It will be incumbent on contracting authorities to ensure that equality factors are considered to help contribute to delivery of their procurement objectives, to consider using equality related award criteria where relevant to the subject matter of the contract and to consider incorporating equality related contract conditions where they relate to the performance of the contract.
Arpita Dutt is a partner in the employment department at Russell Jones and Walker
Arpita Dutt is a partner in the employment department at Russell Jones & Walker