The bulk of the Equality Act 2010 (the "Equality Act") came into force on 1 October 2010. The key practical changes are summarised in our previous client alert here and include a limit on the enforceability of pay secrecy clauses, a prohibition on generic questions about the health of a job applicant at pre-offer recruitment stage, an enhancement to the protection afforded to disabled employees who are absent on long-term sickness leave and 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 (such as race, sexual orientation, religion, disability, etc.) (please click here for further details).

On 1 April 2011 one of the most controversial measures in the Equality Act will come into force. Employers in the UK will be permitted for the first time to prefer a "protected characteristic" candidate over a non-protected characteristic candidate for recruitment or internal promotion in circumstances in which both candidates are equally well qualified.

In order to engage in such positive discrimination, employers will first need to satisfy themselves that either: (a) persons who share a protected characteristic suffer a disadvantage connected to the characteristic; or (b) that the persons with the protected characteristic are underrepresented in the job in question. Employers will then need to show:

  • that the protected characteristic candidate is as qualified as the non-protected characteristic candidate;
  • the employer does not have a policy of treating protected characteristic candidates more favourably then other employees; and
  • that the action in question is a "proportionate means of achieving a legitimate aim".

Unfortunately, the statutory language is ambiguous and will require considerable clarification by the courts and tribunals.

Clients who have not already done so should review their internal policies, contracts and application forms to ensure that they have been updated to reflect the changes implemented by the Equality Act 2010.