Should you really care about the Equality Act?
Harriet Harman's baby has been born: last week, the Equality Act emerged from its governmental uterus and became law.
Without going into great detail about its components, which have been listed everywhere, should banks and recruiters be overly bothered?
The verdict from lawyers appears to be no. Not just yet, but maybe soon.
1) Health screening - no huge deal
If you're trying to hire someone, the Equality Act says you can't subject them to a pre-interview questionnaire which asks them about their health.
However, having interviewed them and made an offer you can then ask them about their health and require that they submit to a medical.
"You can ask questions, but not until you've made the offer," says Fraser Younson, head of employment law at Berwin Leighton Paisner. "You can then withdraw the offer if it transpires that they have a medical condition that makes them unsuitable and you can't make reasonable adjustments to accommodate it.
"In the past, it was often the case that people with a medical condition were turned down solely on the basis of the application form. This at least gets them to the starting gate," he adds.
2) Third party discrimination - existed anyway
The Daily Mail has been apoplectic about a provision in the Equality Act which talks about 'third party harassment' which will allow an employee to sue an employer if he/she happens to overhear or even learn about a sexist joke which had absolutely nothing to do with them.
Younson says this kind of thing already existed and is known as 'environmental discrimination.'
The Act also makes provision for 'associated discrimination' in which an employee can argue that he/she is being discriminated against by virtue of association with a 'protected group' (eg. pregnant women, women, ethnic minorities, religious groups, the elderly, the young, the disabled, the gay community, persons undergoing gender realignment). In reality, associated discrimination may be hard to prove. One man has already attempted to argue that he was discriminated against because his wife was pregnant - and failed.
3) Pay transparency - not a big issue now, could become one later
The real excitement for banks, and bankers, is the Act's stipulations regarding pay.
On one hand, it stops banks banning their employees from discussing how much they earned. On the other, it will require private sectors employers with more than 250 employees (most banks) to report their gender pay gap by 2013.
Younson says neither requirement is a big deal and that the gender pay gap element may yet be watered down. "The reality is that people who are going to talk about how much they earn already do it anyway," he says.
Younson adds: "It's meaningless to report the gender pay gap unless you're comparing like with like - you can't compare the pay of a female PA with that of a male M&A banker."
However, David Dalgano, an employment partner at law firm McDermott Will & Emery says the pay elements of the new Act have the potential to mutate into something significant.
"It's a slippery slope," he warns. "Banks will no longer be able to discipline people for talking about how much they're paid, and once the pay gap is reported people will still asking why there's such a big discrepancy between what men and women are getting."
With this in mind, Dalgano suggests pre-emptive action. "You need to be looking at why some people are paid more. Is it because they're threatening to leave? If so, and those threatening to leave are mostly men, this could become an issue."
