Equality Act 2010 and Minimum Wage

September 2010

Equality Act 2010

The 2010 Equality Act was passed in April 2010 and ties up all existing equality legislation. In anticipation of the Equality Act 2010 coming into force Simply-docs updated its Equality, Diversity and Discrimination documents at the end of May this year as reflected in the Simply-docs May Newsletter.

Accordingly, the following changes to equality legislation in force from October 2010 have already been incorporated into the Simply-docs Equality, Diversity and Discrimination documents: a new claim of direct discrimination because an individual is perceived to have, or is associated with someone who has, a protected characteristic; a new claim of harassment because an individual is perceived to have, or is associated with someone who has, a protected characteristic; a new claim of third party harassment; a new claim of indirect disability discrimination and discrimination arising from a disability; a new direct sex discrimination claim for same pay; pay secrecy clauses will be unenforceable in certain situations, and tribunals will be able to decide when employees working abroad can bring discrimination claims.

The first part of the Equality Act 2010 is coming into force this October. One of the key changes that it is important for the employer to keep an eye on relates to the ability of prospective employers to ask health-related questions before short-listing or making a job offer to a job applicant.

Under the new Act asking health related questions is now only permitted if it is necessary for the employer to do so for one or more specific reasons permitted by the Equality Act. These specific reasons are covered in more detail in the relevant documents. A health related question that does not fall within one or more of the exceptions will be prohibited. Asking a prohibited question does not of itself give a job applicant a tribunal claim.

However, if a job applicant who has been asked a prohibited question does bring a claim of disability discrimination, the burden will be on the employer to prove that they have not discriminated. Accordingly, the following documents in the Equality, Diversity and Discrimination sub-folder have now been further updated to reflect the specific use of pre-employment health screening questionnaires:

- Guidance Notes for Employers: Equal Opportunities and Preventing Discrimination
- Equal Opportunities and Diversity Policy
- Equal Opportunities & Diversity Policy with Grievance & Disciplinary Procedures
- Disability Discrimination Guidance Notes

As the Equality Act 2010 also has an impact on the recruitment process we have now updated our Job Application Forms sub-folder accordingly.

The following documents in the Recruitment Documents and Job Application Forms sub-folders have now been updated in line with the new provision under the Equality Act that restricts the circumstances in which employers can undertake health screening at the early stages of a recruitment exercise:

- Recruitment Policy
- Pre-employment Medical Questionnaire short-form.
- Pre-employment Medical Questionnaire long-form.
- Medical Questionnaire Guidance Notes.

Minimum Wage

From October 2010, National Minimum Wage rates are to rise to £5.93 an hour for workers aged 21 and over.

A minimum wage rate for apprentices will also be introduced. Apprentices under the age of 19 are entitled to £2.50 per hour. Apprentices aged 19 and over are entitled to £2.50 per hour in their first year of apprenticeship.

Young workers, i.e. those aged 16-17 years old, are currently entitled to a minimum rate of £3.64 per hour.

The contents of this Newsletter are for reference purposes only and do not constitute legal advice. Independent legal advice should be sought in relation to any specific legal matter.

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