Worried about the Equality Act? Proportionality is the key

In my view the Equality Act 2010 does not make as drastic a change as has been reported in the national media, with its reports that ‘office jokes are outlawed’. These stories seem to be scaremongering on the part of the Daily Mail and others.

The key changes are these:

• Equal Pay: Employers cannot use confidentiality or gagging clauses to stop employees discussing pay. 
• Health: Employers are restricted in asking potential employees any health-related questions prior to the role being offered.

Sued for making an office joke?

On a wide interpretation of the Equality Act, there is the potential that a harassment claim could be constructed even if the employee did not hear the office joke.

However the key issue here, which the national newspapers seem to be disregarding, is that of proportionality. The previous legislation covers this issue, and the Equality Act simply builds upon that.

The office joke is unlikely to die (unless people lose their sense of humour). However, as always, employers need to consider safeguarding their employees against harassment by ensuring that they have an easy-to-use grievance and disciplinary procedure.

Client harassment on holiday

Here again, claims of harassment could potentially be constructed.

However, travel companies should not be hugely concerned that a claim will arise from a situation where one holidaymaker makes, for example, a sexist statement to another.

Importantly, it should be at the forefront of a travel company’s mind to mitigate these types of situation if they do arise. For example, if an issue is reported, the company should assist the holidaymaker by investigating. If a claim were to arise in these situations, it would be more likely to be brought under the Package Travel Regulations 1992, 15(8), rather than under the Equality Act.

Again the key issue in these situations is ‘proportionality’. Was the sexist comment made, and then was this dealt with appropriately? Or did the holidaymaker suffer a bombardment of comments during a two-week holiday while the travel company neglected to deal with the matter appropriately?

If the company is happy that the matter has been dealt with appropriately from the moment of the complaint, then it is likely they can be confident of dispelling the claim.