Employment Law Update - March 2011


1. Equality Act 2010 - Positive Action

On 6th April 2011, section 159 of the Equality Act 2010 comes into force.

What does this mean?

In specific circumstances, section 159 enables employers to use positive action to address needs or disadvantages of a protected/under-represented group when recruiting and/or promoting.

These specific circumstances are as follows:

a) both the person with a "protected characteristic" (based on age, gender, race etc) and the person who does not have a "protected characteristic" must be viewed as equal candidates and;

b) the employer does not have a policy of treating persons of the protected/under-represented group more favourably in comparison with those persons who do not share the relevant protected characteristic; and

c) the more favourable treatment is a proportionate way of minimising the disadvantage and/or encouraging participation.

What should employers do?

Employers should have a policy implementing the spirit of positive action as outlined in section 159.

The policy should anticipate that where there are equally qualified candidates for promotion and/or recruitment, the employer is able to take positive action in favour of a protected/under-represented group as long as such favourable treatment is a proportionate way of minimising the disadvantage and/or encouraging participation. A failure to have an appropriate policy will mean that section 159 applies in any event. The absence of any policy may not look particularly good were a claim to proceed to the employment tribunal.

2. Bribery Act 2010 - Delay in coming into force

Despite receiving Royal Assent on 8th April 2010, the Bribery Act 2010 will not be coming into force this April as anticipated.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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