UK: Equality Bill

Last Updated: 17 October 2008
Article by Robert Hill, Nick Dent and Adam Lambert

With the introduction of the Equality Bill looming, we highlight the key changes to the existing legislation.

"Everyone has the right to be treated fairly and to have the opportunity to fulfil their potential". That is the backdrop to the Government's White Paper "Framework for a fairer future – the Equality Bill", which was published in June 2008. An extensive response to consultation followed in July 2008. The stated aims of the new Bill are to "strengthen protection, advance quality and declutter the law".

Equality has become an increasingly pressing issue as concerns such as gender pay gaps and differential treatment of those from an ethnic minority or of older employees have come more into the public consciousness. This Bill seeks to address those concerns.

Declutter the law

At present there are nine major pieces of discrimination legislation and in excess of 100 pieces of secondary legislation that set out rules and regulations. The new Bill is intended to consolidate those discrimination laws and address the inconsistencies and gaps that exist between them.

Advance equality

The Government has taken the opportunity to include a number of new measures in the Bill to promote equality and diversity.

Equality and pay transparency

The Bill aims to increase transparency and requires public sector employers to report on areas such as gender pay and ethnic minority employment. While this will not initially apply to the private sector, the Government may in future use existing legislation to force disclosure of such details by private sector employers if they do not do so voluntarily. Ultimately, if the measure proves successful in reducing discrimination in the public sector, it is highly likely that it will be extended to the private sector. In addition, in both the public and private sectors, the Bill outlaws secrecy clauses about discussing pay and it will be unlawful to stop employees discussing their pay.

Positive action

Arguably, the most contentious change imposed by the Bill is the extension of positive action so that employers can take under-representation into account when selecting between two equally-qualified candidates. However, in practice it is difficult to see this being invoked by many employers. In most circumstances, candidates will not have equal skills and experience and the selection process should identify who is best suited to the role. This is a voluntary provision and employers (particularly those in the private sector) may choose to steer clear of it in order to avoid complications. Most employers will not wish to be seen to be recruiting on any basis other than merit. The Government has stated that the Equality and Human Rights Commission ("EHRC") will publish clear, user-friendly guidance on these new measures.

Investigation

The Bill provides that the EHRC will launch a series of inquiries into inequality in the financial and professional services sectors. Employers in those sectors should prepare for this increased scrutiny by conducting their own reviews of their equality policy and pay structure in order to identify and address any unjustified discrepancies. In its response to the White Paper, the EHRC has requested increased powers of inquiry and investigation in order that it may take a proportionate and risk-based approach to enforcement.

Single equality duty

A new equality duty is to be imposed on public bodies, bringing together the existing three duties (regarding race, disability and gender) and extending the duty to gender reassignment, age, sexual orientation, and religion or belief. These public sector duties will continue to operate alongside the prohibitions on discrimination to ensure that the whole of the public sector is engaged in actively tackling discrimination.

The Government feels that the duties already in place have brought about a positive culture change in many public authorities, ensuring they have focussed on the way their decisions affect people whatever their race, disability or gender. It believes that the extended equality duty will ensure that they consider how their policies, programmes and services affect different disadvantaged groups. While this duty is imposed on the public sector, it will also impact on the private sector and, if you do business with a public body, either as a supplier or contractor, the duty will apply indirectly as it will be reflected in purchasing and supply contracts.

Age discrimination

The Bill extends the existing prohibition on unjustifiable age discrimination to make it unlawful to discriminate against someone because of their age when providing goods, facilities, and services, or carrying out public functions. This will be fully addressed under secondary legislation to the Bill, in order to give service providers sufficient opportunity to assess and investigate the issues that need to be addressed.

Strengthen protection

Discrimination laws have developed rapidly and on a piecemeal basis. As a result, inconsistencies and gaps have been inevitable and legislation has become complex and hard to understand. By bringing the legislation together, it is intended that those inconsistencies will be addressed and the laws strengthened at the same time.

The Bill provides for greater powers to be afforded to tribunals. They will be able to make wider recommendations in discrimination cases so that, in addition to providing a remedy to an individual who brings a claim, a tribunal can make recommendations to benefit the wider workforce and encourage better employment practices. For example, where an employer has been found to have discriminated against a female employee, a tribunal may order that employer to introduce an equal opportunities policy.

The Bill may also allow discrimination claims to be brought on combined multiple grounds, i.e. where a person has been discriminated against because of a combination of characteristics. However, the Government has acknowledged that this is a complex area and one that will require further exploration as to how it would work in practice and what the costs and benefits would be.

In addition, the Government will continue to support the development of trade union representatives.

Next steps

The Government intends to have the Bill ready for introduction into the next parliamentary session and will refine its proposals and engage in further consultation over the coming months. It intends to work together with other bodies, such as the EHRC and business representatives, to ensure that they progress the new legislation effectively.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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