The long awaited Equality Bill has been published. Its purpose is to consolidate the various equal pay and discrimination statutes and regulations, with a view to achieving the government's stated aims to "harmonise discrimination law" and "strengthen the law to support progress on equality".
Amongst other things, the Bill:
- Defines direct discrimination as less favourable treatment "because of a protected characteristic" (namely: age, disability, sex, race, religion or belief, sexual orientation, gender reassignment, marriage and civil partnership, pregnancy and maternity). This more general definition will also cover discrimination by association;
- Adopts a standard definition of indirect discrimination, that is, when a provision, criterion or practice (PCP), which is applied to all, puts those having a particular protected characteristic at a particular disadvantage, and that PCP is not a proportionate means of achieving a legitimate aim. For the first time, this will also apply to disability discrimination;
- Widens protection in relation to harassment so that it catches conduct "related to" a protected characteristic. In addition, whilst at present liability for 3rd party harassment only exists in relation to sex-based harassment, this is to be extended to all protected characteristics;
- In response to the House of Lords decision in Malcolm v London Borough of Lewisham which made it harder for a disabled person to successfully claim disability-related discrimination, introduces provisions designed to re-strengthen protections for disabled persons. To this end, the Bill provides that an employer will discriminate against a disabled person if they treat that person in a particular way and because of that person's disability the treatment amounts to a detriment, unless the employer can justify that treatment as a proportionate means of achieving a legitimate aim. The employer will, however, have a defence if it can show that he did not know, or could not reasonably be expected to know, that the person had a disability. The explanatory notes to the Bill state that the aim here is to make it unlawful "to treat a disabled person in a particular way which, because of his or her disability, amounts to treating him or her badly". This protection will be in addition to the protections for direct and indirect discrimination, provided for in the Bill and the duty to make reasonable adjustments is also retained;
- Extends the scope of positive action to allow employers to appoint a person from an under-represented group in preference to another, provided the candidates are equally suitable. Positive discrimination (i.e. employing someone because of a particular characteristic, regardless of merit), remains unlawful;
- Outlaws pay secrecy clauses so that employers will no longer be able to prevent staff discussing salaries with their colleagues. In addition, any such discussion will be designated as a protected act for the purpose of victimisation;
- Introduces a power to require employers with at least 250 employees (150 for public sector employers), to publish information on differences in pay of male and female employees. Note, however, that the government has committed not to use this power before 2013;
- Creates a single public sector equality duty for public authorities which will be extended to cover age, religion or belief and sexual orientation (in addition to the current duties concerning sex, race and disability).
The government hopes the Bill will become law in 2010, although there is to be further consultation this year and the Bill is therefore subject to change. The full text of the Bill can be viewed here: http://services.parliament.uk/bills/2008-09/equality.html
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The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.
