The government has opened a call for evidence about reforms to equality law, which includes proposals on extending equal pay claims to cover ethnicity and disability and the introduction of combined discrimination.
Alongside the progress of the Employment Rights Bill through Parliament, the UK government is beginning to look at a package of employment law reforms related to equality. We had been expecting publication of a draft Equality (Race and Disability) Bill for consultation, but it seems that the government has decided to gather more evidence first. A consultation on ethnicity and disability pay gap reporting is currently taking place, and a call for evidence about wider reforms to equality law has just opened.
A major component of the call for evidence is about improving pay transparency, which we have written about separately . The other topics are equal pay, combined discrimination, harassment, the public sector equality duty, and the socio-economic duty. This article focuses on the first three of these topics.
Equal pay to cover race and disability?
The government has previously said that it intends to extend the right to make equal pay claims to black, Asian and minority ethnic workers and disabled workers. This would mean that equal pay claims on the basis of ethnicity or disability would be treated in the same way as claims based on sex. As we explore in more detail in this article, we suggest that this is not an effective way to tackle the issues due to the problems with existing equal pay law – including the complexity of the procedure for claims and the need for actual comparators.
The call for evidence does seem to recognise these problems to some extent. There is a stated aim of creating effective equal pay rights for ethnic minority and disabled people, but instead of just going ahead the government is giving "close consideration" to whether the existing equal pay scheme is the right model, whether it should be amended, or whether a different approach may be best. There is now a welcome opportunity to provide views on changes that would be needed to make expansion of the equal pay scheme effective, including questions on unintended consequences and procedural changes. It seems that this change to the law is no longer a certainty.
The document also asks for evidence on prevalence and patterns of pay discrimination on the basis of sex, race and disability, and as experienced by outsourced workers. The outsourcing questions come from a commitment to ensure that this is no longer used to avoid paying equal pay, by allowing pay comparisons between outsourced and in-house workers. The discussion of this issue recognises that there can be complex labour supply chains, and it may not always be obvious who should be liable for unequal pay (the consultation seeks views on who should be liable for claims from workers). In practical terms, this is potentially a major change – it would involve comparing people who are employed by entirely separate entities, in circumstances where the employers involved won't necessarily have any data on how individual workers in the other organisation are paid, and would likely have a significant impact on procurement processes for services involving labour supply.
More state enforcement
The call for evidence confirms plans to establish a new Equal Pay Regulatory and Enforcement Unit, continuing the trend of moving towards state enforcement in other areas through creation of the Fair Work Agency. There are a number of questions about the effectiveness of current methods of enforcement through the Equality and Human Rights Commission (EHRC) and individual equal pay claims. This evidence will inform plans for the new unit's functions and approach. It is suggested that there could be a wide range of functions, including taking part in litigation, other enforcement powers such as investigations and compliance notices, and facilitating dispute resolution. Although the EHRC currently has wide-ranging powers in this area, they are rarely used to enforce equal pay, no doubt in part due to resource constraints. The call for evidence states that the government is considering the best institutional home for the new unit (so this may not ultimately be the EHRC), but wherever that is, its effectiveness will be heavily dependent on proper funding, particularly if there is an expansion of equal pay rights for minority ethnic, disabled and outsourced employees.
Combined discrimination
The government had previously committed to introducing "combined" (or "dual") discrimination, allowing someone to claim that they have been discriminated against because of having two protected characteristics, such as because they are a Muslim woman. This was omitted from the Next Steps document that was published alongside the Employment Rights Bill, which suggested it may have been dropped. However, the call for evidence confirms that the government still intends to implement this by bringing into force a section of the Equality Act which prohibits direct discrimination because of a combination of two protected characteristics.
As we wrote about in our previous article, there are some benefits to allowing combined discrimination claims - although the Equality Act provision is limited as it only covers direct discrimination and two characteristics. The questions on this topic in the call to evidence also ask about other types of discrimination and a combination of protected characteristics. This suggests the government might consider extending the right to other claims such as indirect discrimination and harassment.
Harassment
The Employment Rights Bill will strengthen protection from harassment, by raising the preventative duty to "all" reasonable steps to prevent sexual harassment and introducing liability for third party harassment. This includes a power to make regulations specifying steps that employers must take to prevent sexual harassment, and specifying matters employers must have regard to. As "reasonable steps" are not currently defined and the EHRC guidance is relatively limited , regulations may be helpful in setting consistent minimum standards.
The call for evidence says that the government will only make such regulations if there is a clear evidence base supporting the efficacy of particular steps in preventing workplace sexual harassment, and that better evidence is needed. A series of questions asks for input on effective steps, including in relation to company culture, staff training, how policies are enforced, reporting systems and procedures, and recording and investigating complaints.
What next?
The call for evidence closes on 30 June 2025, and it will presumably take some time to consider the responses – especially in areas such as the extension of equal pay rights where the whole approach is up for debate. We expect a draft Equality (Race & Disability) Bill for consultation by Autumn this year at the earliest.
The call for evidence can be downloaded here.
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