The Equality Bill – radical shift or minor change?

Published: 27th June 2008

The Government has (with some fanfare) published their document "framework for a fairer future" which outlines the changes which will be made to discrimination law, in particular in the forthcoming Equality Bill. The Minister for Women and Equality describes it as "a radical shift" in "fighting unfairness", but in practice employers may feel it is just a series of small changes, which may result in more claims and add to the scope for misunderstandings of the law (particularly in the light of the media coverage).

As there appears to be some misinformation around, we thought it would be helpful to confirm what we actually know will happen. Much of what has been announced remains vague, with the important detail to follow later.

A single Equality Bill

All existing discrimination law will be combined in a single Act. We are told this will "declutter what has become a thicket of legislation and guidance", be written in "plain English", and "make it easier for people to know their rights and obligations". We will need to see the text of the bill to see if this is achieved (if it is indeed possible). Whilst laudable aims, we are concerned any changes may have the opposite effect. In practice, the Bill will either simply consolidate the existing law in one place (so making little practical difference) or change the law when bringing it together (resulting in novel legal issues, arguments, and therefore new complexities). We await the detail. It will become law by summer 2009, but elements may not come into force until some time later.

Likely impact - probably small changes for employers but nothing significant. Potentially more claims arising from "new" law.

Positive Discrimination

Understandably what has hit the headlines is the proposed ability to favour women, BME Candidates etc, where there are two equal candidates for the same job. Whilst this may sound significant, it is important to remember that the UK is subject to European law and therefore genuine positive discrimination cannot be introduced. The Government's document itself actually talks about "positive action". The proposal is that in the event that there are two "equally qualified candidates" there will be a lawful ability to favour one or other candidate on the basis of their membership of an under represented group (it covers all discriminatory grounds not just race and sex as has been reported). However, in practice it must be questioned how often such "equal" candidates exist. Where one candidate is more suitable they must still be given the job. The ability to take positive steps to endeavour to recruit from unrepresented groups already exists in current discrimination law, but is often fraught with legal difficulty.

In practice, the hype about these changes probably far outweighs their likely impact. Our real concern is that this will produce quite a bit of litigation as it offers plenty of scope for confusion or misunderstanding.

Transparency and Equal Pay

There is a strong emphasis made on transparency of pay being a way of tackling gender pay inequality. It is stated that the Bill will outlaw pay secrecy clauses (although we are unaware of many of these in practice) and make it unlawful to stop employees discussing their pay. The way this is introduced legally will be critical to its importance, but protection for employees who tell other employees what they are earning would represent a significant issue for many employers and may lead many organisations to rethink their approach to pay.

The threatened requirement to have equal pay audits is not actually introduced for the private sector, despite what has been written in the media. There is a commitment to look into it further and there may be a kite mark scheme, but this remains a future possibility not a firm proposal.

A protection against dismissal for discussing pay could be the most significant of these changes, but the key will be in the detail.

Enforcement in Tribunals

Employment Tribunals will be given a broader power to recommend that an employer should take certain steps when discrimination is found, applicable to the wider workforce and not limited to the individual claimant. This will make the importance of defending discrimination claims greater (or settling them where the risks are high).

Unlikely to change an employer's practices, but makes a discrimination finding potentially more damaging.

Age Discrimination

The Equality Bill will extend age discrimination to cover the provision of goods and services. This is a significant change for many providers who will need to grapple with the difficulty of identifying when they are "justified" in treating different age groups differently, an issue with which those in HR will now be familiar. Health providers, financial services organisations and insurers are some of the organisations for whom this will be important. It is notable that a long lead in period is envisaged before this duty is imposed and it also appears that such rights will be limited to those aged 18 and over.

This will be of great importance to the providers affected.

Public Sector Duties and Private Contractors

Great emphasis is placed on equality within public bodies, and this will result in yet more obligations being imposed on public bodies to promote equality of opportunity, similar to those obligations first introduced for race in 2000 (also currently applying to disability and gender). A "streamlined" single equality duty will cover all the unlawful discrimination grounds including, notably, age and religion. There is a commitment to requiring even more transparency on issues such as gender pay. The intent to use public bodies' contracts with private sector organisations to effectively extend these obligations, may be a sting in the tail for private contractors, but the detail of these proposals will be key.

More work for those in the public sector and those who contract with the public sector

As you will appreciate, what much of this means in reality will not be understood until we see far greater detail, but if you would like to discuss the potential impact of any of these changes on your organisation, please speak to your usual contact in the Mace & Jones Employment and HR Team.