Equality Bill brings Equality Challenges? 1/5/09

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If you predict something is about to happen often enough eventually you'll be right and so with the long awaited Equality Bill which was finally published this week. Said by the Government to have the dual purpose of harmonising discrimination law and strengthening the law to support progress on equality, the Bill is not for the faint-hearted, running to hundreds of pages including some 28 schedules. Here are some of the changes most likely to impact on your organisation. 

All Employers
Protected Characteristics
We will finally be saying good-bye to some of the  main pieces of discrimination legislation that have been with us for so many years as their terms are consolidated into the new Equality Bill. All the discrimination strands are to be brought together (as expected) with 9 specific "protected characteristics" namely gender, pregnancy and maternity, race, marriage and civil partnership, disability, age, sexual orientation, religion or belief and gender re-assignment.

Direct and Indirect Discrimination
The definition of direct discrimination has been expanded and will occur if someone has been treated less favourably "because of a protected characteristic." This would seem to address the problem that has arisen recently in the Coleman case where "discrimination by association" has had to be "written in” to the Disability Discrimination Act to give it effect as a result of the ECJ ruling in this case. The new wording in the Bill however, gets round this by leaving open who might have the protected characteristic.

The concept of indirect discrimination remains largely untouched with reference being to a "provision, criterion or practice" which puts those with a protected characteristic at a particular disadvantage. The difference is that indirect discrimination will also extend to the protected characteristic of “disability”. And, in addition, a new concept has been introduced to add to the prohibitions against disability discrimination in that  the Bill outlaws discrimination arising from a disability i.e. treatment arising because of someone’s disability thereby addressing (as the Government promised) the problem that had arisen as a result of the House of Lords decision in the Malcolm case which effectively rendered the former "disability related discrimination" null and void.

Harrassment
The harassment provisions have equally been broadened out so that any harassment "related to a protected characteristic" will cover anyone who may be subjected to harassment because of their association with someone from one of the protected groups except for harassment related to pregnancy or maternity and marriage or civil partnership is not included.

3rd party harassment (i.e. harassment of an employee by a client, contractor or visitor) (which to date has only applied to harassment on grounds of sex) will be extended to cover all the protected characteristics.

Recruitment
As trailed heavily in the press during last summer, the right to take "positive action" is to be extended to recruitment and promotion with the right being given to employers to prefer one of two otherwise equal candidates because of a "protected characteristic" (for example,  because one is a woman)  if the employer believes that those with the protected characteristic suffer a disadvantage at work (such as under-representation).

Pay
Again as highlighted in many of the press articles on the Bill, the Government's has reserved the right to bring in Regulations to ask private sector employers with 250+ employees to publish information on what they pay their male and female employees to help indentify any gender pay gap. The indication is that there will be a lead in time of some years with the provisions not being implemented until 2013, the Government's hope being that in the interim larger employers will start producing this information voluntarily.

And for those with a particular interest in equal pay issues, the Bill does not introduce the right for a woman to rely on a hypothetical comparator but introduces a new specific right for a woman who has no comparator (which would otherwise frustrate her right to bring an equal pay claim)  to complain about direct sex discrimination if she can bring evidence to show she is being treated less favourably than a man would be treated with regard to her pay.

Employment Tribunals
ETs are to be given the right to make recommendations as to  how employers who have lost cases can remedy matters in a way that  may benefit the whole workforce not just the employee who has brought the case.

Service Providers and Age Discrimination
As widely anticipated, the law is to be extended so that age discrimination in the provision of services is to be outlawed.

Public Sector Duties
A new single equality duty is to be brought in. Even  those who have opted to take this route already will need to ensure that existing schemes comply with the revised wording in the Bill. Consideration will need to be given to how those public authorities affected can "eliminate conduct prohibited by the Bill" and "foster good relations between those with a protected characteristic and those who do not” in the wider community. Fostering good relations includes the need to tackle prejudice and to promote better understanding.

A new public sector duty is also to be brought in to address "socio-economic" inequalities i.e. certain organisations in the public sector will have a duty to consider how they can reduce inequalities in areas of greatest economic and social disadvantage. However  this is only to apply to government departments and local authorities as well as NHS bodies but  does not impose a duty on an authority in relation to any devolved Scottish functions.

There is also scope for a "specific duty" to be introduced to cover public sector procurement seen as a method of driving forward equality in the private sector.

Timing
What are the likely time scales for introduction of these measures? The suggestion is that there will be a period of consultation over the Summer and the intention that the Bill will receive Royal Assent in the Spring of 2010 (presumably just in advance of the General Election) with an implementation date for many of the provisions of October 2010. This seems like quite a short lead in time but the provisions which are likely to have most impact such as pay audits and the extension of the public sector duties are expected to be given significantly more time for compliance.

So what should I do in the meantime?
For those with strong views on any of the provisions there will be the chance for you to contribute to the consultation process and we will let you have details of how you can do this in due course.

On a more practical level, larger employers in the private sector should start considering how comfortable they would be disclosing information concerning the average pay of their male and females employees (should these provisions come into force) with a view to identifying any problem areas voluntarily. You should also be reviewing existing harassment policies to ensure they cover 3rd party harassment in relation to all of the protected characteristics and making sure you have a clear policy statement against any sort of discrimination on all the protected grounds including discrimination by association.

For those in the public sector who have not already done so, you will need to consider  how you might deal with the extension of the public sector duties which seems inevitable.

The Future
We will be running a seminar dedicated to the changes the new Bill will bring in and will let you know when that will be scheduled for. Meantime, we will be monitoring the progress of the Bill on its journey through Parliament and will keep you updated of any developments.

Further information
For further information on this or any planning issue, please contact Jill Bell in the Discrimination Unit.  
 


This bulletin is for general information only and does not constitute legal, investment or other professional advice. Please contact us should you require advice on any particular legal issue. Anderson Strathern LLP accepts no responsibility for any loss that may arise if reliance is placed on any information or opinions expressed in this bulletin.