Equal measures

The Equality Bill has now been published. In this article David Rankin of BusinessHR summarises the main features of the Bill and explains how they might impact on your business

The long-awaited Equality Bill has now been published. This aims to combine all of the existing legislation on discrimination into a single statute and contains 205 clauses plus 28 Schedules. The main features to note are summarised below. Note that as the Bill goes through parliamentary process some parts may go, others could be altered and new provisions could be introduced. The majority of the provisions are however expected to come into force in October 2010.

Positive action in recruitment/promotion decisions

The Bill allows employers to positively discriminate during recruitment in favour of disadvantaged groups when choosing between candidates who are otherwise equally qualified. Such decisions must be made on a case-by-case basis, as opposed to having a blanket policy of positive action.

This is not going to be straightforward, as employers who use such positive action risk discrimination claims from unsuccessful candidates who may challenge whether candidates are truly equal, as well as the assessments of under-representation and disadvantage. In addition there are concerns about the extent to which positive action is permitted under EU law.

Equal pay and pay transparency

The Bill maintains the current regime around sex discrimination in relation to pay but attempts to clarify the law in some respects.

Any clauses in employment contracts that seek to prevent workers discussing their pay packages will be outlawed.

A clause allows the Secretary of State to order private sector employers with at least 250 employees to publish information about differences in pay between their male and female employees. The government claims it has no plans to do this straight away but instead will monitor whether voluntary disclosure is sufficient; if it feels that insufficient progress has been made then it may make publication compulsory.

Discrimination by association or perception

This reflects recent European case law by outlawing direct discrimination or harassment if this arises from the victim's association with someone who has a disability, or is of a particular age, sex, sexual orientation, racial origin or religion or belief. Discrimination on the grounds that someone is 'perceived' to possess a protected characteristic will also be unlawful.

Disability discrimination

An impairment currently usually only qualifies as a disability if it affects one or more of the following:

mobility
manual dexterity
physical co-ordination
continence
ability to lift, carry or otherwise move everyday objects
speech, hearing or eyesight
memory or ability to concentrate, learn or understand
perception of the risk of physical danger.

The Bill abandons this list and relies instead on the general requirement that an impairment is long term (12 months or more) and has a substantial effect on a person's ability to carry out normal day-to-day activities. Further regulation or guidance is, however, likely.

Age discrimination by service providers

Service providers will, for the first time, be prohibited from discriminating against customers, clients and other service users on grounds of age, although there may be some exemptions, eg holidays aimed at certain age groups.

Public sector equality duties

Public bodies currently have a duty to have due regard to the need to eliminate unlawful discrimination, victimisation and harassment and to promote equality of opportunity in the areas of sex, disability and race. These duties will be combined and extended to cover religion and belief, sexual orientation and age and all of these will be incorporated into a single, streamlined duty. The Bill also contains a new duty for some key public bodies to pay due regard to socio-economic disadvantage in making strategic decisions.

Diversity information when tendering

The Government Equalities Office wants public authorities to require businesses bidding for public sector contracts to evidence their 'diversity credentials'. The Bill gives the Government the power to make regulations that will force public bodies to consider equality issues in certain cases.

Recommendations by tribunals

Tribunals will have greater powers to make recommendations in cases where unlawful discrimination has been proved. At the moment they can recommend that an employer takes steps that will reduce the effect of discrimination on the claimant. This will be extended to allow them to make wide-ranging recommendations applying across the workplace (although not in equal pay cases), such as introducing an equal opportunities policy, re-training staff or publicising selection criteria. The Government aims to make tribunal judgements available and searchable on-line at some stage in the future so that such recommendations will be made public.

To view the Bill, visit: http://services.parliament.uk/bills/2008-09/equality.html

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