Employment: Equality Bill 2009 – a wide-ranging reform of discrimination legislation
The Equality Bill 2009 is currently being debated in Parliament, with simultaneous public consultation on specific provisions including the proposed extension of age discrimination laws to the provision of services.
The Bill is designed to replace and simplify all existing anti-discrimination legislation in relation to the 9 “protected characteristics” of gender, marital/civil partnership status, sexuality, transgender, race, religion or belief, pregnancy or maternity, disability and age. However the Bill is not simply a restatement of existing laws. It contains a number of new measures which if implemented will have far-reacting consequences for all businesses. Key proposals are:
New public sector duties
The existing public sector equality duties in relation to race, gender and disability will be consolidated and extended to cover all 9 “protected characteristics”. The existing equality duties ( a mixture of action plans to promote equality and specific steps required of public authorities) have already had an influence on how private sector companies contract to provide services to the public sector. The Equality Bill aims to make public procurement a proactive tool to improve equality.
Extension of age discrimination to the service sector
Since 2006 age discrimination has been outlawed in employment. The Equality Bill will extend this to the provision of services. Insurers and other businesses who distinguish the type and price of service provided based on age will be required to objectively justify such differentiation.
Action to promote equal pay freedom and obligations to disclose pay data
The Equal Pay Act which requires men and women to be paid the same for doing the same or equivalent work came into law almost 40 years ago, yet the gender pay gap remains around 20%. The government will be using the power of the public sector as an employer and purchaser of services to try and address this issue and in addition proposes two measures that will impact private employers.
Freedom for employees to discuss their pay
First, clauses in a contract of employment that prohibit employees from discussing their pay with co-workers, which are common in the financial services sector in particular, will no longer be enforceable. If employees wish to compare notes on salary and bonuses, they will be free to do so.
Obligations on employers to disclose gender pay gap
Second, the government proposes that businesses with 250 or more employees be required to publish data on the gender pay gap in their organisation, although the earliest that this will be introduced is 2013, depending on how much progress has been made by then towards closing the gap.
Limited positive discrimination – if all things are equal
Although positive discrimination in favour of a protected characteristic will generally remain unlawful, the Equality Bill provides that where an employer has two candidates for a job who are equally capable of performing the role, it is permissible to prefer one candidate if they have a protected characteristic which is under-represented in the work force. In other words, if there is a male and a female candidate, both of whom are equally competent to perform the role, the employer may prefer the female if the majority of the workforce is male.
“Discrimination by association” becomes unlawful
It will be unlawful for an employer to treat an employee unfairly because the employee has connections to someone with a protected characteristic. This addresses a situation highlighted by a recent test case in which an employee who had to take time off work to care for her severely disabled child was subjected to harassment and less favourable treatment than co-workers who took time off for other reasons. However the legislation in not limited to carers; for example it will also be prohibited to treat a white employee unfairly because they are married to a black person.
Greater protection for disabled people
The Equality Bill aims to reverse a recent House of Lords judgment that makes it much harder to provide discrimination for a reason related to disability. Rather than requiring that the disabled person is compared to a non-disabled person in the same situation, the test will be whether or not the treatment of an individual amounts to a detriment because of a disability that they suffer. If it does, and the employer or service provider knew or ought reasonably to have known that the individual was disabled, they will be liable for indirect discrimination unless they can objectively justify the treatment and regardless of whether or not reasonable adjustments have been made.
One of the most controversial proposals is to introduce the possibility of claims for “intersectional multiple discrimination” based on a combination of any two of the “protected characteristics”, excluding pregnancy/maternity and marital/civil partnership status. The idea is that there are some instances of unfair treatment which are based on a combination of protected characteristics and which would not otherwise be protected under existing legislation. There is some doubt as to the actual number of cases which could not be dealt with by bringing claims under the existing single heads of discrimination and individuals bringing a claim of multiple discrimination will still be able to bring “single head” claims based on the same characteristics. For example, a person may claim that they have been unfairly treated because they are female AND over 50, and/or because they are female and/or because they are over 50. Employers are understandably concerned about the increased complexity and cost involved in this proposal.
At present the government intends to enact the Equality Bill in spring 2010.
We will keep you updated on developments as the legislation goes through Parliament.
A copy of the Bill can be found at the following link
Any person or organisation may submit written evidence to the Public Bill Committee considering the Equality Bill. Guidance on how to do so is available here
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