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The Equality Bill – will some be more equal than others?

Related courses - Preparing for the Equality Act 2010 and Essential Discrimination Law.

The Equality Bill is the major piece of employment legislation currently before Parliament. It comprises 200+ clauses, with 28 schedules, and is the most comprehensive reform of discrimination law yet undertaken. It is likely to become law in April 2010, and to come into effect later in the year.

In part, the Bill consolidates and harmonises existing discrimination law. In the process of doing so, however, changes are inevitable, since the process begs the question of which of two or more inconsistent strands of law should be adopted for the new harmonised version.

And anyway, there are other provisions which go well beyond harmonisation, and aim to reform the law.

The main features of the Equality Bill are:

• Discrimination is defined in terms of nine “protected characteristics” – age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

• In the definition of direct discrimination, “because” takes the place of “on grounds of”, e.g. was the conduct in question “because” the claimant was a woman?

• There is a new definition of indirect discrimination. “A provision, criterion or practice is discriminatory in relation to a protected characteristic of B’s if: (1) A applies or would apply it to persons with whom B does not share the characteristic; (2) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it; (3) it puts, or would put, B at that disadvantage, and (4) A cannot show it to be a proportionate means of achieving a legitimate aim.”

• There is a new definition of disability discrimination. It states that: “a person (A) discriminates against a disabled person (B) if – (1) A treats B in a particular way, (2) because of B’s disability, the treatment amounts to a detriment, and (3) A cannot show that the treatment is a proportionate means of achieving a legitimate aim”. This is intended to mitigate the effects of the House of Lords decision in the Malcolm case which in effect bars virtually any claim under the current law for disability-related discrimination.

• The right to bring a claim is extended to those who suffer discrimination because of “association” with those who have a “protected characteristic”. This broadens the principle in Coleman v Attridge Law  to other forms of discrimination.

• Discrimination on the basis of “perception” of a protected characteristic is made unlawful.

• The existing provisions on employer liability for third party sexual harassment (e.g. by customers) are extended to cover all the protected characteristics.

• There is provision for employers to take ‘positive action’ in the recruitment and promotion process, but this must not extend to ‘positive discrimination’. The position will be that, where there is a tie-break situation (“A is as qualified as B to be recruited or promoted”) the employer can decide in favour of the person who is a member of an under-represented group, without laying him/herself open to a claim of unlawful discrimination.

• To further promote equal pay, “secrecy clauses” which bar employees from disclosing their salaries so as to compare them will become unlawful. The government will have a power to compel private sector employers with 250 or more staff to publish information about gender pay differences (this will only be used if necessary, and not before 2013).  In other words, the government is relying on the voluntary co-operation of employers.

• Hypothetical comparators are to be permitted in equal pay claims. At present, they are allowed in discrimination claims, but not for equal pay.

• Employment Tribunals will be given wider powers to make recommendations in discrimination cases. At present, they can only make recommendations which relate to the claimant, but this will be extended to cover the whole workforce. An ET could therefore recommend re-training for members of staff, or the adoption of an Equal Opportunities policy (even if the claimant no longer works for that employer).

• Public sector employers will be fixed with a duty to promote equality in relation to all nine protected characteristics.

• There will be a new duty for public authorities, when making decisions of a strategic nature about how to exercise their functions, “to have due regard to the desirability of exercising them in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage”. The implementation of this duty is expected to be delayed until 2011.

What progress has the Equality Bill made?

It is well on its way through Parliament. There have been few significant changes en route but further amendment is still possible. The main amendment so far has been the insertion of a “dual discrimination” clause. This provision will enable claimants to bring claims which combine protected characteristics, e g a black woman who believed that she had been discriminated against on grounds of sex and race could bring a dual discrimination claim on that basis, rather than try to fit her experience into separate race and sex claims.

In addition, the test for work-related pregnancy and maternity discrimination has been amended. A woman complaining of such discrimination will have to show that she has been treated “unfavourably” rather than “less favourably”. This amendment flows logically from the principle that a woman complaining of pregnancy or maternity discrimination has no need to compare her treatment to that afforded to a comparator.

As mentioned  above, the Bill aims to deal with the problems created by the House of Lords decision in London Borough of Lewisham v Malcolm, which had the practical effect of shutting out most claims for disability related discrimination. Discussion in committee highlighted concerns that the proposed clause in the Bill would not remedy the position, and the Solicitor-General, Vera Baird, who is steering the Bill through the Commons, announced the intention of re-drafting the definition of “discrimination arising from disability” in time for the Report stage.

One major question mark.  If, as widely predicted, the Prime Minister will hang on as long as possible before calling a General Election – in May 2010, then there is every chance that the Bill will become an Act before a possible [many would say ‘probable’ !] change of government.  This being the case, then it is unlikely that a Conservative government would prioritise any significant repeal of the legislation.  But what if the Election is called before the Bill has completed its parliamentary journey?  Like all legislation in the making, the Equality Bill will collapse.  Would a David Cameron led government revive it?  Now there’s a question!

To fully understand the implications of the Equality Bill on your organisation, attend Preparing for the Equality Act 2010 to access authoritative, concise and practical expertise.