There has been a lot of talk about what changes the Equality Act will bring to HR and recruitment professionals. However, there were a few items the coalition government held back on – and it is these more controversial elements that perhaps say more about the Act than what was enforced this time.

One of these was ‘positive action’, to tackle the make up of workforces more aggressively during the recruitment and promotion processes, which is still under consideration.

Audrey Williams, head of discrimination law at Eversheds, said: “Perhaps the most contentious aspect of the Act is a provision for ‘positive action’ that would allow employers to recruit or promote employees because of their sex, race etc if they are ‘as qualified as’ other candidates. The coalition has, so far, declined to implement this part of the Act, and refuses to be drawn on when, if ever, it will take effect. Other types of positive action will, however, be allowed where it is aimed at remedying perceived disadvantage or underrepresentation.”

Whether this will ever be enshrined in law is another matter but with Eversheds’ research revealing it is not a popular policy among employers, with only 7% saying they would use it, it seems like this is something to be relgated t the political cutting room floor.

The other big issue is that of pay transparency: the coalition has also held back from implementing concerns the publication of pay data. There were originally plans under Labour to require larger private sector employers to publish information about their gender pay gap.

The Act does contain a section that would give Ministers power to introduce new regulations to make reporting compulsory. However both sides of the coalition disagree with enforcing this, although the provision has remained in place. By declining to implement this provision the coalition appears to be sending out a message that it does not think forcing employers to reveal what they pay to men and women is the solution to the problem of the gender pay gap.

If Labour or the coalition thought employers would publish their pay details voluntarily they may have a shock in store, Eversheds’ survey found very few would publish pay gap details.

Audrey Williams added: “Labour ministers had hoped that employers would voluntarily reveal information about their gender pay gap, promising further regulations only if voluntary reporting did not take off. However Eversheds’ survey suggests this may have been something of a pipe-dream, with only 13% of employers saying they will publish the data voluntarily.”

However Rachel Dineley, employment partner and head of the Diversity and Discrimination Unit at law firm Beachcroft LLP, who provided us with a guide shortly after the bill was passed, believes we haven’t heard the end of positive action and the gender pay gap, saying: “These may yet see the light of day, albeit with substantial modifications.”

It is perhaps of little surprise that this large bill seems so fragmented after it’s washing up in the last few days of the Labour administration, and there will be more to come from this Act over the next few years.

What hasn’t been enforced (yet)

ACAS advises that the following parts of the bill will be introduced from next year:

• Procurement (from 2011): The intention is for public bodies to use public procurement to drive equality. However, the coalition government has no plans to introduce further regulation in this area on the basis that public bodies can be relied on to achieve this when pursuing their specific duties. In practice, the results of the consultation process may not be known until early 2011. 
• Single equality duty (from April 2011):  The Act creates a new single public sector equality duty which will continue to cover race, gender and disability but will be extended to cover age, sexual orientation, religion or belief, pregnancy and maternity and gender reassignment.  Public bodies will be required to consider needs, by reference to these characteristics, when designing and delivering public services. The scope of this duty, and further specific duties, to achieve transparency in the workplace and in the provision of services, is currently the subject of government consultation.

For more information from ACAS click here.