Debra Gers outlines why employers must ensure they are aware of the implications of the Equality Bill, which was published in April, including issues such as gender pay monitoring and positive action.
The Equality Bill 2009 was published in April and attracted media interest and, it is fair to say, some controversy too.
The purposes of the Equality Bill are to simplify current discrimination law and to introduce new measures to tackle discrimination and promote equality. There is a need to simplify the complex, wide ranging discrimination legislation that is currently in place. It includes nine major pieces of discrimination legislation, around 100 statutory instruments and more than 2,500 pages of guidance and Statutory Codes of Practice. The Equality Bill will replace this legislation with a single Act, which will make it easier for individuals and employers to understand their rights and obligations.
As for tackling discrimination and inequality, this is considered necessary despite the extensive discrimination legislation currently in force. There continues to be a gender pay gap with women still earning on average 22.6% less per hour than men. The unemployment rates of disabled people are still unacceptably high, with disabled people more than twice as likely to be out of work as non-disabled people. If you are from an ethnic minority the chance of finding work is still 13% less than a white person. Social inequalities mean that by the age of six, less academically-able children of better-off parents overtake more able but poorer children at school.
The Equality Bill will tackle discrimination in a number of key areas by:
- Introducing a new public sector duty to consider reducing socio-economic inequalities
- Putting a new equality duty on public bodies
- Using public procurement to improve equality
- Banning age discrimination outside the workplace
- Introducing gender pay and equality reports
- Extending the scope to use positive action
- Strengthening the powers of employment tribunals
- Protecting carers from discrimination
- Offering new protection for breastfeeding mothers
- Banning discrimination in private clubs
- Strengthening protection from discrimination for disabled people.
The second reading of the Equality Bill took place in the House of Commons on 12 May and it is clear that there is some opposition to a number of the proposals. 139 MPs voted against the Equality Bill, which is likely to receive Royal Assent in spring 2010 with the majority of it coming into force in autumn 2010. Certain parts, such as the socio- economic duty on public bodies and public sector equality duty, are likely to come into force in 2011.
Amendments to the Equality Bill are likely in the coming months but it is important that employers and HR managers are aware of the following key issues:
Gender pay and equality reports
This provision attracted criticism. The government considers that pay discrimination cannot be tackled if it is hidden. The key issue for employers, therefore, is transparency. In relation to the private sector, the Equality Bill will contain a power requiring reporting on the gender pay gap by employers with 250 or more employees. This power will not be used before 2013 however. In the meantime, private sector employers with 250 or more employees will be expected, on a voluntary basis, to tackle gender pay inequality. In the summer, the Equalities and Human Rights Commission (EHRC) will develop a set of metrics for gender pay reports and will monitor progress in the private sector each year.
In addition, clauses in contracts of employment which prevent employees from discussing their pay with colleagues, will be unenforceable. This is to ensure transparency and dialogue in the workplace about pay. Contracts will therefore need to be reviewed and amended in due course. Taking disciplinary action against employees who discuss their pay will amount to victimisation.
Positive action
Positive action does not mean positive discrimination (which will continue to be unlawful). Rather, positive action means that employers will be permitted to offer a job to someone who is from an under-represented group if the employers have the choice between two or more candidates who are equally qualified. The selection of a less well-qualified candidate will not be allowed. Positive action does not mean preventing certain groups from certain jobs, nor will employers be required to select the individual from the under-represented group. The provision will allow employers to make their workforce more diverse.
Strengthening the powers of employment tribunals
The Equality Bill will allow employment tribunals to make recommendations in discrimination cases which benefit the whole workforce and not just the individual who brought the claim. This will go towards preventing similar discrimination occurring in the future. This will impact on organisations that have unsuccessfully defended a discrimination claim because the employment tribunal will make recommendations requiring the employer to take specified action within a specified time.
Protecting carers from discrimination
The Equality Bill will strengthen the rule protecting people from discrimination when they are associated with someone who is protected themselves. For example, an employer could not refuse to recruit or promote a member of staff simply because they care for an older relative. This could impact on many employers as there is evidence that an increasing number of people have caring responsibilities for their children, as well as one or both elderly parents.
Using public procurement to improve equality
The public sector has an estimated annual expenditure of around £175 billion and the Equality Bill provides that public bodies can use procurement to drive for equality. This is to encourage private sector suppliers to the public sector to promote equality in their own workforces.
At the time the Equality Bill was published, there was criticism that it would be inappropriate to impose more employment legislation on employers in a recession. According to the Institute of Directors, the Bill is "a further example of unnecessary regulation at a time when companies, particularly small and medium-size enterprises, are struggling to survive". The government’s response to such criticism is that there is no excuse for continuing fairness just because economic times are difficult.
Debra Gers is an associate at law firm Morgan Cole.
