A fairer and more equal future

Wednesday, July 30, 2008

The new Equality Bill aims to considerably extend the range and scope of existing anti-discrimination legislation. Rachael Heenan looks at what has been proposed and what the changes will mean for public sector employers and their staff.

Following publication of the government's white paper, Framework for a Fairer Future – the Equality Bill, it is clear that the public sector is expected to play a leading role in implementing change, making equality a top priority and tackling "institutionalised policies and practices".

Britain currently has some of the strictest antidiscrimination laws in the world. However, the Equality Bill intends to "declutter what has become a thicket of legislation and guidance" and to introduce further responsibilities in a bid to outlaw all forms of discrimination.

There are currently three existing equality duties to promote equality and reduce discrimination for disability, gender and race in the public sector. These are to be replaced by a new single Equality Duty and will be extended to cover religion and belief, age, gender reassignment and sexual orientation.

Although the full-time gender pay gap has dropped to 12.6 per cent, the government forecasts that, without further action, the gender pay gap will not close entirely until 2085. The employment rates of the disabled and ethnic minorities have increased, but improvement is still needed.

The government believes that a single Equality Duty will help public authorities focus on outcomes, rather than process, and the paper notes that some public bodies have already implemented single equality schemes. However, the precise content of the duty is as yet unknown and the government is to consult on what will be required through secondary legislation.

The bill will outlaw unjustifiable age discrimination in the provision of goods and services.

However, some benefits, such as free travel entitlement, will be exempt, and differential provision of products and services for older people will not be unlawful where it is justified.

The government believes that "to tackle inequality, we must be able to see it" and will require public bodies to reveal what they are doing to close the gender pay gap and provide fair opportunities for disabled people and ethnic minorities.

The rationale is that transparency will make it possible to monitor and encourage progress within public authorities, and one of the most significant proposed changes is the requirement for public bodies to make public the gender pay gap.

Although employers will not be required to go through legal audits and no actual figures will be published, they will be required to disclose the percentage difference and this will inevitably increase the administrative burden on already stretched resources.

In addition, secrecy clauses – which prevent employees from discussing their pay with colleagues – are proposed to be outlawed.

There will also be an impact for private sector business. Thirty per cent of British companies are contracted by the public sector and the government wishes to use the public sector's hefty procurement power to drive transparency and to award more contracts to private companies with a good equality record.

Controversially, the bill will extend the positive action regime. When selecting between two equally qualified candidates employers will be able to consider under-representation of disadvantaged groups and appoint the under-represented person.

Employers will also be able to fast-track or select recruits from under-represented groups.

These measures will be applied on a voluntary basis and would represent a significant departure from existing laws that do not permit this type of positive discrimination in the employment field.

There is also a consideration to allow people to claim that they have been discriminated against for more than one reason, and it is possible that trade unions and other bodies representing workers will be allowed to take discrimination claims to court.

The government is also considering whether to allow tribunals to make general recommendations to employers in discrimination cases, which would impact on the workforce, not just the claimant.

There has been a massive increase in equal pay and age discrimination cases in recent years and this new legislation is unlikely to reduce the volume of litigation, at least in the short term. The extension of positive action may, in fact, result in an increase in discrimination litigation, and proving that candidates are equally qualified is likely to be difficult. As a result, many employers may decide not to use positive action in this way.

However, it is hoped that the Equality Bill will go some way to fixing the uncertainty in the law surrounding equal pay cases.

Consultation on the bill will continue throughout this year and it is likely to be published in 2009.

Rachael Heenan is a partner in the employment and pensions group at Beachcroft LLP