The Equality Bill – government proposals to ‘declutter’ and ‘strengthen’ discrimination law

July 3, 2008

The Government recently presented to Parliament its proposals for a new “Equality Bill”. The Bill intends to consolidate the numerous pieces of existing discrimination legislation into one Act and to introduce further responsibilities in a bid to outlaw all forms of discrimination.

In the report published by the Government Equalities Office (Framework for a Fairer Future – The Equality Bill), the Government explains why it believes it is necessary to “declutter” current discrimination legislation: “Our discrimination laws have helped us make progress on equality but, because they have developed over more than 40 years, they have become extremely complex. There are currently nine major pieces of discrimination legislation, around 100 statutory instruments setting out connected rules and regulations and more than 2,500 pages of guidance and statutory codes of practice. The Bill will declutter what has become a thicket of legislation and guidance.”

The report goes on to identify those areas where the law is to be strengthened. The proposals, which will be subject to public consultation, can be summarised as follows:

• The introduction of a new single equality duty for public authorities, replacing the three existing duties in relation to sex, race and disability. This new equality duty will also be extended to cover religion and belief, sexual orientation and age. The precise content of the duty is unknown as yet and further consultation is promised, although it is likely that it will include a duty to publish information about gender pay gaps, ethnic minority employment and employment of people with disabilities. The Government has stopped short of extending a similar obligation to the private sector.

• The outlawing of discrimination on the ground of age in the provision of goods and services. This is intended to extend protection against discrimination on the ground of age in the workplace to, for example, the delivery of health and social care and access to financial services.

• Increasing transparency in relation to equality issues. The rationale offered by the Government is that “to tackle inequality, we must be able to see it”. One aspect of this is an attempt to increase transparency of private-sector organisations through the public-sector procurement process. In this way, it seems that it is intended that the public sector will have a role to play in encouraging diversity in the private sector through the provision of public-sector contracts. According to the report, 30 per cent of British companies are contracted by the public sector, and the Government wishes to increase the pressure on businesses bidding for public-sector contracts by requiring them to be more transparent in relation to equality issues. Again, the details have not yet been decided upon and further consultation has been promised. However, it seems likely that information on pay gaps and the employment of ethnic minorities may have to be disclosed as part of any organisation’s bid to contract with public bodies.

A further notable element of this proposal is to outlaw clauses in employment contracts that prevent employees from discussing their pay. The Government believes that pay inequalities are less likely to be identified if employees are not able to discuss their pay openly with others.

• One of the most controversial parts of the proposed Bill is the right for employers to take positive action when selecting between two equally qualified candidates. This would permit employers to base their recruitment decisions on, for example, sex or ethnicity where there is underrepresentation in the workforce of that particular group and they are faced with two or more equally suitable candidates for an available role. If this proposal is introduced, it would represent a significant departure from existing laws that do not currently permit this type of “positive discrimination” in the employment context.

• Extending enforcement powers for employment tribunals in discrimination cases. This includes a proposal to allow tribunals to make recommendations in individual cases that apply not just to the claimant but to the whole of the employer’s workforce. This could have significant implications for employers and would inevitably raise the stakes in any potential discrimination proceedings.

The Government has indicated that it intends to introduce the Bill in the next parliamentary session. However, stakeholders, including employer groups, will have an important role to play over the coming months in shaping these ambitious proposals.

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