In July 2008, we reported the Government’s proposals to consolidate the numerous pieces of discrimination legislation into one Act and to introduce further responsibilities in a bid to outlaw all forms of discrimination.
The long-awaited Equality Bill was published on April 2009. The effects of the Bill, if introduced, are potentially far reaching and include the harmonisation of definitions of direct and indirect discrimination, the extension of positive action in the workplace and the streamlining of public-sector equality duties. In this article we outline some of the Bill’s most significant provisions for the higher education sector.
The Bill contains provisions that will allow employees to take positive steps to improve equality and diversity. The most controversial of these is the right for employers to base recruitment and promotion decisions on protected grounds (for example, an individual’s sex or race) when faced with candidates who are equally qualified, to counter perceived disadvantage or underrepresentation. The Bill requires employers to take such decisions on a case-by-case basis, as opposed to having a blanket policy of positive action.
The Bill contains a clause aimed at outlawing contract terms that seek to prevent workers discussing their pay packages.
Public-sector equality duties
As expected, the Bill provides for existing public-sector duties covering race, disability and sex to be rolled into one and extended to cover age, religion or belief and sexual orientation. General duties to have due regard to the need to eliminate unlawful discrimination, victimisation and harassment, advance equality of opportunity and foster good relations between different groups will be supplemented by as-yet-unspecified specific duties.
Recommendations by tribunals
The Bill aims to widen employment tribunals’ powers to make recommendations in cases where unlawful discrimination has been proved. At present, tribunals can recommend that an employer take steps that will reduce the effect of discrimination on the claimant. If the Bill becomes law, this will be extended to enable tribunals to make wide-ranging recommendations applying across the workplace (although not in equal pay cases), such as introducing an equal opportunities policy, retraining staff or publicising selection criteria.
Despite objections from many quarters, the Bill applies the concept of indirect discrimination to disability cases. The concept of indirect discrimination is aimed at targeting unjustified practices that disproportionately place particular groups of people at a disadvantage and this step has been taken to address the perceived problems caused by the House of Lords’ decision in London Borough of Lewisham v Malcolm (which we reported in July 2008).
The test for establishing whether an individual has a disability has also been widened. At present, an impairment usually qualifies as a disability only if it affects one or more defined capacities – for example, mobility. The Bill abandons the list of capacities, relying instead on the general requirement that an impairment is long term (12 months or more) and has a substantial effect on a person’s ability to carry out normal day-to-day activities.
Discrimination by association or perception
The Bill makes it clear that direct discrimination and harassment will be unlawful if it arises from the victim’s association with someone who has a disability, or is of a particular age, sex, sexual orientation, racial origin or religion or belief. This provision addresses existing uncertainty around when discrimination by association is prohibited.
Discrimination on the grounds that someone is perceived to possess a protected characteristic will also be unlawful.
The Bill maintains the distinct regime for the law around sex discrimination in relation to pay and attempts are made to clarify the law in some respects.
Public procurement and age discrimination by service providers
The Government Equalities Office has previously made it clear that it wants public authorities to require businesses bidding for public sector procurement contracts to evidence their “diversity credentials” and the Bill gives the Government power to make regulations that will force public bodies to consider equality issues in certain cases.
In addition, if the Bill becomes law, service providers will, for the first time, be prohibited from discriminating against customers, clients and other service users on grounds of age.
The Bill will now start its journey through Parliament, involving a long process of debate and amendment in both Houses before it becomes law. Some of the Bill’s clauses might not survive, others could be altered and new provisions could be introduced. We will report further on any developments as this important piece of legislation progresses through Parliament.