Equality bill 2009
You may have heard in the media that the Equality Bill, which was introduced in the House of Commons on Friday 24 April, has now been published. The purpose of the Bill is, mainly, to consolidate the various pieces of discrimination legislation and to impose equality duties on public authorities. Some of the more significant changes to the law include new approaches to disability-related and indirect disability discrimination, extended coverage of third-party harassment and a new law prohibiting pay secrecy clauses in employment contracts.
The Government states that the Bill has two main purposes - to harmonise discrimination law and to strengthen the law to support progress on equality. The Government states that the Bill is due to take effect in 2010. However, it should be noted that the provisions set out below are subject to change following debate. These are some of the main provisions in the Bill:
Direct discrimination
The Bill formalises the concept of discrimination by
reference to 'protected characteristics', these being age,
disability, gender reassignment, marriage and civil partnership,
pregnancy and maternity, race, religion or belief, sex and sexual
orientation. The definition of direct discrimination is less
favourable treatment 'because of a protected characteristic'. This
general definition allows direct discrimination to be interpreted
very widely as it makes no reference to the protected
characteristic of any particular person. So, discrimination against
one person because of that person's association with a disabled
person or with a person of a particular race, for example, should
be covered.
Indirect discrimination
The Bill adopts the standard definition of indirect
discrimination, being when a provision, criterion or practice
(PCP), which is applied to all, puts those having a particular
protected characteristic at a particular disadvantage, and that PCP
is not a proportionate means of achieving a legitimate aim. One key
difference between the Bill and current discrimination law is that,
for the first time, disability is included as a ground on which
indirect discrimination is unlawful.
Harassment
A similarly wide approach has been taken with regard
to harassment, which re-establishes the equality enactments' focus
on unwanted conduct having a particular purpose or effect, but
widens the definition so that it catches conduct 'related to' a
protected characteristic. Thus, as with the definition of
discrimination, there is no need for a particular person's
characteristic to be the reason for the unwanted conduct in order
to trigger liability. Protection from harassment has been further
extended so that the employer can be held liable for harassment by
a third party (such as a customer or contractor) if harassment has
occurred on at least two earlier occasions and the employer has
failed to take reasonably practicable steps to stop it. Such
liability previously existed only in relation to sex-based
harassment; the Bill extends it to all the protected
characteristics covered by the harassment provisions.
Equal pay
The Equal Pay Act 1970 has been reproduced with only a few
amendments. For example, the 'genuine material factor' defence to
an equal pay claim becomes a 'material factor' defence. The
requirement that an indirectly discriminatory material factor be
objectively justified is expressly spelled out. Furthermore, the
provision specifically states that the long-term objective of
reducing inequality between men's and women's terms of work is
always to be regarded as a legitimate aim, thereby implicitly
endorsing pay protection as an indirectly discriminatory factor
capable of being objectively justified.
Gender pay gap:
On top of the equal pay provisions, the Bill introduces other
measures designed to address pay inequality. 'Secrecy clauses' in
contracts of employment, which seek to prevent employees discussing
their pay with colleagues with a view to finding out if differences
exist that are related to a protected characteristic, will be
rendered unenforceable. Any action taken against an employee for
this reason, such as disciplinary action, will amount to
victimisation. There is also a new power to make Regulations
requiring private sector employers with at least 250 employees to
publish information about the differences in pay between their male
and female employees. According to the Explanatory Notes, the
Government's aim is to encourage large employers to publish details
of any gender pay gap within their organisation on a regular and
voluntary basis. For this reason, it has decided to give employers
time to implement any such measures and will not use this power
before April 2013.
Disability discrimination
The Bill includes the response to the House of Lords'
decision in Malcolm v London Borough of Lewisham, which had the
effect of lowering the level of protection from disability-related
discrimination afforded by the Disability Discrimination Act 1995.
Under the Bill, a person (A) discriminates against a disabled
person (B) if: he treats B in a particular way; because of B's
disability, that treatment amounts to a detriment; and A cannot
show the treatment to be justified as a proportionate means of
achieving a legitimate aim. A has a defence if he or she can show
that he or she did not know, or could not reasonably be expected to
know, that B had the disability. The Explanatory Notes state that
the aim here is to make it unlawful 'to treat a disabled person in
a particular way which, because of his or her disability, amounts
to treating him or her badly'. Note that this protection is in
addition to the protections for direct and indirect disability
discrimination.
Equality duties
The Bill builds on the existing equality duties for public
bodies to create a single equality duty. Public bodies will have to
have regard, in the exercise of their functions, to the need to
eliminate discrimination, harassment, victimisation and any other
conduct prohibited by the bill. They must also have regard to the
need to advance equality of opportunity and foster good relations
between those with a protected characteristic and the wider
community (except in relation to marriage and civil partnership).
In order to recognise the part class plays in determining success,
the bill will also impose a duty on certain public bodies to have
regard to socio-economic factors when deciding on their strategic
priorities.
Enforcement
Tribunals will have a new power to make recommendations in
respect of an employer's workforce as a whole - and not just in
relation to a particular claimant as at present - following a
finding of discrimination. The recommendation must state that
respondent must take a specified action to reduce the adverse
effects of any matter raised in the proceedings within a specified
time.
Obviously, this is only a summary and, as stated above, is subject to change which we will keep you posted upon. However, if you have any concerns about any of the proposed provisions or about discrimination or equality in general, please do not hesitate to contact one of the Employment Team.
For further details, please contact a member of our Employment team on 01384 342100.
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