The Equality Bill Q&A
09 September 2008
This article was first published in Personnel
Today on 8 July 2008
The Equality Bill promises the biggest shake up in
discrimination law since the 1970s. Its provisions will have
serious repercussions for employers, especially as regards positive
discrimination, openness on pay and the extension of age
discrimination to the provision of goods, facilities and
services. What should employers be most concerned about?
Does the Bill permit positive
discrimination?
As the law currently stands, an employer can take
limited positive action to address under-representation of a
particular group (for example, women) in its workforce.
This can take the form of targeted advertising or training
but any subsequent selection must be carried out on merit
alone. The Bill proposes that where two candidates for a job
are equally qualified, under-representation could be used to decide
between them. This proposal would therefore extend
permissible positive action into what is currently unlawful
positive discrimination.
Does the Bill therefore allow
discrimination against white men?
In most situations it will be groups other than
white men which are under-represented in a workforce. In
those situations, some white men will potentially lose out if
employers adopt positive discrimination. There may however, be
situations where white men are under-represented in a
workforce. In those situations under-representation would
become a permissible tie-breaker, allowing an employer to select
white men on the basis of their race or gender.
Significantly, this proposal shifts the emphasis
of discrimination law away from the right of the individual to be
treated on merit alone, to one where being a member of a particular
group (defined for example, by gender or race) can determine a
person’s employment opportunities. This is confusing because
the Ministerial Foreword to the white paper begins “Everyone has
the right to be treated fairly …” The proposal actually means
that someone who, through no fault of their own, happens to be in
an over-represented group will potentially be treated less
favourably simply by membership of that group.
Is positive discrimination going to
be mandatory?
The aim of the Bill is to give employers greater
freedom to fast-track or select recruits from under-represented
groups. Use of positive discrimination will not be
mandatory. However, the apparent determination of the
Government to limit the award of public contracts to providers who
can demonstrate diverse workforces adds significant commercial
pressure to employers operating in that market to recruit more
people from under-represented groups.
Are employers going to have to be
more transparent on equality issues?
There are a range of measures in the white paper
aimed at increasing transparency. These include: banning
confidentiality provisions regarding pay; an equality “kite-mark”
for businesses which demonstrate their equality credentials; and,
in the public sector, revised equality reporting requirements.
What’s happening with age
discrimination?
Age discrimination is already unlawful in
employment. The Equality Bill will enable the Government to
extend this to the provision of goods, facilities and
services. The detail will be dealt with in secondary
legislation after further consultation. This change will not
affect different treatment on the grounds of age where the
treatment is justifiable – the examples given in the white paper
include free bus passes for the over-60s and group holidays for
particular age groups.
Does the Bill deal with public equality
duties?
40,000 public sector employers have duties to
promote equality in respect of race, disability and gender rather
than merely duties to avoid discrimination. The white paper
indicates that a new streamlined Equality Duty will replace the
existing duties and will be extended to cover gender reassignment,
age, sexual orientation and religion or belief.
How will the Bill be
enforced?
The Government believes that strong and effective
enforcement is necessary to make a reality of legal rights.
The Bill is likely to include a number of new enforcement powers
including: allowing Tribunals to make wider recommendations to
employers in discrimination cases and the possible introduction of
representative actions, allowing unions to bring a single claim on
behalf of a group of employees.
What happens next?
A detailed paper on the content of the Bill and
the Government’s response to last year’s consultation will be
published shortly. Over the coming months there will be
further consultation with various bodies on different aspects of
the proposals before the Bill is introduced in the next
parliamentary session.
For further information, please contact Richard Kenyon.