20 July 2009

Employment news - summer: Equality Bill

Christina Morton
Professional support lawyer | UK

The Government published its Equality Bill on 27th April, confirming many of the announcements it had made previously. The Government's stated aim in introducing the Equality Bill is to address what it regards as persistent inequality and discrimination within and outside the workplace but it surprised the business world with a proposal that firms employing 250 or more people should be obliged to undertake equal pay audits. This is a measure it had previously denied that it would include in the Bill. 

We have summarised the key provisions of the Bill that relate to employment below and follow this summary with a closer look at the proposals on ‘multiple' discrimination claims (see page 2). 

Many of the proposed measures will operate outside the employment field, including the controversial proposed duty on public sector bodies to consider reducing socio-economic inequalities. We will consider the possible impact of these measures, which will affect public sector employers directly and some private sector employers indirectly through procurement, in a future issue of Employment News.

The principal employment measures include:

  • a power to require gender pay reports in organisations with more than 250 employees. This power will not be used before 2013 and then only if there has been insufficient progress on voluntary reporting. The format and content of the reports has yet to be clarified.
  • making pay secrecy clauses unenforceable in situations in which employees discuss their pay with a view to ascertaining whether or not there is any pay discrimination taking place. Action by an employer against such employees will be treated as victimisation.
  • extending the provisions on positive action to enable employers to take positive action at the point of recruitment (which is currently unlawful), by favouring a candidate from an under-represented group if faced with a choice between two equally suitable candidates. Employers may have difficulties establishing that candidates are ‘equally suitable' and may feel that comparing candidates is always to some extent a matter of comparing apples and pears.
  • strengthening the powers of employment tribunals in discrimination cases by enabling them to make recommendations that will benefit the entire workforce and not only the person bringing a discrimination claim. The value of this provision as currently drafted is diluted by the lack of any explicit sanction for not complying with a recommendation.
  • outlawing discrimination by association across all strands of discrimination law, (not only race, religion or belief or sexual orientation, which are already covered); 
  • strengthening protection from discrimination for disabled people by making it unlawful knowingly to subject a disabled person to unjustified  treatment that is detrimental to that person because of their disability. There will be no need for the disabled person to point to someone else who has been treated more favourably. The employer will need to show that the treatment is a proportionate means of achieving a legitimate aim to escape liability.

The Bill is likely to be amended as it progresses through Parliament and we will report on these changes in future editions of Employment News.

Christina Morton Professional support lawyer | London

Category: Article