08 July 2008

The Equality Bill - some devilish details

Christina Morton
Professional support lawyer | UK

The Government’s announcement of some of the features of the Equality Bill has provoked wide-ranging comment in the media. Here are the top tips from the Withers LLP Employment Group:

*Pay and equality transparency * Perhaps the most significant proposal in practice. In public and private sectors alike, it will be unlawful to try to prevent employees discussing their pay. Confidential settlements could potentially be affected.

*Streamlining the law * In effect the principal aim of the Bill. The existing discrimination laws are all slightly different and the inconsistencies and gaps need to be addressed. In practice a difficult job and likely to give rise to litigation and a period of uncertainty whatever the Government’s intentions.

Equality investigations  The Equality and Human Rights Commission will target employers in specific sectors, including financial services, for investigation. Employers who have historically preferred to settle cases to avoid publicity over pay scales and bonus criteria may find themselves under pressure from the EHRC.

Age discrimination  Age discrimination in the provision of goods and services will become unlawful. This will diminish one area of difficulty for employers who currently have to reconcile their duty not to discriminate when providing benefits packages to their employees, with the freedom of financial services providers to design and price products (such as PHI and private medical insurance) in a potentially discriminatory way.

Positive action  Employers who wish to achieve a more representative workforce will be aided by a lifting of the ban on using under-representation in the workforce as a criterion for choosing between two equally qualified applicants. At present this amounts to unlawful positive discrimination. Choosing a less qualified applicant over a better qualified one because of under-representation will remain unlawful.

Enforcement  At present tribunals can make recommendations for the benefit of the employee who has successfully brought a discrimination complaint. This power will be widened to enable tribunals to recommend measures that benefit the whole workforce. These will remain enforceable even if the employee who complains leaves his or her job. This is another measure that could be used to enforce pay transparency and other equality practices, and will need to be factored into an employer’s decision to defend tribunal claims brought against it.

Single Equality Duty  Irrelevant if you are not a public sector employer? Wrong. If you do business with the public sector as supplier or contractor the duty will apply to you indirectly. Its terms will be reflected in public sector purchasing and supply contracts and the effects of introducing a single equality duty (covering age, sexual orientation, gender reassignment and religion or belief as well as the existing strands) will be felt far beyond the public sector.

Christina Morton Professional support lawyer | London

Category: Article