In this article...

• Equality Bill White Paper
• Public sector equality duty
• Age discrimination
• Increased transparency
• Extension of positive action
• Enforcing equal opportunities

In this month’s employment news update, Lara Feghali focuses on the long awaited details of the Equality Bill, and looks at the implications for employers.

Equality Bill White Paper

After a long silence, and some ‘teasers’ over the last few months, the Government has finally published its White Paper, Framework for a Fairer Future – The Equality Bill. The detail of the legislation will be available when the Bill itself is published later this summer but, in the meantime, we set out below the broad proposals and what they might mean for employers.

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Public sector equality duty

The existing public sector duty to promote equality is to be extended to cover gender reassignment, age, sexual orientation and religion. There will be further consultation with various organisations on how this will work in practice, and the detail is to be published in due course. This will be a case of ‘wait and see’.

Age discrimination

Age discrimination in the workplace has been outlawed since October 2006. Under the Equality Bill, the prohibition on discrimination on the grounds of age is to be extended to providers of goods, facilities and services.

Increased transparency

		Public bodies will be subject to an obligation to report on:    - gender pay;    - ethnic minority employment; and    - disability employment This is likely to significantly increase the administrative burden on public sector employers, and any negative information is likely to be seized on by claimants in discrimination claims.
		The Government will require public bodies to use their “purchasing power” to promote the equality duties. This will mean that public bodies will need to take into account a supplier’s equality record when considering tenders; and private sector suppliers will have to demonstrate their equality credentials when bidding for work.
		Generally, most employees are reluctant to discuss their salary or wages but, once the Equality Bill is in force, it will be unlawful for employers to require employees to keep their pay confidential. It seems unlikely that this will result in a significant change in employment practice in many sectors.
		This year will also see enquiries into the financial / professional services sector and the construction industry (the former has been identified as having a particularly large pay gaps between genders and the latter has a particularly low percentage of workers from ethnic minorities).
		There will be an “equality kite mark” that may be awarded to businesses which report their progress on equality. This is likely to be particularly important for private companies tendering for public sector work, once the extended provisions on public sector purchasing are in place.

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Extension of positive action

Press headlines which suggest that the Equality Bill forces employers to ‘positively discriminate’, are inaccurate. In fact, on recruitment, employers will be allowed to prefer individuals from disadvantaged groups, if candidates are otherwise equally qualified. This will be an option for employers; not an obligation, and should be exercised with caution. In practice, it may be very difficult for employers to defend the exercise of this discretion.

Enforcing equal opportunities

At present, employment tribunals are able to make recommendations following a successful discrimination claim, but these can only relate to the individual who has brought the claim. Employment tribunals’ powers will be extended so that they may make general recommendations to employers in discrimination cases. This could mean, for example, that an employment tribunal may require an employer to amend its flexible working policy, or put in place a programme of diversity training for managers. It is not clear, as yet, what penalties (if any) there may be for non-compliance with any general recommendations.

There is the possibility that bodies such as trade unions and the ECHR may be granted the power to take on representative actions on behalf of groups of employees. This may mean that employers are at greater risk of combined actions, particular in relation to decisions or policies that affect the whole workforce, such as pay. Combined with the proposals set out above, in relation to increased pay transparency, this provision could prove a powerful weapon for employees.

What next

		The Equality Bill will be published over the summer and will be introduced in the next parliamentary session.
		Further consultation will take place on how the above proposals will work in practice.
		A detailed paper on the content of the Equality Bill and the Government’s response to its consultation, ‘Discrimination Law Review: A Framework for Fairness’ will be published, although the only timescale that the Government has given for this is “shortly”.