Equality Bill
The much heralded Equality Bill was published on the 27th April 2009 and we urge you to find time to read it well ahead of it becoming law sometime next year. The Bill is long with 205 clauses and 28 schedules so we have yet to get our collective heads around all the details – this is simply an overview of the highlights.
HR professionals will welcome the fact that the Bill will repeal most current equality legislation, except for the Equal Pay Act 1970, the Rehabilitation of Offenders Act 1974, the Part-Time Workers (prevention of less favourable treatment) Regulations 2000, the Fixed Term Workers (prevention of less favourable treatment) Regulations 2002 and the Gender Recognition Act 2004. Having six differently worded pieces of legislation has been an unnecessary complexity for employers and employees alike.
The concept of this Bill is to make all equality legislation the same, to iron out the anomalies and to strengthen the law in some areas. Much of the case law we all know and love has been incorporated or, where it came about due to the ‘law of unintended consequences’ there are changes which effectively repeal the case law. We note that Malcolm –v- London Borough of Lewisham will no longer hold sway.
The Bill extends equality legislation to cover everyone, so there are no exemptions that we can see for Partners etc.
The Bill begins by setting out “protected characteristics” which are essentially all those things currently covered by the multitude of legislation; race, colour, gender, sexual orientation, religion, belief, age, transgender, disability and so on. It then applies direct and indirect discrimination, harassment and victimisation to those protected characteristics generically, although there are some exceptions.
The words “on the grounds of” are no longer used and “because of” takes their place. So, for example, not short listing someone because they have a foreign sounding name would explicitly be unlawful whether the perception of the individual’s race, colour or ethnicity is correct or not.
The Bill extends across all “protected characteristics” the concept of “by association”. Insofar as disability is concerned, the ECJ has already ruled in Coleman –v- Attridge Law that the Disability Discrimination Act covers someone who is treated less favourably because of their association with disability. In that particular case, Sharon Coleman claimed that her employer, Attridge Law, refused to allow her to return to the same job after maternity leave accusing her of being “lazy” when she needed to take time off to care for her child who was disabled. Until this case, the Disability Discrimination Act was considered to only cover an individual’s disability.
So, for example, Tom is persistently late for work because the transport that collects his disabled wife to take her to the day care centre is regularly delayed.
This situation will now be covered by equality legislation and a reasonable adjustment should be made. To dismiss for poor timekeeping would almost certainly be disability discrimination.
All strands of equality are extended to cover goods and services and this will provide some interesting challenges in terms of age, perhaps in particular for insurance companies who will have to provide objective justification for charging the young and the old higher premiums. Bus passes are exempt!
The Bill has another go at defining ‘religion or belief’ and we think that it is now more successful at clarifying the parameters, although there will doubtless be challenges. You will recall that the original 2003 Regulations said “religion or similar philosophical belief” and there was much debate as to whether atheism was covered. The Regulations were then amended by the Equality Act 2006 and the word “similar” was removed, opening the door for the Regulations to cover vegetarianism and communism. The Equality Bill states that there must be a “clear structure and belief system” and we think the word “structure” will be helpful. The Bill also specifically covers lack of belief ensuring both atheism and humanism are covered.
The public duties (race, gender and disability) currently imposed on public bodies such as Councils and the NHS are extended to cover all ‘protected characteristics’ and further extended to cover a new socio-economic strand. This will, of course, find its way into invitations to tender for work with public bodies and its impact will be felt by supplier organisations such as us at Cullen Scholefield.
Interestingly, breast feeding is specifically covered in the Bill and it will be unlawful if, for example, a cafe owner asks a woman to leave his cafe because she is breast feeding her baby.
There is some clarification around disability which will be welcomed. In particular, there is protection for employers and service providers in that “did not know and could not be expected to know” will be a defence; in the fullness of time the Courts will doubtless tell us what we can be expected to know! The Bill also provides for a ‘Minister of the Crown’ to provide guidance on what is “normal day-to-day activity” and what constitutes a reasonable adjustment to underpin the legislation for the protected characteristic of disability. This is a double edged sword in that guidance will be helpful but it does mean that HR professionals will need to keep a weather eye on changes to that guidance, assuming the Employment Tribunals use it as a basis for their deliberations in disability discrimination cases.
As part of the drive to close the gender pay gap, secrecy clauses in contracts will become unlawful and we believe the door is left open for compulsory equal pay audits. The Secretary of State will be able to compel organisations with more than 250 staff to publish information about disparities in pay between male and female staff. Assuming this is just a simple average of pay for male employees and pay for female employees, there will be few organisations that do not risk coming to the attention of the Equality and Human Rights Commission. It is interesting to note that the number of Employment Tribunal claims for Equal Pay has risen exponentially over recent years:
2005/06 - 17,268 |
2006/07 - 44,013 |
2007/08 - 62,706 |
It will be well into 2010 before this Bill becomes legislation and, of course, there will be amendments along the way as it passes through government committees. Once the final version receives Royal Assent, it may be phased in over an extended period although we anticipate the “by association” clause and the extensions to goods and services to be early arrivals.
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