Kirstie Redford sounds out leading employment lawyers to find out what they think of the government’s Green Paper on equality.
The publication of the government’s proposals for a Single Equality Bill has made discrimination legislation front-page news this month.
Plans to scrap archaic rules that restricted access for female members of private clubs may have dominated the national news, but behind these headlines, the Discrimination Law Review includes a number of proposals that could affect employment legislation.
The main aim of the Green Paper is to make discrimination law, which is currently contained in no less than nine major pieces of legislation, easier to interpret.
According to Alan Chalmers, partner at law firm DLA Piper, a major part of this process is ironing out all of the current anomalies to create a standard set of definitions and tests in discrimination law.
“For example, the paper proposes to harmonise the standard definition for indirect discrimination, adopting a common test for the defence of objective justification in indirect discrimination cases,” he says.
Despite its good intentions, Chalmers says that it’s unlikely that this will create a panacea for employers in understanding their rights and obligations, because the proposals fail to improve guidance about what can be considered ‘proportionate’.
“Indirect discrimination cases apply legally complex principles, are fact-sensitive and may be won or lost on whether a tribunal considers a particular course of conduct by an employer was ‘proportionate’. There is no proposal to provide greater guidance about what may or not be proportionate, so employers are still likely to be uncertain of whether a particular course of action is lawful,” he says.
There are also concerns that the paper’s proposals could potentially lead to more disability claims for employers. Proposals to change the definition of disability discrimination to remove the list of ‘capacities’ – such as mobility, speech, hearing and eyesight – could, in theory, result in it being easier for individuals suffering from mental impairments, who have previously found it difficult to demonstrate that their impairment affects one of the listed capacities, to bring claims.
Also, while at present employers have a defence to a disability discrimination claim if their actions are ‘justified’, the paper proposes to change the legal test for what will amount to justification.
“The test will mirror that used to justify indirect discrimination cases in other discrimination laws. This is likely to mean it is harder for employers to justify certain courses of action in respect of disabled employees and may well bring a higher risk of claims,” says Chalmers.
Tess Gill, barrister specialising in employment law at Old Square Chambers, says that on her first reading of the paper, she’s disappointed to see that equal pay issues have taken a back seat. “These proposals have less impact than many would have hoped. It’s failed to tackle equal pay, which is in desperate need of radical simplification and currently a huge issue for local authorities and the NHS,” she says.
Noticable omissions include making equal pay audits compulsory and allowing hypothetical comparators in equal pay claims.
Jenny Watson, chair of the Equal Opportunities Commission, says that the paper has missed a real opportunity to tackle the pay gap, but hopes that the consultation will prompt further debate. “Suggestions need to focus on preventing problems from arising in the first place, rather than tackling them through the tribunal system when they do,” she says.
Another aspect of the paper that has caught the attention of employment lawyers is the focus on public procurement. The paper stresses that in carrying out procurement, public authorities must consider the need to promote equality.
“What is likely to emerge is practical guidance for the public sector on how to factor equality into the procurement process, meaning that companies with a strong equality and diversity record will have an immediate advantage when bidding for public authority contracts,” says Chalmers.
However, the paper takes a much lighter approach for the private sector and rejects recommending any general positive duty to promote equality in the sector.
“This approach is not proactive enough,” says Gill. “There was a real opportunity to get both private and public sectors to review their equality practices and reduce the need for litigation, but the proposals have stopped short.”
Despite these shortcomings, the paper has been broadly welcomed by employment lawyers, who agree that any move to simplify current discrimination legislation and promote good practice in equality is positive. But with the proposals still up for consultation, only time will tell just how far-reaching the resulting legislation could turn out to be.
The consultation period for the Discrimination Law Review ends on 4 September 2007.
At a glance – first reactions
“For employment law, it’s more a tidying up exercise than a radical overhaul, but the proposals will hopefully make legislation an easier tool to use. It should get rid of the confusion around different definitions – there is no real logic to these anomalies, after all.”
Alexandra Davidson, employment law partner at Berwin Leighton Paisner
“The aim of the consultation is to look at the numerous pieces of discrimination legislation that have built up over the years with a view to making it clearer and more coherent. Getting rid of subtle differences between wordings in the different acts is fantastic, but we also need to ensure that we don’t erode existing levels of protection.”
Judith Watson, head of employment at Cobbetts
“The changes are mainly going to be to housekeeping rather than to broad equality principles. To that extent it will be business as usual for employers and, for lawyers, rather less double checking the legislation for head-scratching inconsistencies.”
Richard Kenyon, employment partner at Field Fisher Waterhouse“We particularly welcome the government’s decision not to undertake a complete overhaul of discrimination regulation. This would have created an industry for lawyers, and distracted employers from the real task of raising equality and diversity in ways that benefit them and their employees.”
Susan Anderson, director of HR policy at the Confederation of British Industry“The government’s commitment to harmonising and simplifying the law is very welcome, but one cannot underestimate the difficulty of the task. It will need thorough consultation and very careful drafting.”
Rachel Dineley, employment law partner at Beachcroft
Up for debate: some key points of the consultation
- Whether the requirement for a comparator in direct discrimination cases should be retined
- Whether a genuine occupational requirement test should be introduced for all strands of discrimination except disability
- Harmonising the definition of ‘indirect discrimination’
- Whether the concept of ‘reasonable adjustments’ should be extended beyond disability discrimination
- Whether to streamline equal pay law and sex discrimination law within the Single Equality Act
- Creating a single definition of disability discrimination.
Source: Field Fisher Waterhouse