Discrimination Law Review unlikely to bridge public/private divide on diversity

Despite decades of anti-discrimination law, inequality still exists for millions of workers. The statistics lay bare the extent of the problem: white men earn up to 25% more than black men in similar roles women working full-time suffer a 17% pay gap from their male counterparts and non-disabled workers receive about 10% more than their disabled colleagues.

Yet critics have argued the government’s latest effort to examine equality enforcement, the Discrimination Law Review, will do little to change private sector attitudes to tackling discrimination and that it weakens what public authorities must do to deliver equality.

Legal obligation

Under the proposals, businesses will not be legally obliged to carry out equal pay audits or to monitor and report on their equality practices. The public sector, too, will have no specific statutory requirement to consider equality in contracts with the private sector.

Instead, the review lists voluntary ideas to tackle discrimination, such as an optional ‘equality checklist’. But will things ever really change without introducing compulsory measures? If companies are not forced to review and improve their equality practices, will it ever be a priority for them to do so?

London mayor Ken Livingstone has criticised the review for “failing to set out proposals to tackle the reality of discrimination”. Speaking at an industry seminar last week, he said “much more powerful enforcement” was needed to address “entrenched and systematic” inequality in society.

“The Green Paper would weaken key levers for equality in the public sector, while doing nothing to tackle discrimination in the private sector. More meaningful, change-orientated laws and enforcement are needed if unequal pay is to be eradicated,” he said.

Livingstone also condemned the government for failing to impose a specific duty on public bodies to check private sector equality practices during procurement, which the review argued was already included in overall equality duties.

The Disability Rights Commission (DRC) agreed the review needed to be “much clearer” on public sector procurement.

Caroline Gooding, the DRC’s director of legislative change, told Personnel Today: “The public sector needs a clear push on procurement. Employers should check that their suppliers have robust equality measures in place. This should be a must – otherwise nothing will change.”

Bureaucracy block

Gooding was also surprised there was no compulsion for private firms to monitor different staff groups. And she rejected the government’s claims that this would be “bureaucratic and burdensome on employers”.

“There is a laissez-faire approach to monitoring at the moment. But for companies with more than 500 staff, it makes sense to look at ways in which your policies and procedures exclude people, and set yourself targets to identify where the problems are,” she said.

But employers engaged in the diversity debate have argued that more legislation is not the answer to achieving workplace equality.

Robert Ainger, head of business marketing at communications giant Orange, stressed that what drives businesses to act is increased competition and the need to “keep up” in the commercial world, rather than the “sledgehammer” of regulation. “Stimulation for change comes from our competitors the drivers are commercial. Keeping up with this is more effective than navigating your way through increased and complex legislation,” he said.

Lynne Duffill, director of HR at regional development agency Advantage West Midlands, agreed there were other forces driving equality in today’s workplace. “As more companies get sued for discrimination, pressure [to change equality practices] comes from that – there’s no upper limit on compensation for race or gender cases at tribunal,” she said.

Duffill added that while new laws would help tackle discrimination, “increased legislation places additional burden on all types of organisation”.

Public perspective

In contrast, the Public Sector People Managers Association, which represents the interests of senior public sector HR professionals, said it was disappointed there seemed to be one set of rules for the public sector, and another for the private sector.

President Phil Badley told Personnel Today that the duties of gender, race and disability imposed on the public sector should be extended to commercial businesses.

“With the increasing focus of partnership between public and private bodies, it disappoints me that the private sector has got off lightly [in the review], with no actual duties imposed,” he said. “The private sector doesn’t seem to have any responsibility for improving diversity.”

The equality duties had caused added work in the public sector, Badley said. “But over time, they have made a difference. Without regulation, companies are unlikely to pay any significant attention to [improving equality].”

With less than three months until the new Commission for Equality and Human Rights (CEHR) launches – combining the commissions for racial equality, disability rights and equal opportunities – Badley said he was keen to see how the CEHR would promote equality more effectively.

“The history of discrimination has developed around ‘specialisms’ such as race, gender and age. There is an obvious concern that bringing all interests together means they will not get equal attention. Time will tell how effective the new commission is,” he said.

Public sector equality duties

All public bodies are covered by duties to promote disability, race and gender equality. This involves:

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