Equality Bill 2009 - legal Q&A

The Equality Bill 2009, published last month, is the government’s as attempt to consolidate all the nation’s discrimination legislation and to give it one home.

Given that we are looking at 40-years’ worth of piecemeal legislation that is a significant undertaking. But, not content with that, the government hopes to push through a number of reforms.

Of these, the two most significant are extending the obligations of public sector organisations to promote equality of opportunity, and widening the ambit of the age discrimination legislation to cover goods and services.

Q What are the main implications for employers?

A The core obligations of private sector employers will not change significantly, because most of the Bill’s considerable bulk is taken up with re-stating the law in a more logical and accessible form. Public sector employers are likely to be considerably affected by extending the scope of the public sector equality duties to cover three additional discrimination strands: religion, sexual orientation and age.

The exact details of these duties are still not known, but they are likely to be modelled on the obligations that already apply in relation to race, disability and sex.

The increased prominence of equality issues in the public sector is already having a knock-on effect for businesses working in partnership with it. This is likely to be accelerated if the Bill becomes law in its present form.

Q What about equal pay?

A At one point it was thought that the gvernment would introduce compulsory equal pay audits for private sector organisations. That idea has been dropped.

Instead the Bill includes a provision to encourage private sector organisations with at more than 250 employees to publish details about their gender pay gap. The hope is that organisations will do this on a voluntary basis.

Current Government policy is that employers will have until 2013 to do this, and the Bill contains a power to make the publication of this information compulsory if insufficient progress has been made by then.

Another suggestion is to improve trnsparency by outlawing gagging clauses in contracts of employment, which prevent employees from sharing information about their pay. Such clauses are not commonly found, so it is unclear how much difference this will make in practice.

The government has resisted other calls to make equal pay legislation more employee-friendly. The net result is that most provisions of the Equal Pay Act have been transferred into the Bill unchanged. At the risk of oversimplifying things, this looks like a success for the business lobby. A longer-term view might be that by not tackling equal pay issues now, employers are storing up problems for the future.

Q Will positive action be allowed?

A This is another topic that has had a great deal of media coverage, but the proposals in the Bill are quite limited. n the employment field it will only be allowed as a tie-breaker when selecting from a group of equally qualified candidates. In such circumstances, employers will be able to choose the candidate from a disadvantaged group.

Q Will employees who are carers have increased protection?

A The new general definition of discrimination will protect employees who are directly discriminated against, not because of their own characteristics, but because of those of a person with whom they are associated – for example a disabled relative for whom they are caring. This is probably a clarification rather than a change in the law, because a recent decision of the European Court of Justice has said that the concept of discrimination in EU law – with which the UK must comply – covers associative discrimination.

Q When will the Bill’s provisions come into effect?

A The government hopes the Bill will receive Royal Assent in Spring 2010, with the majority of its provisions taking effect in October next year. Some provisions, like the new public equality duty, will come into force in 2011.

If, as seems likely, the next general election is held in May 2010, this is an ambitious timetable for such a complicated piece of legislation.

Q Where can I find out more?

A The Bill is sponsored by the Equalities Office, although a great many other departments have been involved in its preparation. Copies of the Bill, and a great deal more, can be accessed from its dedicated web page at http://www.equalities.gov.uk/equality_bill.aspx. Rather than tackling the Bill itself (which, with explanatory notes, runs to over 500 pages) the best place to start is the introductory paper: “A Fairer Future”.