Equality Bill measures could open a can of worms

HR legal eagles will need to swap their summer read for some serious Equality Bill swotting, following the raft of controversial new measures announced last week.

The purpose of the Bill is to “strengthen protection, advance equality and de-clutter the law”. However, far from being a definite move in the right direction, equality minister Harriet ‘Harperson’s’ framework document has raised a few eyebrows – in particular with its moves to allow employers to give preferential treatment to female and ethnic minority candidates.

It lacks clarity as to how a business could positively discriminate in a lawful way and, by inconsistently referring to both ‘equally suitable’ and ‘equally qualified’ candidates in describing the positive discrimination test, it raises more questions than it answers.

Lawyers have been quick to warn of potential claims from aggrieved job applicants who feel the employer should have used its discretion to discriminate because their race or gender is under-represented at a particular organisation. Or claims from ‘non-minorities’ who feel they have been passed over for a job.

While many private sector companies have been let off the hook in Harman’s watered-down plans, the headline-grabbing ban on ‘gagging’ clauses around pay and bonuses – being brought in as a move towards greater transparency within organisations – could open a can of worms, with staff being given the green light to compare their wages and challenge those employers who pay them less.

And HR professionals in financial services firms face the unenviable prospect of an inquiry into the 41.5% gender pay gap that plagues the sector.

As always, the devil will be in the detail, with the final Bill itself coming later this year. But employers won’t have long to wait until the next instalment – due next month – which delves into the content of the government’s response to last year’s consultation. In the meantime, HR is left to ponder how some of the currently vague measures will be translated into workable legislation.

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