Proposals for a single, harmonised law dealing with all the equality ‘strands’ still leave some strands more equal than others.
The government has now begun consultation on a Single Equality Act. Yet in the past eight months we have had to absorb the introduction of age discrimination, new public duties in relation to disability and gender, and the extension of flexible working rights to carers.
But this Act is different. It is a consolidating Act and it is a big deal. It is the closest thing to an overhaul of our whole approach to discrimination law for 30 years.
Our current equality legislation is a patchwork of rights that broadly prohibit discrimination on the grounds of sex, race, disability, sexual orientation, religion or belief and age.
There are many anomalies between these strands, some of which arise out of this government’s decision to introduce European equality directives through secondary legislation. That meant it had to stick rigidly to the wording of the European directives.
But let’s not be churlish. The government wants to consolidate and harmonise, making the law more accessible and more unified – mostly.
It is currently unlawful to discriminate against a person not only because (i) he or she is a particular race, but also if (ii) the discriminator perceives that he or she is of particular race, or (iii) he or she associates with someone of a particular race. The same rules apply to religion or belief and sexual orientation.
Discrimination on the basis of perceived age is also unlawful, but not on the basis of association. Neither discrimination on the basis of perception nor association are unlawful in relation to disability, sex or gender reassignment.
Is the Single Equality Act supposed to harmonise everything?
With the exception of discrimination on the grounds of associating with a transsexual person, and some changes to the harassment definition in the ‘sex’ strand (which were forced on the government by the ruling in R (Equal Opportunities Commission) v Secretary of State for Trade and Industry), the government is proposing to retain the anomalies.
So it is not illegal to refuse to employ a woman because you think she might be disabled (although, in fact, she is not), or to reject a man because he has a disabled child who you think might distract him from his duties.
You can deny a promotion to a woman because you disapprove of her relationship with an older man, or refuse to give a man a pay rise because you mistakenly think he is transsexual.
Currently, public authorities have to manage general and specific duties to promote equality in relation to race, disability and gender, where each duty is framed in different terms. No such duties exist in relation to sexual orientation, religion or belief and age. But wait. A single equality duty under a Single Equality Act will presumably harmonise the legislation? Well, maybe.
There does seem to be a push to harmonise duties covering race, disability and gender. There is rather less enthusiasm for including sexual orientation, religion or belief and age in that single equality duty.
The easy stuff
Some of the proposals are unlikely to be controversial, such as a harmonised definition of indirect discrimination. Some change the law in very subtle ways such as removing the need for a comparator in victimisation cases.
However, there are areas where change is not bold enough and that is where your participation in the consultation could make a difference.
The consultation on the Single Equality Act
The consultation was issued by the Department for Communities and Local Government on 12 June.
Closing date for responses is 4 September 2007.
Take part now or you may have to wait another 30 years.
By Richard Kenyon, partner, Field Fisher Waterhouse
What do you think of the proposals?
E-mail firstname.lastname@example.org. For more analysis on the proposals, see the July issue of Employers’ Law.