The Equality Bill – Simplication or Complication

The much talked of Equality Bill is expected to come into force in October 2010. The Bill is intended to harmonise existing discrimination legislation; to strengthen the law; to support progress on equality and to replace certain technical language with “plain English”. This article highlights the key changes under the Bill, the likely impact on you of these changes and how to prepare for them.

The key proposed changes in the Bill:

• Discrimination by association or perception – The protection against discrimination by association and perception has been extended to all discrimination strands, thus significantly widening the scope for claims.
• Indirect Discrimination – Indirect discrimination is extended to cover disability and gender reassignment and to all forms of race discrimination (currently it does not apply to discrimination on grounds of colour or nationality).
• Direct Discrimination – The language of the protection is to change from “on the grounds of” to “because of”. While the intention is not to amend the law, rather to make the law more accessible to the ordinary user, the new wording could be interpreted as less objective and narrower than the previous wording.
• Harassment by third parties – The liability for harassment by third parties has been extended to all discrimination strands (save pregnancy, maternity, marriage and civil partnership). Currently this only applies to sex discrimination. An employer may be held liable for harassment by a third party where the harassment has occurred on at least two previous occasions, the employer is aware that it has taken place and has failed to take reasonable steps to prevent it. The language of the protection has been amended such that the unwanted conduct does not have to be “on the ground of” the protected characteristic, but rather only “related to” that characteristic – this widens the scope in that the employee will not have to prove the reason for the harassment and employees who are offended by conduct (even where it is not directed at them) also have a potential claim.
• Sex Discrimination – The protection in this area has been extended to include claims of contractual pay based discrimination (likely to include bonuses) such that a claim by an employee that she has been paid less than her male colleague can be based on a hypothetical comparator rather than an actual comparator, as is currently required under the Equal Pay Act provisions.
• Disability Discrimination – As well as extending indirect discrimination to include disability the Bill creates a new claim of discrimination arising from disability (and will remove the claim of disability related discrimination) under which an employer will discriminate against a disabled employee if it treats the employee in a particular way, which because of the employee’s disability amounts to a detriment and the employer cannot show that the treatment is a proportionate means of achieving a legitimate aim. The slight saving grace for employers is that such treatment will not be discriminatory if the employer did not know and could not reasonably have been expected to know that the employee was disabled. It is not clear how this last limb will be interpreted in terms of the steps that employers will be expected to take to ascertain disability. The duty to make reasonable adjustments remains intact.
• Victimisation – This is to be a freestanding cause of action under the Bill, thus removing the requirement to prove “less favourable treatment” than a person who has not carried out a protected act.
• Pay – Pay secrecy clauses in an employee’s contract of employment that seek to prohibit employees having a “relevant pay discussion” with colleagues will be unenforceable. However, this is defined as a discussion with a colleague, which is about pay and which relates to whether there is a connection between pay and having a particular protected characteristic. It seems that the discussion has to be in the context of a potential discrimination claim to gain protection. Further under the Bill any action taken by the employer in attempt to stop employees doing this will amount to victimisation.
• Publishing pay details – the Bill contains a power on the Government to issue regulations requiring employers with 250 or more employees to publish information relating to employees pay to show whether there are differences in pay for men and women. Employers who fail to comply face criminal prosecutions and a fine of up to £5,000. This obligation is not expected to be introduced until 2013 and may well not be introduced under a change in Government.
• Positive action – The concept of positive action is to be extended under the Bill such that employers may recruit/ promote an individual from an underrepresented group where they are an equally suitable candidate to a candidate from a non underrepresented group.
• Power of Tribunals – Tribunals will have the power to make recommendations to Respondents who have unsuccessfully defended discrimination claims that remedial steps be taken that benefit the wider workforce. However, the only proposed sanction for failure to comply with such a recommendation is an award of increased compensation “in so far as it relates to the complainant”.
• Public Sector – The public sector will be under a duty to have regard to the need to eliminate discrimination, victimisation and harassment, to advance equality of opportunity and to foster good relationships between those who have protected characteristics and those who do not when making decisions of a strategic nature about how to exercise its functions

Likely impact of the Equality Bill

Broadly it is likely to be easier for employees to bring discrimination claims if the Bill is enacted as currently proposed as the grounds on which they can bring them have been widened. There may be a rise in exploratory claims at the outset, particularly due to the expanded potential claims for associative and perceptive discrimination and to the amendments to the types of claims for disability discrimination.

We may also see a rise in claims brought in respect of disparity in pay, or suspected disparity in pay. This is an issue that the Bill has focussed on and Claimant’s will no longer be forced to bring these claims under the Equal Pay Act and thus face the difficulties of identifying actual comparators.

Tips

1. The changes have not yet been implemented, and it is a key area to ensure that you remain up to date on. HR law will continue to provide updates on the developments and the area will be likely to be the topic of future employment seminars at FW as well as the FW employment team being on hand for any specific queries as the changes draw nearer.
2. As the changes draw nearer consider providing or arranging training for Managers on the revised discrimination protections.
3. Again, as the changes draw nearer consider reviewing or arranging for your policies and practices to be reviewed to include references to the amended provisions, for example in equal opportunities policies, policies for dealing with harassment or grievance policies.

Martha Arnold is an employment and HR lawyer at Fox Williams LLP. She can be contacted on marnold@foxwilliams.com or 020 7614 2650