The Government has published its White Paper, Framework for a Fairer Future – The Equality Bill, setting out its proposals for a Bill to be published in the next Parliamentary session.
Many of the White Paper’s proposals fall outside the employment law field. The main issues which will affect employment law are set out below.
The Bill is intended to make the law more accessible and easier to understand by combining nine pieces of discrimination legislation and about 100 other laws into one single Bill.
Equality Duty on public bodies
A new single equality duty will replace the race, disability and gender equality duties, which will also extend to gender reassignment, age, sexual orientation and religion or belief. The Government hopes that because there will be a single process, public bodies will be more effective in focusing their efforts on outcomes, rather than procedure. The White Paper acknowledges that several public bodies have already put single equality schemes into practice.
Extension of positive action
The Bill will widen the scope of permitted positive action so that when employers are choosing between two equally qualified job candidates, they can take into account under-representation of disadvantaged groups such as women and ethnic minorities. The White Paper does emphasise that there will be no requirement to discriminate positively and employers will not be allowed to favour a less suitable candidate. The Equality and Human Rights Commission (EHRC) will publish guidance on these new measures giving employers examples of action that can be taken.
All public bodies will be expected to report on important inequalities such as gender pay, ethnic minority employment and disability employment. There will be further consultation as to which bodies should adhere to these requirements and what information should be published.
The Government also aims to improve transparency in the private sector in several ways, which include:
- Requiring public bodies to fulfil their Equality Duty by encouraging more transparency among private sector contractors contracting for public sector work.
- Banning secrecy clauses which prevent people discussing their own pay. Note that this will not “force” employers to disclose salary structures.
- Requesting that the Equality and Human Rights Commission conduct enquiries into particular sectors, especially the financial services and professional services sectors.
- Developing, in conjunction with business, a “kite-mark” scheme for employers who are transparent about reporting their progress on equality and working with the CBI and unions amongst others, to gather evidence on the effectiveness of equal pay audits in closing the gender pay gap.
It is proposed that tribunals be allowed to make wider recommendations in discrimination cases, which will go beyond merely benefiting the individual claimant to benefit the larger workforce by deterring discrimination in the future and encouraging better employment practices.
The White Paper also explores the potential for allowing discrimination claims to be brought on combined multiple grounds, for example where a black woman has suffered discrimination which might not have been suffered by a black man or a white woman. This is a very complex area and the Government acknowledges that it will have to explore the benefits and the cost implications.
In proposing these moves the Government aims to tackle discrimination that arises as a result of institutional policies which may have been in place for years and thereby become part of a company’s culture.
What happens next?
Although this White Paper gives some indication of the Government’s thinking in a number of areas, for further details we must await publication of a more comprehensive paper on the content of the Equality Bill, which the Government Equalities Office has said will be out “shortly”. This will include the Government’s response to the 2007 consultation Discrimination Law Review – A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain. We also look forward to seeing the draft Bill itself.