The Lords Committee Stage of the Equality Bill has been making rapid progress and barring something dramatic happening it is clear that the Bill does now have time to make it onto the statute books. A number of amendments have been made - perhaps most notably a measure making it unlawful for employers to ask employees about their health prior to offering them a job unless the employer can show that the question is necessary to ensure safety, make adjustments or ensure that the employee is capable of performing key tasks.
A breach of this rule is not an act of discrimination, however, and is enforced by the Equality Commission rather than the individual employee - much like the current rules on discriminatory advertisements.
There was some news coverage of the Government being defeated on the issue of religious discrimination - particularly the ability of religious bodies to specify requirements related to sexual orientation as genuine occupational requirements. The Government wanted to limit the scope of the exception and also require the application of the requirement to be ‘proportionate’. This was defeated but in practice tribunals will have to apply the proportionality test in applying the requirements of the directive so the argument is somewhat academic.
The Government have also so far refused to extend discrimination to cover caste. While something may yet be included in the Report stage, the Government’s response so far has been rather weak - arguing that there is insufficient evidence that such discrimination is widespread. IF the Bill does not eventually include provisions on caste we can expect attempts to be made in the Courts to have the concept of race given a wide enough interpretation to include ‘descent’ as required by the UN Convention on the Elimination of all Forms of Race Discrimination.
The final area of controversy - yet to be debated -is the provision on positive action (feel free to call it positive discrimination - it makes no difference). This may well be given a rough ride as it is probably the aspect of the Bill most vehemently opposed by the Conservatives.
Once the Bill is passed the next issue is when will it come into force? The Conservatives are no longer voting against the Bill and have said a number of things in the House of Lords indicating that they are keen for it to be passed. Does this mean that they will be happy to bring the Bill into force in the Autumn 2010 as currently scheduled? The answer may depend on the fate of the positive action provision.
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