The Report Stage of the Equality Bill has been listed for 2nd December. As yet we don’t seem to have any proposed Government amendments which is a bit worrying because some aspects of the Bill - particularly those dealing with disability - need some serious attention. The Government may be thinking that amendments are best brought during the Lords Committee stage after Christmas and that the priority for the remaining Commons stages is to get them over and done with. Things are very tight if the Bill is to pass before the next election.
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It’s worth noting that there is still no date set for the next stages of the Equality Bill. We still need a Report and Third Reading in the Commons before the whole thing goes off to the Lords. This is getting really tight now - has the Government got the time (or the will) to push it through?
Today the Equality Commission publish a major report into the gender pay gap in the financial services industry. You can download and read the full report here.
To an extent pointing out the ways in which the industry discriminates against women is like shooting fish in a barrel, but I am still disappointed by the content of the report. While all of the headlines are about the gender pay gap, it is clear from the report that the key issue is occupational segregation. I don’t doubt that female hedge fund managers face a culture of discrimination, but too much of this report is about comparing male hedge fund managers with female admin workers or cashiers. Not enough account is taken of how a very few incredibly highly paid employees can distort the overall average.
S0 the part of the report I wanted to focus on was the section dealing with ‘in-grade’ pay gaps. What the report says is this:
3.16 The company data showed that in-grade gender pay gaps exist in 95 per cent of cases. In only five per cent of cases were there no job grades/categories with a significant gender pay gap. In 63 per cent of cases, more than half of all job grades/categories exhibited a significant gender pay gap. The prevalence of in-grade pay inequality suggests that the pay gap may not simply be a consequence of vertical occupational segregation but also reflects a failure to ensure equal pay for equal work.
The trouble with this is that the report is assuming that people on roughly the same grade are doing roughly the same job. We don’t know that that is true - and the table given in the report is really sketchy. In a bank, the top grade might be Senior Vice President - and that grade could encompass both a major fund manager bringing in huge amounts of revenue and the Head of HR who, valuable though that role is, does not. I was hoping that the report would really go into detail about specific jobs rather than reasonably obvious generalisations, but unfortunately it doesn’t.
There is also a certain naivety in suggesting that more flexible working options should be considered. Flexible working is a vital way of improving the lives of employees and of increasing equality but at some point reality intrudes. There are some jobs that require huge commitment and sacrifice. They take up most of the employee’s waking moments and the employee lives or dies by results. Most people would not last five minutes in such a job and the people who succeed in them are extraordinary (not just in a good way).
As long as such jobs exist they will attract extraordinary reward. At the moment women are less likely to have such jobs than men - but it is worth remembering that actually very few people, male or female, are in the market for that sort of role. Trying to reconcile jobs like that with a fulfilling family life is a pretty futile exercise in my view and it may be that women will always be less likely than men to take on such roles. I can’t bring myself to think it matters hugely.
What does matter is the discrimination that occurs at other levels in the organisation where normal people might want to work and the anecdotal parts of the report are of value here in terms of the culture of organisations and the pattern of recruitment. However that is drowned out in the coverage by focusing on a neat percentage representing the ‘gender pay gap’ - and. But the report does not nail down anything specific here. If the Commission thinks that reports like this will justify its continued existence to an incoming Conservative admininstration, they may be mistaken.
The Equality Bill has - exactly as scheduled - completed its committee stage in the House of Commons. There were relatively few changes made but two stand out:
- pregnancy discrimination is altered to refer to unfavourable rather than less favourable treatment
- a new clause is inserted providing for multiple discrimination - ie where someone is treated less favourably because they combine two protected characteristics
I don’t think either of these will have a huge impact. In particular the multiple discrimination clause is based on a misunderstanding of how comparisons work in direct discrimination - but don’t get me started, I can bore for England on that one.
The Government has also undertaken to look again at the provisions on disability conceding that they may not be ‘as clear’ as they should. This is code for ‘we’ve made a mistake and need to correct it’. We can expect amended provisions at report stage.
I still think that the Government has slipped up over positive action. The clauses currently drafted will not work in practice and in some respects are actually narrower than the current rules. Surely someoen will notice this as the Bill progresses?
Next stage is Report in the Commons. No date set yet but it will be sometime in the Autumn as Parliament now breaks for the summer. The Bill is still on schedule - but its still very tight.
In Committee on Tuesday the first amendments were made to the Equality Bill. The provisions referring to ‘less favourable’ treatment in relation to pregnancy and maternity were changed to refer to ‘unfavourable’ treatment. The idea is to remove the need for any comparator in pregnancy cases to comply with ECJ rulings. See the full list of proceedings here
The Equality Bill started its clause by clause consideration in Commons committee yesterday. So far the Committee has agreed to the first five clauses without amendment - although there was a division on Clause 1 which is the new public sector duty relating to socio-economic disadvantage.
200 clauses to go…
…well sort of
On a first reading it seems as though the House of Lords was only asked to deal with the issue of whether a failure to pay holiday was an unlawful deduction from wages under the Employment Rights Act or a claim to be made under the Working Time Regulations. They held that it was an unlawful deduction which means that a series of non-payments can be the subject of a tribunal claim even if it stretches back years.
What was not decided as far as I can see is how to apply the ECJ judgment which allowed for two possible interpretations of the holiday provisions. Under one interpretation holiday can be taken during sickness absence. Under the other approach holiday cannot be taken during sickness absence but must be allowed when the employee returns - even if that means carrying over the full holiday entitlement into subsequent holiday years. It seems that the parties were no longer in dispute about this before the House of Lords. This leaves a bit of uncertainty in the law which will have to be picked up in future cases.
You can read the full decision here
The Equality Bill received its second reading in Parliament yesterday. Serious anoraks can read the debate here. The frustrating thing about the debate is how many contributors either misunderstand the Bill or misunderstand the law as it currently stands. It would take too long to point out individual errors, but there was a debate about employers requiring employees to speak Polish where nobody seemed to know how the current law would deal with that (indirect race discrimination; issue would be whether the requirement was justified). Positive action was also widely misunderstood and some of the difficulties in terms of age discrimination and insurance were simply glossed over.
Never mind - the real work starts when the Bill moves into Committee. That’s where it receives clause by clause scrutiny and amendments are made. I’ll be keeping track of every amendment so watch this space. The Committee stage will be completed on 7th July, by which time the Commons will be ready to take its much earned 12 week summer holiday. That leaves a lot still to do in the Autumn and early next year. Will the Government actually have time to push the Bill through?
As I write this I’m listening to the debate in Parliament on the second reading of the Equality Bill. Although the Conservatives support parts of the Bill they will vote against it tonight.
As I suspected, most of the debate so far is focussed on public sector duties and gender pay gap issues. No-one is grappling with the real detail - we will have to wait for the committee stage for that.
One issue that has come up is the issue of caste discrimination. When asked about it, Harriet Harman suggested that it was already unlawful. It isn’t as far as I am aware. Caste is not the same thing as race or ethnic origin and if an employer bases a choice between two employees of the same ethnic origin based on their caste then that is not, it seems to me, to be discrimination. Perhaps this is an issue that the Government will be prepared to move on.
Harriet Harman also claimed that the Bill outlaws discrimination against carers. I can’t find this provision anywhere. It outlaws discrimination because of the protected characteristic of someone they associate with, but that is not the same thing as treating someone less favourably because they have caring responsibilities. Could this be something for further development as the Bill progresses?
The Government has published a consultation document on implementing the Agency Work Directive. We expect full Regulations to be published in the Autumn and they are likely to take effect early next year.
Note that even if there is a change of Government following an election, the Directive will still need to be implemented.
The Regulations will transform the way in which agency workers are engaged in this country - but they will not have the effect of making agency workers employees or giving them the right to claim unfair dismissal. The main impact will be on the employment terms - particularly pay and holidays - which agency workers are entitled to once they have been on an assignment for 12 weeks. It is important to realise that both agencies and end users will have legal obligations to meet.
When the Regulations are finalised, all employers who use agency workers will need to get up to speed in time for the new regime. We will be running in-house courses for clients on this issue from October onwards when the details of the new rules become clear. To arrange a course in your organisation contact Paul Gasowski on 0208 943 1099 or email him at : paul@incotraining.co.uk
