First Impressions of the Equality Bill

Well – no sense of anti-climax at all. There are all sorts of intriguing details in the Bill and obviously I have only had the opportunity to scan it briefly. It is clear however that the law on disability discrimination is being transformed and I will post a separate analysis of this shortly. Generally, the biggest change to the law in employment terms is the introduction of positive discrimination in clauses 152 and 153. This is much wider than expected and is not limited to recruitment. There is a general ability to discriminate in favour of underrepresented groups if certain conditions are met and it is a proportionate means of achieving a legitimate aim. In recruitment and promotion there is an ability to discriminate where ‘A is as qualified as B to be recruited or promoted’ and the purpose is to improve equality. I can’t find a definition of when A is to be regarded as ‘as qualified’ as B. This is a big change, and I expect these provisions to undergo some amendment before they are passed

Oddly this actually amounts to a tightening of the law on disability. Positive disability discrimination will have to meet this test whereas under the current law there is no restriction on discrimination in favour of disabled people.

Other key features as far as employment discrimination is concerned:

• By and large we have a single definition of direct and indirect discrimination covering nine ‘protected characteristics’: that’s sex, race, age, disability, gender reassignment, religion or belief, sexual orientation, marriage or civil partnership and pregnancy or maternity.
• A specific right to be treated equally in terms of absence is provided for those going through gender reassignment
• Indirect discrimination will extend to disability
• There is a new definition of disability related discrimination where the justification defence is ‘proportionate means of achieiving a legitimate aim’
• Indirect discrimination is extended to cover disability discrimination
• Third party harassment which currently only applies in sex discrimination is applied to all of the grounds of harassment
• In equal pay, a long-term objective of reducing inequality between men’s and women’s terms of work is always to be regarded as a legitimate aim.
• Discussions with colleagues about equal pay are to be protected
• There is a power to require employers with over 250 employees to produce gnder pay gap information (this could only be acted on after the next election so there may not be much to worry about in this one)
• Tribunals are given the power to make recommendations in all discrimination cases (no remedy for not complying with the recommendation that I can find)
• There is a single equality duty introduced for the public sector and a separate duty to promote social equality (press coverage will emphasise this but in reality how important will it actually be?)

Overall the Bill is certainly drafted in a more plain English style. Whether that affects the meaning remains to be seen. For example direct discrimination is described as treatment ‘because of’ the protected characteristic (get used to that phrase) rather than ‘on the grounds of’ the notes say the meaning doesn’t change – but I wonder…

Lots to take in and lots to talk about. I need to have a lie down now before I start looking at the whole thing line by line. There’s a fascinating and busy summer ahead.