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.
Continue reading ‘Implementing the Agency Work Directive’
The Equality Bill has been scheduled for its second reading in the Commons on 11th May (A week on Monday). Second reading debates are always frustrating (in the Commons at least) because so few of the MPs will be sufficiently familiar with discrimination law to talk about the detail. The real work starts when the Bill goes into Committee.
The Government is proposing to amend the Equality Bill (Already?) to provide for multiple direct discrimination. That is to say, discrimination on the grounds of multiple protected characteristics eg ‘I won’t employ you because you are a black disabled man ‘. I’m not convinced of the need for this – the above example is really just an example of discrimination based on race, disability and sex and surely can be pleaded as such. However I’ll have a careful look at the consultation document (here) and see if it makes sense.
Another thought on the Equality Bill’s provisions on disability discrimination. Clause 14 of the Bill is designed to address the House of Lords’ judgment in Lewisham v Malcolm which essentially rendered the current definition of ‘disability related’ discrimination meaningless.
But I have been staring at Clause 14 for 2 days now – and the fact is, it doesn’t make any sense.
Continue reading ‘Equality Bill – disability discrimination’
