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’
The frustrating thing about news reports on the Equality Bill is their concentration on the least important – but most political aspects of the Bill. Take the ‘socio-economic duty’. This is a duty placed on public bodies to ‘have due regard’ to the desirability of exercising their functions in a way that is designed to reduce the inequalities in outcome that result from socio-economic disadvantage.
In deciding how to do that the public body must take account of any guidance issues by a Minister.
Continue reading ‘What the Equality Bill is Not About’
One issue that strikes me looking at the provisions on disability discrimination is that the current system that basically allows positive discrimination by default because you need to be disabled to bring a claim will go. The first point is that direct discrimination is less favourable treatment because of a ‘protected characteristic’. Disability is defined as a protected characteristic – but it is clear that the person claiming does not need to be disabled. That means that if I were to recruit someone because they were disabled that would amount to direct discrimination under Clause 13 against the non-disabled job applicant.
Continue reading ‘The Equality Bill: Positive discrimination and Disability’
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
Continue reading ‘First Impressions of the Equality Bill’
And we’re off! The Bill is here with side by side notes! Some serious reading to do now and then we can see what the big changers are.
I’m far more excited by this than a grown up should be!
