The proposals aim to simplify and reform discrimination law by bringing more than 100 pieces of legislation into one Act and making changes designed to modernise the law and make it more effective.
The reference group for the review was made up of academics in the discrimination and human rights field, representatives of groups such as Stonewall, Age Concern, the British Humanist Association and Faithwise, the Equal Opportunities Commission, Commission for Racial Equality, Disability Rights Commission as well as the CBI and TUC. A number of possible reforms were proposed by members of the group, but most of the more worrying to employers have been provisionally rejected by the government in favour of isolated changes to the existing approach.
The government is now consulting over its provisional stance.
Key ideas rejected by the government
The following proposals are provisionally rejected by the government:
- Doing away with the requirement for a comparator in discrimination claims (this would have meant that claimants would no longer be required to show less favourable treatment than a comparator);
- Doing away with separate equal pay law (this would have meant bringing equal pay law in line with sex discrimination law and, for example, allowing claims for unlimited back pay and injury to feelings);
- Extending the duty to make reasonable adjustments beyond disability discrimination law to other areas of discrimination (this could have meant a duty to make special accommodation to all protected groups, including ethnic and religious minorities);
- Adding ‘being a parent or carer’ to the protected groups (this would have made it unlawful to discriminate directly or indirectly against parents or carers and would have widened the scope for flexible working claims);
- Allowing “hypothetical comparators” in equal pay claims (this would have allowed a woman to complain about pay discrimination without the need to point to an actual man in a comparable job);
- Extending the law to prevent discrimination on grounds of associating with the disabled or certain age groups (this might have extended the basis on which carers of adults/the disabled could claim flexible working).
The government’s provisional stance will no doubt be vigorously contested during the consultation process. We therefore take the view that we should provide evidence and arguments in support of the government’s current position on these issues wherever possible.
Key ideas accepted by the government
The reforms to which the government is provisionally committed include:
- Removing the list of ‘capacities’ (mobility, manual dexterity, hearing, sight, etc) from the definition of ‘disability’. We are concerned about the possible impact of this, for example:
- on medical reports, which are currently structured and illustrated on the basis of this list of capacities and could become more abstract and less useful for employers if it was removed; and
- on disputes over who counts as disabled – it is unclear if the change is supposed to widen the test of disability but employee representatives will no doubt regard it as doing so and try to re-open issues settled by previous case-law;
- Tightening up the test of justification in disability discrimination to bring it in line with the tougher test in other areas of discrimination law (this may be required by EU law so there may be limited scope for debate on this issue);
- Re-casting the law on victimisation so that employees will be protected against “detriment” for having made a discrimination complaint. Our initial view is that we are concerned about this, because the rationale for, and perceived impact of, the change is not made clear in the Review;
- Repealing the law prohibiting discrimination against married people;
- Codifying key equal pay case law in the legislation;
- Protecting transsexual employees against indirect discrimination (this would require employers to justify practices which put transsexuals at a disadvantage, for example a practice of not changing records to show a new gender identity);
- Outlawing discrimination against employees on the grounds that they associate with a transsexual person.
Areas where the government is seeking more views
The government also seeks views on the following questions:
- How should the public sector promote equality when procuring goods/services from the private sector? EEF is concerned that new requirements might make it harder for SMEs to bid for public sector contracts and would particularly welcome views from member companies which regularly bid for public sector work;
- Should there be a new “equality standard” for the private sector and should this be an accredited kite-mark?
- How else could good equality practice be encouraged in the private sector? EEF’s initial view is that an additional kite-mark in this area is unnecessary but that more practical guidance could be beneficial.
Age discrimination and insurance-related benefits
The government is considering extending age discrimination law beyond the employment sphere so that it applies to the provision of goods, services and facilities. If the legislation is extended in this way, the government plans to introduce specific exemptions to allow age to continue being used as a factor in calculating insurance premiums.
Our view is that employers should benefit from such an exemption where, for example, they pass on the increased cost of insurance to older workers or need to withdraw an insurance-related benefit from older workers because the cost of continuing to fund it has become too great.
Your comments
We would value your comments in formulating our response to the Review. Please send them by 3 September 2007 to Gemma Taylor, Legal Adviser at EEF.