The Equality Bill aims to streamline and modernise UK discrimination law by making a series of changes and bringing more than 100 pieces of legislation into one Act.
Key areas for employers to watch
The most controversial proposals for change include:
- Public sector procurement - the government plans to use public procurement to bring about improved equality practice in the private sector. For example, to win public sector work in future, employers will have to demonstrate their equality credentials and may need to provide statistics on the percentage of their staff from ethnic minorities or what is the percentage gender pay gap in their workforce.
- Representative actions in discrimination cases – the government is considering giving trade unions and the Equality and Human Rights Commission the ability to take single ‘representative’ actions on behalf of a group of individuals (so that employees will not need to bring individual claims in their own names).
- ‘Associative’ discrimination – the government is considering legal protection to employees who ‘associate with’ the disabled/ people of a particular age which, depending on how the extension is framed, could end up giving carers greater flexible working rights.
- Extension of employment tribunal powers – the Bill will empower employment tribunals to make broad ‘recommendations’ to employers who lose discrimination claims, such as the introduction of an equal opportunities policy.
Other key proposals
- Secrecy clauses - the Equality Bill will outlaw ‘pay secrecy clauses’, i.e. clauses in employment contracts which ban employees telling colleagues how much they are paid. However, employees will not be required to disclose their pay if they do not want to do so.
- Equality kite-mark – a new equality kite mark scheme is to be developed for employers who want to be able to showcase their equality practices.
- Positive action - the Bill will widen the scope for employers to take positive action in favour of minority groups. For example, when choosing between an equally-well-qualified man and woman for a job, an employer will be able to select the woman on the basis of her sex if women are under-represented in its workforce.
- Disability discrimination – the Bill will abolish the list of ‘capacities’ (mobility/manual dexterity etc) in the current definition of disability and will toughen up the test for justifying disability-related discrimination. The Bill could make other changes in the light the recent House of Lords decision which has thrown the law in this area into some confusion. Click here for our report of that decision.
- Multiple discrimination – the government appears open to using the Bill to legislate against ‘multiple discrimination’ (e.g. where black women are treated less favourably not solely because they are either black or female but because they combine these characteristics).
- Third party harassment – the government may also use the Bill to introduce specific liability for employers who fail to take sufficient steps to protect employees from racial, religious and other harassment by customers or clients (there is already specific legislation covering sexual harassment).
Things that didn’t make it into the Bill
Some of the most controversial proposals discussed in the discrimination law review have not made it into the Bill. These include:
- Compulsory equal pay audits – many trades unions and anti-discrimination bodies have argued strongly that employers should be required to carry out pay audits to identify cases where women are paid less than men for work of equal value. The government has decided that the Bill will not require compulsory equal pay audits but that the situation will be kept under review.
- Compulsory reporting on equality performance – the government initially considered requiring companies to report to stakeholders and shareholders on their equality performance. In the end, however, the government has decided to focus on public procurement and the equality kite-mark as a means of encouraging transparency. But the government states that it will keep the situation under review and will consider legislating for greater transparency in the next 5 years.
Our view
The Bill could have been considerably worse and we are relieved that the government rejected some of more radical proposals that were under consideration, in particular compulsory equal pay audits. We will be urging the government to resist any pressure to re-introduce these proposals as the Bill goes through Parliament.
A key issue for our members will be the decision to use public sector procurement to improve equality practice in the private sector. Our concern is that this risks excluding SME’s, who may have exemplary approaches to equality but lack sufficient resources, policies & procedures to demonstrate them.
In addition, we do not believe that making public sector work conditional on publishing statistics will achieve greater equality. For example, requiring an employer to publish the average rate of pay for both men and women is unlikely to encourage more women into the engineering sector and could potentially have the opposite effect of deterring them.
Our detailed views on other issues can be found in our contribution to the discrimination law review. Click here to read 'Discrimination Law Review - EEF Responds' on EEF website.
Have your say
We continue to welcome views from our members on the government’s proposals. We are particularly keen to hear your views about the use of public procurement to improve equality practice in the private sector and about initiatives to discourage stereotyping and promoting diversity within our sector. Email our expert Gemma Taylor with your views.
Click here for a link to the full 209-page document published by the government.