Road Legal

It has been three years in the making but on 26 June 2008 the government finally published the White Paper ‘Framework for a Fairer Future – The Equality Bill’. The result is a culmination of the Discrimination Law Review and the independent Equalities Review that were established in 2005.

Even though this is as yet merely a White Paper and there is still some way to go before the bill will be brought into force, fundamental changes to the current proposals do not seem likely. You should consider the government’s plans now to prepare for what lies ahead. The Paper focuses on a number of different areas:

• Establishing an Equality Duty for public bodies
• Challenging age discrimination
• Increasing transparency
• Introducing positive action  to open up opportunities

The proposals have a number of aims, including: addressing any current shortfalls and serious inequalities that still exist; reducing red tape for businesses; and simplifying and consolidating the existing anti-discrimination legislation which has developed over the last 40 years, with the result of reducing the need for extensive legal resources required to ensure compliance with the law.

The government believes these aims can be achieved without placing any additional burden on businesses, whether small or large. But only time will tell as to whether the government’s aims are achieved or whether the bill will simply lead to more confusion and uncertainty with a whole raft of new issues and questions.

The proposals are controversial. When Harriet Harman unveiled them to the House of Commons, a lively debate ensued. Harman referred to the proposals as tackling ‘sexism in the City’ but one Conservative MP described the proposals as ‘completely and utterly outrageous’.

Just how widespread is discrimination?

The following figures were published in the White Paper:

• A woman’s full-time pay is on average 12.6% less per hour than a man’s full-time pay and women working part time are paid 40% less per hour
• Ethnic minorities are 15.5% less likely to find work than those who are white
• Disabled people are two and a half times more likely to be out of work than a non-disabled person
• 62% of over-50s feel they were turned down for a job because they are considered too old

The impact on public bodies

The bill is to replace the race, disability and gender public sector equality duties in favour of a new single Equality Duty, which will not only amalgamate the existing duties, but also extended the duty to include age, sexual orientation, religion, belief and gender reassignment. The aim is to ensure that the duty is more effective and ‘streamlined’.

The knock-on effect of the new Equality Duty on the private sector

One of the most significantly anticipated changes is the requirement for all public sector bodies – and those private firms with public sector contracts – to promote equality. Government figures currently show that 30% of private sector businesses are contracted by the public sector. Furthermore the TUC estimates the industry is now worth £150bn a year.

The remainder of the private sector will remain unaffected by the proposals.

Industry equality standards?

The Paper introduces the idea of creating a ‘kitemark’ for equality, following up on the recommendations of the Business Commission on Race Equality in the Workplace. The aim is to make those employers that comply with equality and anti-discrimination measures more attractive to potential employees, investors and customers.

The businesses will be required to report on their progress and performance with regards to equality within their organisation. A further aim is therefore to allow the government to analyse and review progress.

Age discrimination

The government proposes making it unlawful to discriminate against someone simply because of their age when providing goods, facilities or services or carrying out public functions. The law preventing unlawful discrimination will only extend however to unjustifiable discrimination.

Therefore those within organisations ranging from the NHS to insurance companies must take into consideration the impact this will have upon them and any guidelines that are currently in place for the provision of goods or services. The refusal of some types of insurance cover or medical treatment simply on the basis of age may thus become a thing of the past.

Transparency

Fundamental to the White Paper is the need for transparency; the government believes that in order to tackle inequality it is essential that it can be seen and identified. If transparency can be established, it is hoped that this will help identify the areas where work is needed.

It is proposed that the public sector will be under an obligation to make organisations transparent, as an extension of the proposed Equality Duty. However with regards to the private sector, there is no plan to impose any direct obligations.

Instead, transparency is to be achieved indirectly through the use of public sector spending within the private sector and working with businesses to improve equality.

Finally, and somewhat controversially, the plan is to ban the use of all secrecy clauses that prevent employees discussing their pay. The aim is to allow transparency between employees and their salaries, even if it cannot be achieved throughout organisations as a whole.

Positive discrimination

The government believes that the only way forward to eliminate disadvantage and discrimination is to take ‘positive action’. The use of positive discrimination is however limited to allowing employers to take into consideration any under-representations that may exist within the organisation during the recruitment process when deciding between two equally qualified candidates.

One apparent disadvantage is the probable increased need for thorough and complete documentation relating to the recruitment procedure in place within organisations, in order to provide protection from the more than likely increase in litigation resulting from positive action recruitment decisions.

The positive redress system has been welcomed by various groups and trade unions. However it has also been described as the reintroduction of discrimination into the workplace. Many believe that people should be employed on the basis of merit and capability and therefore find the proposals offensive and inflammatory.

Increasing the power held by employment tribunals

The plan is to allow employment tribunals to make recommendations which affect the workforce as a whole opposed to merely benefiting the employee bringing the action for discrimination. The power currently held is severely limited and is often not enforceable as the action involves an ex-employee.

At first glance this proposal may appear to only redress the employee’s complaints and benefit other employees within the organisation; however the aim is also to prevent future actions against the employers by altering and amending policies and procedures in place to conform.

Making it easier for employees to bring actions

The White Paper makes proposals in favour of introducing the use of representative actions. The representative action would be brought by trade unions and other organisations instead of the individual employees, therefore attempting to avoid the financial cost implications and distress attached to litigation of any type.

The proposals may be seen by some as removing the barriers and potentially increasing the number of actions against employers for discrimination. Therefore it will be essential for businesses to ensure that they have sufficient anti-discrimination procedures and guidelines in place.

What happens next?

The bill is due for introduction into Parliament in the next Parliamentary session and a more comprehensive insight into it is due to be published shortly.

Katie Mear is a trainee solicitor at Sykes Anderson LLP.