Welcome to the latest edition of our equality law update. Our aim is to keep you up to date with recent and forthcoming key developments to help you manage your diversity and equality challenges. We do hope you find it useful. Please do not hesitate to contact us if you wish to find out more.

Gender pay gap 

Further details were revealed in August of the proposed new rules that will oblige larger employers to publish data about their gender pay gap. In this note on gender pay gap reporting we answer some frequently asked questions about the new reporting regime. And this article looks at steps taken by governments elsewhere in the world to encourage, or require, employer transparency on gender pay gaps.

English (or Welsh) fluency in the public sector

New rules take effect this month to ensure all public sector workers in public-facing roles speak fluent English (or Welsh, where appropriate). Read about the discrimination risks for employers affected by the new regime.

Public sector equality duties and planning decisions

The case of LDRA Ltd v Secretary of State for Communities and Local Government illustrates the need for local authorities to be mindful of the public sector equality duty when making planning decisions and to take a pro-active rather than a ‘tick box’ approach to discharging the duty when it is engaged. Read our article on the Public Sector Equality Duty and Planning.

Brexit - discrimination risks

Following the referendum we have been asked by some employers who fund external education or training for future employees whether they can refuse funding to EU citizens who might not in the future have the right to work in the UK. The answer to this, and other Brexit-related questions, can be found in our Brexit briefing note.

Tribunal judgments to be made public

From an unspecified date this Autumn, all new Employment Tribunal judgments (and possibly some older ones) are to be published in an online searchable database, accessible to the public. The media will take a keen interest and cases that might otherwise have gone unnoticed could attract publicity. This could encourage some parties to settle claims they might otherwise have fought. Where a case does not settle, employers should consider drawing up a communication strategy so they are ready to deal with any media interest.

Equal pay claims against supermarkets - latest news

A Tribunal published its latest judgment in the ASDA equal pay litigation on 14 October, following a preliminary hearing in the Summer. The Tribunal ruled that the claimant shop floor workers could, in principle, compare themselves with depot workers at different locations for equal pay purposes because they had the same employer and ‘common terms’. The claimants still need to prove, at another hearing, that their jobs were of ‘equal value’ to those of their colleagues in distribution. If the claimants overcome that obstacle, there will probably be yet another hearing to consider whether there were valid, ie non-discriminatory, reasons for any pay differences. As the case progresses, the Tribunal’s decisions could well be appealed to the Employment Appeal Tribunal or beyond. So, unless the parties agree a compromise deal, the dispute could run on for years. In the meantime Sainsbury’s is facing similar litigation and other large retailers are watching the cases with great interest.

Shared parental leave for grandparents

The referendum result and subsequent government reshuffle have delayed the government’s plans to launch a consultation exercise on proposals to extend the shared parental leave regime to grandparents and simplify the administration of the current regime. We still expect the consultation to be launched in the coming months, however. 

Shared parental leave and discrimination

Sticking with the theme of shared parental leave, you may have picked up on news stories about the case of Snell v Network Rail, in which a Tribunal ruled in favour of a male employee who complained that his employer’s policy of enhancing shared parental pay for (birth) mothers but not fathers was sex discriminatory. The case is of no real significance from a legal perspective, not least because the employer admitted there had been indirect discrimination, and in return the claimant dropped the direct discrimination claim; so the Tribunal only had to determine the appropriate level of compensation based on the specific facts of the case. We understand another discrimination case is pending against a different employer on the more common practice of paying enhanced maternity pay but not enhancing shared parental pay for everyone.

Caste discrimination consultation

The government has announced that it will launch its long awaited consultation on caste discrimination within the next few months. The consultation will seek views on whether additional measures are needed to ensure victims of caste discrimination have appropriate legal protection and effective remedies under the Equality Act 2010.

Working forward - supporting pregnancy and maternity rights

The Equality and Human Rights Commission has launched a new national campaign aimed at tackling discrimination against pregnant women and new mothers. The business-led campaign is designed to show employers how to attract, develop and retain women at work. Further details can be found on the EHRC’s website.

EU news

The EU Council and Parliament have approved, in principle, a new directive concerning the accessibility of public bodies' websites and mobile apps to people with disabilities. The Accessibility Directive is likely to take effect in mid to late 2018 ie pre-Brexit. Its impact in the UK is likely to be limited, however, as our domestic law already requires public bodies to make reasonable adjustments for people with disabilities.

Separately, the EU Commission has proposed a new European Accessibility Act, containing accessibility requirements for certain products and services including, amongst others, computers and operating systems; smartphones; and TV and telephony equipment. The proposed measure is still under discussion and will probably run up against some resistance in the EU’s Council, meaning it is unlikely to take effect before the UK leaves the EU. Further details can be found on the EU Commission’s website.

Equality forecast

Finally, read our outline of other discrimination law developments that are in the pipeline.