On 27 April the Government published its long-awaited Equality Bill (the Bill). It will now progress through Parliament and is expected to receive Royal Assent in Spring 2010. Those provisions which will have the greatest impact on employers are set out below.
New definition of discrimination
The Bill aims to simplify and harmonise existing discrimination legislation. Discrimination will be defined by reference to nine “protected characteristics”: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation. Standard definitions of direct and indirect discrimination are included and a new concept of indirect disability discrimination is introduced.
The prohibition on associative and perceptive discrimination and harassment has been extended to all strands of discrimination. It is currently unlawful to discriminate against a person who is associated with someone disabled or of another sexual orientation, race, religion or belief. The Bill extends protection to all the protected characteristics except marriage and civil partnership. Problems are most likely to arise in relation to carers, and employers need to be careful not to discriminate against employees who are carers of elderly or disabled people.
Protection is also extended to those who are perceived to have one of the protected characteristics, even if that perception is incorrect. So teasing or banter related to any protected characteristic could expose employers to discrimination claims, regardless of whether the victim actually possesses that characteristic.
Gender pay reports
Public sector employers with over 150 employees and private sector employers with over 250 employees must publish certain information about male and female pay. The exact nature of the information is yet to be finalised but will probably include bonuses as well as salary. Press reports have suggested that a simple hourly rate comparison will be required, but this may be too crude to be meaningful. The Government hopes that private sector employers will publish information voluntarily and does not intend to make specific regulations before April 2013.
Salary secrecy clauses
The Bill will outlaw contractual terms which prevent employees from discussing their pay. Employees will not be compelled to disclose details of their pay to their colleagues but cannot be prevented from doing so. Any action taken against employees who do discuss their pay will be treated as victimisation.
The Bill extends the current positive action regime. Employers will be allowed to recruit or promote employees from under-represented groups if they have two equally qualified candidates, provided they do not have a general policy of doing so in every case. It does not allow employers to have a policy of automatically treating people from an under-represented group more favourably or permit employment quotas.
Employers will not be compelled to take positive action, and may be unwilling to do so. Difficulties will arise if a disappointed candidate can prove that his qualifications were better than the successful candidate and employers may then be vulnerable to a discrimination claim.
Harassment by third parties
As discussed in a previous email alerter the Sex Discrimination Act 1975 was amended last year to impose liabilities on employers where employees are harassed by third parties in the workplace. The Bill extends this liability to all strands of discrimination. The liability only arises where harassment has taken place on at least two occasions and the employer is aware of the harassment and has not taken reasonable action to prevent its repetition.
Recent cases (including London Borough of Lewisham v Malcolm) changed the correct comparator test in disability-related discrimination cases making it harder for employees to show less favourable treatment on the grounds of disability.
In response to this, the Bill introduces a new concept of indirect disability discrimination but also includes provisions to ensure that the protection which was provided by disability-related discrimination is reinstated.
The Bill provides that a person discriminates against a disabled person if:
- he treats the disabled person in a particular way;
- because of that person’s disability, the treatment amounts to a detriment; and
- he cannot show that the treatment is a proportionate means of achieving a legitimate aim.
As a result the test for determining a comparator should return to the pre-Malcolm position.
Extension of powers of Employment Tribunals
Currently, Employment Tribunals can only make recommendations which benefit a successful claimant in a case. The Bill will give Tribunals the power to make recommendations in discrimination cases which benefit the employer’s entire workforce rather than just the individual claimant. Failure to comply with such a recommendation could then be used as evidence in any subsequent discrimination claims.