With so much attention being focussed on news stories surrounding executive pay and job losses, it has been easy to overlook the recent publication of the Equality Bill. The Bill represents the Government's attempt to harmonise UK discrimination laws and to advance the Government’s equality agenda. Make no mistake though, the Equality Bill, which will come to be known as the Equality Act 2009, has far-reaching consequences for discrimination laws. It is an ambitious attempt by the Government to provide an equality blueprint for the 21st Century.
The Grounds of discrimination
The Bill makes it clear that the "protected characteristics" are:
- gender reassignment;
- marriage and civil partnership
- pregnancy and maternity;
- race, religion or belief;
- sex; and
- sexual orientation.
The seismic changes
- Broader definition of direct discrimination
Direct discrimination occurs where the reason for a person being treated less favourably is a protected characteristic (eg. race, sex, age etc). The new definition contained in the Bill is broad enough to cover cases where the less favourable treatment is because of the victim's "association with" someone who has the protected characteristic, or because the victim is wrongly thought to have it themselves. This is a huge extension of our current law.
- If a Muslim shopkeeper refuses to serve a Muslim woman because she is married to a Christian, this would be direct religious or belief-related discrimination on the basis of the Muslim customer's association with her husband.
- If an employer rejects a job application form for a white man whom he wrongly thinks is black because he has an African-sounding name, this would constitute direct race discrimination based on the employer's mistaken perception.
The Bill provides for 3 types of harassment:
- the first type, which applies to all the protected characteristics apart from pregnancy and maternity, and marriage and civil partnership, involves unwanted conduct that has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant;
- the second type, sexual harassment is unwanted conduct of a sexual nature where this has the same purpose or effect as the first type of harassment;
- the third type is treating someone less favourably than another because they have either submitted or failed to submit to sexual harassment, or harassment related to sex or gender reassignment.
- A white worker who sees a black colleague being subjected to racially abusive language by their manager could have a case for racial harassment if the language also causes an offensive environment for them.
- An employer who displays any material of a sexual nature, such as a topless calendar, may be harassing their employees where this makes the workplace an offensive place to work, whether the employees are female or male.
- Liability for harassment of employees by third parties
The Bill makes an employer liable for harassment of its employees by third parties, such as customers or clients, over whom the employer does not have direct control. Liability in relation to third party harassment will, however, only arise when harassment has occurred on at least two occasions, the employer is aware that is has taken place, and has not taken reasonable steps to prevent it happening again.
- A shop assistant with a strong Nigerian accent tells her manager that she is upset and humiliated by a customer who regularly uses the shop and each time makes derogatory remarks about Africans within her hearing. If her manager does nothing to try to stop it happening again, he would be liable for racial harassment.
- Discussions with colleagues about pay
As part of the Government's overall objective to eradicate inequality in pay, there is a new provision designed to protect people who discuss their pay with colleagues with a view to finding out if differences exist that are related to a protected characteristic, such as gender. Any action taken against them by an employer as a result of doing so is treated as victimisation (which is a particular form of unlawful discrimination). Accordingly, terms of employment or appointment that prevent or restrict people from disclosing their pay to their colleagues are made unenforceable to the extent that they would prevent or restrict such a discussion. This provision is intended to ensure that there is greater transparency and dialogue within workplaces about pay.
- A female employee thinks that she is underpaid compared with a male colleague. She asks him what he is paid, and he tells her. The employer takes disciplinary action against the man as a result. The man can bring a claim for victimisation against the employer for disciplining him.
- A female employee discloses her pay to one of her employer's competitors in breach of a confidentiality clause in her contract. The employer could still take action against her in relation to that breach.
- Gender pay gap
Another new provision is a power enabling the Government to require private sector employers with at least 250 employees in Great Britain to publish information about differences in pay between their male and female employees. The regulations may specify, among other things, the form and timing of the publication, which will be no more frequently than annually. The regulations may also specify penalties for non-compliance. Employers who do not comply with the publication requirements could face civil enforcement procedures or be liable for a criminal offence, punishable by a fine of up to £5,000. This is an entirely new provision. The Government wants large private sector employers in Great Britain to publish information on what they pay their male and female employees, so that their gender pay gap is in the public domain. The Government's aim is for employers to publish such information on a voluntary basis. However, if this does not take off, the Government intends to make regulations under this power by April 2013.
- Positive Action
There is a separate (and new) provision relating to positive action in recruitment and promotion situations. Employers are allowed to take a protected characteristic into consideration when deciding who to recruit or promote, where people having the protected characteristic are at a disadvantage or are under-represented. This can be done only where the candidates are equally qualified, and employers are not allowed to have a policy of automatically treating people who share a protected characteristic more favourably than those who do not. Recruitment is defined broadly, so would cover offers of partnership. For example:
- An employer offers a job to a woman on the basis that women are under-represented in the company's workforce when there was a male candidate who was more qualified. This would be unlawful direct discrimination.
- An employer which employs disproportionately low numbers of people from an ethnic minority background identifies a number of equally qualified candidates for recruitment and gives preferential selection to a candidate from an ethic minority background. This would not be unlawful, provided the comparative merits of other candidates were also taken into consideration.
- Employment Tribunals
An Employment Tribunal is to be granted wider remedies in discrimination claims. Currently, an Employment Tribunal can make a declaration regarding the rights of the employee and/or the employer, order compensation to be paid, including damages for injury to feelings, and make an appropriate recommendation. However, currently a Tribunal can only make a recommendation in relation to the parties to the claim. Under the Bill, the Tribunal can make broader recommendations to reduce the negative impact of the employer's actions which gave rise to a successful discrimination claim, not just in relation to the individual employee, but also the wider workforce. The recommendation would have to state that the employer should take specific action within a specified period of time. Examples of recommendations would include:
- Introducing an equal opportunities policy;
- Ensuring that an employer's harassment policy is more effectively implemented;
- Setting up a review panel to deal with equal opportunities and harassment/grievance procedures;
- Re-training staff; or
- Making public the selection criteria used for transfer or promotion of staff.
The impact of the Bill will only be known once it becomes law and has had time to bed down. However, the Bill represents the biggest change in our discrimination laws for many years and reflects the Government’s wish to create more streamlined and forward-thinking discrimination legislation.