Date 5 May 2009
The long-awaited publication of the Equality Bill took place last week. The intention behind the bill is to combine all forms of discrimination into one single Act and to strengthen the law to support progress towards equality. The changes are due to come into force in 2010 and are likely to be amended before the Bill takes effect.
A summary of the main proposed changes are as follows:
- Positive discrimination during recruitment in favour of disadvantaged groups will be permitted when an employer is considering candidates who are otherwise equally qualified;
- The Secretary of State will gain power to order employers with more than 250 employees to publish information about disparities in pay between male and female employees (although it has also been announced that this power will not be exercised until April 2013);
- A new duty for some key public bodies to pay due regard to socio-economic disadvantage in making strategic decisions is introduced, while there is also an extension to public sector duties to ensure equality in relation to age discrimination;
- The Bill outlaws any clauses in employment contracts which impose a secrecy obligation stopping employees discussing their pay packages;
- Discrimination by association will become unlawful where, for example, an employee is subjected to less favourable treatment by virtue of their association with a disabled person. This will make direct discrimination wider than is currently the case;
- For harassment, protection for employees is also extended. Focus will continue to be placed on unwanted conduct having a particular purpose or effect, but widens the definition so that it catches conduct ‘related to’ a protected characteristic. There will therefore be no need for a particular person’s characteristic to be the reason for the unwanted conduct in order to trigger employer liability. Employers will also now potentially be liable for harassment by a third party (e.g. a customer) if harassment has occurred on at least two earlier occasions and the employer has failed to take reasonably practicable steps to stop it;
- The Bill adopts the standard definition of indirect discrimination, being when a provision, criterion or practice (“PCP”), which is applied to all, puts those having a particular protected characteristic at a particular disadvantage, and that PCP is not a proportionate means of achieving a legitimate aim. This will now also cover indirect disability discrimination;
- The existing requirements to make reasonable adjustments to a provision, criterion or practice or to any physical feature of the workplace for disabled employees are retained, but are then supplemented by a requirement to take reasonable steps to provide an auxiliary aid where, but for the provision of such an aid, a disabled person would be at a substantial disadvantage; and
- Tribunals will have a new power to make recommendations in respect of an employer’s workforce as a whole (and not just in relation to a particular Claimant as at present) following a finding of discrimination.
If you have any queries as to the implications that the new law could have on your organisation, please contact Chris Cook on 01727 798029 or by email chris.cook@salaw.com.
© SA Law 2009
Every care is taken in the preparation of our articles. However, no responsibility is accepted as being owed to any person or organisation who acts on the basis of information contained in them. You should obtain specific advice in respect of individual cases.