Background

The Government’s Equality Bill (the Bill) was introduced in the House of Commons on 24 April and published on 27 April 2009. The Bill aims to bring together current legislation in this area, consisting of nine major pieces of discrimination legislation, around 100 statutory instruments setting out rules and regulations and more than 2,500 pages of guidance and statutory codes of practice. The Government argues that it will provide simpler, more consistent anti-discrimination protection.

The Bill dates back to February 2005 when the government introduced the Discrimination Law Review (DLR). The aim of the DLR was to consider the opportunities for creating a clearer and more streamlined equality legislation framework. The DLR initially ran alongside the Equalities Review, which published its final report Fairness and Freedom in February 2007. The DLR published its green paper, A Framework for Fairness, in June 2007.

The Bill outlines the Government’s proposals to bring together existing legislation as well as expanding protections on religion or belief, sexual orientation, age and disability. It is intended to streamline the law, to help people understand their rights, and to help businesses comply with the law.

The second reading of the Bill was held on 11 May 2009. The Bill is expected to enter the Commons Committee stage in June 2009 and reach the House of Lords by the beginning of the new parliamentary session. During the passage of the Bill the approaches to specific duties (relevant to public bodies) will be open for consultation. Subject to the parliamentary process, the Bill is expected to achieve Royal Assent in Spring 2010. It is intended that the majority of the provisions will come into force in Autumn 2010, and the provisions relating to the socio-economic and equality duties in Spring 2011 and beyond.

Overview of the Bill

The Equality Bill contains proposals which are aimed at traditionally discriminated against groups in society such as women, ethnic minorities, older people, disabled people, those with different religions or beliefs, lesbian, gay, bisexual and transsexual people. The outlined proposals aim to improve fairness for people facing inequality. The proposals also include specific duties for the public sector that will impact on public bodies not only as employers but as service providers.

The key measures proposed in the Bill are:

• Positive action: This measure would allow employers to (voluntarily) make their workforce more diverse. Positive action would mean that, if job candidates are equally suitable, choosing candidates from an under-represented group to better reflect the client base would be legal. Positive action is different to positive discrimination (the favouring of people from under-represented groups even if they are less suitable for a job) which will remain unlawful.
  
  
• Gender pay and equality reports: Public bodies with over 150 employees would be required to publish the difference in pay between male and female employees and also publish ethnic minority and disability employment rates. Private sector employers with over 250 employees only have to publish male and female employee pay differences. This power would not be used before 2013 and the metrics involved would be developed by the EHRC in consultation with business, unions, and other interested parties. The Bill will also ban pay secrecy or ‘gagging’ clauses which stop employees discussing their pay with their colleagues. Disclosing your salary will still be voluntary but the Bill enforces the right to do so.
  
  
• Socio-economic and equality duties: The socio-economic duty in the Bill states that public bodies would have to demonstrate that - in making decisions about spending and service delivery - consideration is given to the socio-economic effect on all groups in society. The equality duty states that public bodies would have to consider the needs of diverse groups in the community when designing and delivering public services, so that people obtain fairer opportunities and better public services.
  
  
• Public procurement: With an annual expenditure of around £175 billion every year on goods and services (about 13 per cent of GDP), the public sector has an important opportunity to use its purchasing power to promote equality where possible. The Bill intends to clarify how public bodies can use procurement to drive equality. Over the summer the government will consult on the specific duties which will underpin the new Equality Duty. The procurement aspect will be based on current good practice in the Office of Government Commerce guidance alongside stakeholder involvement.

Example from the Equalities Office of equality-minded procurement

A local council commissioning a new library specifies that there must be baby changing facilities for both men and women with small children, and that books are available in accessible formats such as audio and Braille.

• Strengthening employment tribunals: The Bill would permit employment tribunals to make recommendations in discrimination cases which benefit the whole workforce and not just the individual who won the claim. Current legislation ties the tribunal to make a recommendation only if it benefits the individual claimant, which assumes they are still in the workplace. As 70 per cent of claimants leave the workplace, the tribunal’s hands are tied. The Bill will ensure that the employer has to make changes as long as they will benefit the whole workforce.

Example scenario of an employment tribunal benefiting the whole workforce, not just an individual

A woman brings a sex discrimination claim but ends up leaving the company. The tribunal could recommend that her employer reviews its equal opportunities policy to help prevent similar claims.

• Other action in the Bill includes a stronger role for Trade Union Equality Representatives to assist in cases.
  
  
• Action not included in the Bill but under discussion includes: use of Representative Actions for a group of individuals to use the EHRC or a Trade Union to bring a case to a tribunal and reducing the emotional and financial stress for all claimants involved; and the possibility of being able to bring a case to tribunal for multiple discrimination.

Example of multiple discrimination

Someone suffers from more than one layer of discrimination like a black woman may suffer prejudice and discrimination that is not faced by a black man or a white woman.

• Simplifying definitions and extending protections: The Bill simplifies a range of existing legislation. In particular, the definitions of direct and indirect discrimination have been extended. For example, age discrimination would be unlawful not only in the workplace, but also in the provision of products and services. Also, discrimination because of colour and nationality would be considered unlawful in the same way as racial discrimination presently is. Protection from discrimination arising from association would be extended to age, disability, sex, and gender reassignment. It would be unlawful for example, to reject a job application of someone because they care for an older or disabled person. The Bill sets out further protections for carers, private member’s club subscribers, mothers-to-be and breastfeeding mothers.

Stakeholder response to the Equality Bill

In the press release highlighting the publication of the Bill, Minister for Women and Equality Harriet Harman said, ‘The Equality Bill is part of building a strong fair future for Britain out of the downturn. That means fairness and opportunity. Especially in tougher economic times, we need to face the problems fairly and we need to look for a fairer future.’ She added that ‘If there are unequal societies marred by prejudice and discrimination, then people feel excluded, the economy does not flourish, communities feel resentful, so you don’t have a society which is at ease with itself.’

For the Conservatives, spokesperson for women Theresa May said, ’Too many British people face discrimination because of their race, gender, religion, age and background, and Conservatives want action to bring that to an end. But we're concerned that too many of the proposals in this Bill will be bureaucratic and expensive without providing real results.’ In the Commons Ms May proposed that the House declined a second reading as the Bill failed to address many concerns such as giving too much power to employment tribunals and failing to implement proposals on compulsory pay audits.

Liberal Democrat Equalities spokeswoman Lynne Featherstone responded in the Commons, saying ‘We think the Government could have taken a more radical perspective and extended the commitment to equality beyond the Bill… We Liberal Democrats are trying hard to support the measures in the Bill, but it is hard to see the legislation going through its stages without the detail that we need to be sure that we are doing the right thing. These are uncertain political times, and it causes me concern that future Ministers might be anti-equality.’

Trevor Phillips, Chair of the Equality and Human Rights Commission, welcomed the new Equality Bill, saying, ‘Overall we think it is well framed and proportionate. It will help unblock some of the systemic problems that get in the way of equality and achievement for everyone in Britain. We will of course study the detail over the coming weeks and continue to suggest amendments.’

The trade union Unite's Assistant General Secretary for Equalities, Diana Holland, said ’We welcome the publication of the Equality Bill and the recognition that the commitment to fairness and equality will not be a casualty of the global economic crisis. While it [the Bill] does not go as far as we would like in all areas, it does include positive commitments.’ Unite will press for stronger action to reduce the gender pay gap.

Michelle Mitchell, Charity Director for Age Concern and Help the Aged, said 'The Equality Bill will be gladly received by the millions of older people who suffer age discrimination. But the Bill only gives ministers the power to ban age discrimination in services if they wish. We want to see an unbreakable legal commitment to introduce new rights, across the public and private sectors.’ They are campaigning in particular for an end to a national default retirement age.

Citizens Advice Bureau responded positively to the announcement of the Bill after first proposals in 2008, adding ‘We also believe that enforcement powers still need to be strengthened beyond the measures proposed and recommend looking at a wider range of enforcement options such as the use of injunctions and increasing the role of regulators in enforcing equality laws.’