The People Bulletin

The Government's long-awaited Equality Bill is now making its way through Parliament. It is the most far-reaching discrimination legislation for many years and will have a major impact on every employer.

          The Equality Bill as published has 205 clauses and 28 schedules. It goes much further than bringing together all the discrimination strands into one statute. It makes major changes to the substance of the legislation, which will require all employers to review their personnel policies. The government has already made amendments to the original Bill and a series of consultations are being carried out as the Bill goes through Parliament.

          Equal Opportunities Review is analysing the practical implications of the Equality Bill in detail as it goes through Parliament. Here are 12 key changes to the law that the Bill is likely to make:

1) Protected characteristics: The Bill repeals almost all the existing discrimination statutes and harmonises the provisions to give a single approach to discrimination legislation. Each of the strands is now called a 'protected characteristic'. There are eight of them: age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex and sexual orientation. In addition, the Bill covers equal pay and pregnancy discrimination.

• 2) Associative and perceived discrimination: Changes to the definition of direct discrimination mean that it will be unlawful to treat someone less favourably based on an association with someone having a particular protected characteristic. The new wording clearly is broad enough to cover direct discrimination (or harassment) against carers on grounds that they are caring for a disabled person (disability) or an elderly person or a child (age). Note, though, that contrary to some suggestions, this does not confer a general right on carers not to be directly discriminated against on grounds of their caring responsibilities. There can only be a claim if the employer distinguishes between the characteristics of the person being cared for. The new definition also will outlaw discrimination based on an incorrect perception that a person has a particular protected characteristic, such as their religion or a particular sexual orientation.
• 3) Disability discrimination: The key change to the law on disability discrimination attempts to deal with the aftermath of the House of Lords' judgment in the Malcolm case: disability-related discrimination will be replaced by two new causes of action, discrimination arising from disability and indirect disability discrimination. The new provisions essentially provide that where a disabled person is subjected to detrimental treatment, the employer will have to justify this as a proportionate means of achieving a legitimate aim. Meanwhile, indirect discrimination will catch cases where a policy, such as one relating to absence control, impacts more heavily on disabled people as a whole or those with a particular disability. The employer will have to justify such a policy as well.
• 4) Gender reassignment: The main change is that a person will no longer be required to be under medical supervision to fall within the definition. Under the new definition, people who adopt a new gender role will be protected against discrimination because of that, even if they do not intend to have their gender reassigned medically.
• 5) Pregnancy discrimination: The Bill, as originally published, prohibited 'less favourable' treatment because of pregnancy and then said that 'a reference to a woman being treated less favourably is a reference to her being treated less favourably than is reasonable.' This has been changed in Parliament to remove the reasonableness test and now provides that it will unlawful to treat a woman 'unfavourably' because of pregnancy.
• 6) Multiple discrimination: The government is planning to amend the Bill to allow direct discrimination claims to be brought combining two - but only two - protected characteristics, such as that someone was treated less favourably because of the combination of being a man and a Muslim.
• 7) Positive action: A lot of publicity has been given to the Bill's positive action provisions. Where there is under-representation of those with a particular protected characteristic, an employer will have a defence to a discrimination claim if it appoints or promotes a member of the under-represented group who is 'as qualified' as the unsuccessful candidate. There is no obligation on an employer to discriminate in this way and employers who use this form of tie break will have to defend their assessment that the two candidates were, in fact, 'as qualified' as each other.
• 8) Pay secrecy: The Bill will ban pay secrecy or 'gagging' clauses which stop employees discussing their pay with colleagues. It will make being involved with a colleague in a discussion about a possible equal pay claim a 'protected act' for the purpose of the victimisation provisions.
• 9) Gender pay gap information: The Bill allows for Regulations to be made requiring private sector employers with at least 250 employees in Great Britain to publish information about the differences in pay between their male and female employees. The Equality and Human Rights Commission has been given the job of developing a set of metrics for reporting on the gender pay gap. The Government has said that this power will not be used before 2013 and that it will only be used if 'sufficient progress' on reporting has not been made.
• 10) Hypothetical comparators: Where there is no equality clause operating, a woman will be able to bring a direct sex discrimination claim that her pay would be more if she were a man. This may lead to claims where work mainly done by women has been contracted out.
• 11) Public sector duty: There will be a single public sector equality duty taking the place of the three existing statutory duties and also covering religion or belief, sexual orientation and age. Public authorities will be required to have 'due regard to' the need to eliminate unlawful discrimination, advance equality of opportunity and foster good relations.
• 12) Socioeconomic inequalities: There will be a new duty on public authorities to consider socio-economic disadvantage when taking strategic decisions about how to exercise their functions.