The Equality Bill

The Bill was published on 27 April 2009 and applies to England, Scotland and Wales. It is expected to receive Royal Assent in Spring 2010 and the most of the provisions are expected to come into force in October 2010. Northern Ireland has a separate body of discrimination law and will consider whether and when to take forward parallel legislation - see below.

The Bill which is currently going through Parliament identifies nine 'protected characteristics'. They are:

  • age,
  • disability,
  • gender reassignment,
  • marriage and civil partnership,
  • pregnancy and maternity,
  • race,
  • religion or belief,
  • sex,
  • sexual orientation.

Key employment-related measures in the Bill, which are subject to amendment as it progresses through Parliament, include:

  • Banning secrecy clauses in employment contracts which prevent people discussing their own pay.
  • Employers of over 250 people will have to report on their gender pay gaps from 2013 if not enough progress has been made voluntarily.
  • Public authorities with over 150 employees will be required from 2011 to publish annual details of their pay gap and ethnic minority and disability employment rates.
  • Extending positive action so that employers can take into account when selecting between two equally qualified job candidates, the underrepresentation of disadvantaged groups. This would expand existing positive action rules relating to training or encouragement to take up certain types of work and would have to be justified by an employer as a proportionate way of achieving the relevant aim.
  • Placing a new broader, single equality duty on public authorities which will extend to all protected characteristics, except marriage and civil partnership.
  • Introducing a new duty on public authorities to consider reducing socio-economic inequalities.
  • Allowing tribunals to make wider recommendations in discrimination cases, not only benefiting the individual, but also the wider workforce where the discrimination has taken place.
  • Making tribunal judgments available and searchable online so that recommendations will be made public.
  • Introducing a new definition of direct discrimination across all the protected characteristics to cover both 'associative' and 'perceived' discrimination and replaces the phrase 'on the grounds of' with the word 'because'. This will bring the law into line with Coleman v Attridge Law.
  • Extending indirect discrimination across all the protected characteristics, except pregnancy and maternity.
  • Pregnancy or maternity-related treatment would only be discriminatory if the treatment of the employee is 'unfavourable'.
  • Extending employers' liability for third party harassment beyond sexual harassment to other protected characteristics.
  • Harmonising the definition of harassment to cover 'associative' and 'perceived' harassment.
  • Harmonising the concept of justification in discrimination cases 'as a proportionate means of achieving a legitimate aim'.
  • Introducing an 'occupational requirement' defence across all protected characteristics and removing the 'genuine occupational qualifications' (GOQs) in sex, gender reassignment and race cases.
  • Addresses the Malcom decision by replacing the concept of 'disability-related discrimination' with the new concepts of indirect discrimination and 'discrimination arising from disability.'
  • The test for establishing whether a person has a disability will be widened.
  • Differences between discrimination based on nationality and colour and discrimination on other racial grounds in the Race Relations Act 1976 are removed.
  • Changing the definition of gender reassignment discrimination by removing the need for a person to be under medical supervision to come under it.
  • Allowing claims for multiple discrimination based on two, but no more, different types of discrimination. Marriage and civil partnership and pregnancy and maternity are not included.
  • Ensuring that age discrimination covers organisations providing goods, facilities and services and carrying out public services as well as in the employment sector.
  • Ensuring that public bodies promote equality through their purchasing function.

The Equality Bill completed the Report stage in the House of Commons on 2 December 2009. Amendments included:

  • the insertion of a new clause to deter employers from asking job candidates questions about their health until after they have shown that they can meet some of the non-health job criteria,
  • the drafting changes to definitions of combined discrimination, direct discrimination 'discrimination arising from disability' and harassment.

Details on the Bill, including the text and explanatory notes, are available on the Parliament website.

The Equality and Human Rights Commission (EHRC) also has information on the Bill, including details of proposed statutory and non-statutory guidance.

On 11 June 2009, a consultation document setting out policy proposals for the specific public sector equality duties was published. Consultation ended on 30 September 2009. More information, including the paper, is available on the Government Equalities Office website.

On 12 August 2009 the EHRC launched a consultation on how private sector sector and voluntary organisations with at least 250 employees can measure and report on their gender gap. Consultation ended on 28 October 2009.

 

Right to opt-out of 48-hour week remains intact

Ever since the European Working Time Directive was implemented in the UK, it has taken advantage of the employee's right to opt-out of the 48-hour maximum working week.

Employers have long incorporated the opt-out into an employee's contract of employment or as a side agreement, almost without needing to think twice. Indeed it has been such an accepted practice in the UK that press reports highlighting the prospect of employers being required to limit employees weekly hours to 48 had caused real alarm.

The instigator for change has been the European Parliament. For the last five years the Parliament has been committed to phasing out the right, principally on the basis that long working hours have a detrimental impact upon employees' health and safety. The UK has, for the most part, steadfastly resisted, conscious that this would effectively amount to handing back the right negotiated by John Major in 1993.

The judgement at EU level in the SIMAP case that time spent by doctors "on-call" counted as "working time", added impetus for retaining the status quo. The current Europe-wide economic recession has also assisted the UK in garnering increasing support for its position. One of only four member states to operate the opt-out five years ago, the UK has now been joined by a further 15 member states in support (although most limit the opt-out to specific sectors e.g. healthcare).

Various compromise solutions suggested over the years - including removing the right to incorporate the opt-out on commencement of employment, implementation of a "cooling-off" period for employees to change their minds, and a longer working hours reference period - have all proved unsuccessful.

It was not entirely surprising then that on 29 April 2009 the EU institutions finally accepted that, despite a concerted effort at conciliation, they had again failed to reach agreement on the future of the opt-out.

For the European Commission - which has acted as both proposer of draft legislation and as arbiter between the EU Parliament and Council of Ministers - the outcome is a real blow. While it may not be fatal to further development in years to come, it is very unlikely now that there will be further movement on this issue in the short or medium term.

The opt-out creates rights on both sides. For the employee it means more pay in his/her pocket and the potential for career advancement by working longer hours. For the employer it means continued freedoms to manage peaks and troughs of work and with it continued competitiveness.