Parliamentary time and elections permitting the Government has confirmed in the Queens Speech that it intends to implement the Equality Bill in the autumn of 2010. The current nine different pieces of discrimination legislation will be condensed into one new Equality Bill covering all strands of discrimination.
Current discrimination legislation has been developed over a long period of time and has become increasingly complex and difficult to use, creating barriers to equal treatment. The process of streamlining and simplifying is thought to strengthen the legislation by making it easier for employees to know their rights, hence increasing the pressure on employers to comply - improving the outcomes for those experiencing disadvantage through discrimination.
The protected characteristics under the new Equality Bill will remain similar, age, disability, marriage & civil partnership, race, religion or belief, sex & sexual orientation including gender reassignment. Direct discrimination will be defined as treating someone less favourably because of a protected characteristic. The requirement for a comparator will be kept, emphasising the fact that discrimination is about equal rather than fair treatment. There will however be one important exception to this rule - to avoid claims of "discrimination arising from disability"; employers will have to treat employees with disabilities more favourably to reduce some of the disadvantages they experience because of their disability.
Concerning indirect discrimination, unlike today, the same definitions and test will be used for all protected characteristics. When a “provision, criterion or practice” which is applied to all puts those having a particular protected characteristic at a “particular disadvantage” and this can not be “objectively justified” this person is being discriminated against. This test is supposed to be easier to use and less statistically dependent compared with the test “considerably smaller proportion” used today in sex and race discrimination which will be abolished.
The New Equality Bill will create increased levels of transparency by promoting - possibly legislating - gender pay gap reports for companies with more than 250 employees. The Bill will also prohibit contractual secrecy clauses making salary discussions among employees a protected act. Other important changes are that the Bill will (most likely) make it possible for employees to make dual claims, make employers liable for third party harassment, as well as make it possible for tribunals to make general recommendations affecting the whole workforce rather than only the claimant.
The objective of the Bill is to make discrimination legislation easier to understand, making it easier to use and thereby increasing equality. The law in itself has not been significantly changed, rather tweaked and harmonised between the different strands of discrimination and expressed in more straightforward wording. The question is if the new Equality Bill really will make it easier for employers to comply? The simplification of very complex legal issues leaves many grey areas and high levels of uncertainty that can only be clarified through case law. This will be a lengthy process and meanwhile employers are advised to carefully follow advice on equality issues given by ACAS and UK Council for Access and Equality (www.UKCAE.co.uk ) as well as seeking professional advice in complex issues.
