A new equality in the workplace - Employment Law News Autumn 2008

25 September 2008

The Government’s Equalities Office has published its proposals for the new Equality Bill.

In presenting the Bill to the House of Commons on 26 June 2008, the Equalities Minister, Harriet Harman spoke of the importance of equal pay for equal work and of the importance of the principles of equality in society as a whole. Few organisations would openly dispute such principles.

The Equality Bill is targeted at tackling discrimination in the workplace. Despite existing legislation outlawing it (there are currently nine major pieces of discrimination legislation in force and more than 2,500 pages of guidance and statutory codes of practice), evidence would suggest that inequalities still exist. Statistics indicate that on average, women working part time earn 40% less than men; that if you are disabled you are still two and a half times more likely to be out of a job than a non-disabled person; and that 62% of over 50s feel that they are turned down for a job because of their age compared with only 5% of people in their 30s.

The purpose of the Equality Bill is stated as follows: to introduce a new Equality Duty on the public sector; to end age discrimination; to require transparency; to extend the scope of positive action; and strengthen enforcement. The Bill aims to de-clutter existing legislation and write up guidance in plain English so that it is accessible to all.

In an attempt to achieve its aims a number of significant developments are expected. Certain provisions relate specifically to employers in the public sector. There are, however, measures which will affect all employers:

• The extension of positive action so that employers can take under-representation in their organisation into account when selecting two equally qualified candidates;
• Outlawing of pay secrecy clauses in employment contracts; and
• The introduction of powers in employment tribunals to make recommendations in discrimination claims that apply to the whole workforce and not just a claimant. Such recommendations may include implementing an equal opportunities policy or reviewing pay policies.

The power of employers to extend positive action to under-represented members of society in the recruitment of candidates has caused controversy. The concept, which is commonly referred to as ‘positive discrimination’, is not uncommon in many parts of the world. In South Africa, for example, the Employment Equality Act (no.55 of 1998) aims to promote equality by advancing people from designated groups and also specifically dis-advancing others.

The Equality Bill, as it currently stands, does not go as far as to oblige employers to recruit under-represented groups. It simply allows for this practice by enabling employers to take under-representation into account when recruiting.

The Government is expected to produce a more comprehensive paper on the content of the Equality Bill over the next few months. As consultation is still taking place it is unlikely that the Bill will take effect until 2009 at the earliest. In preparation for the Bill employers are encouraged to:

• Review their pay policies including the provisions for the payment of bonuses and other benefits. While very few pay structures operate so as to discriminate directly against certain groups of people, many may be dependant on the satisfaction of certain criteria which are more difficult for certain groups to achieve than others;
• Either remove any criteria which are indirectly discriminatory entirely or include in the policy provisions for adjustments for certain members of the workforce, such as, for example, employees with specific disabilities;
• Review and amend their Equal Opportunities policies; and
• Ensure that staff are familiar with and trained in Equal Opportunities.

For further information contact Amanda Okill on 01227 763939.

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