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Home | Controversial and significant Equality Bill published

Controversial and significant Equality Bill published

29 April 2009

The long-awaited and controversial Equality Bill (the Bill) was laid before Parliament last week, and published on Monday 24 April.

Public consultations are scheduled on several of the measures outlined in this very significant piece of legislation, though it is not expected to come into force until the end of next year.

With a General Election likely in June 2010, it remains to be seen how quickly the Bill will progress and how much of it will survive.

First and foremost, the Bill will consolidate the UK's extensive, existing equality legislation into one Act, with the intention of making it easier to understand and comply with.

However, there are numerous new measures which will also be introduced, including:

• Outlawing associative discrimination and harassment (that is discrimination because someone is associated with someone with a protected characteristic) across all strands of discrimination legislation so that age, disability, sex and gender reassignment will be expressly covered by the law for the first time. This implements the European Court of Justice (ECJ) ruling in the case of Coleman v Attridge Law.
  
• Following the case of Malcolm v Lewisham Borough Council, it will be unlawful to knowingly treat a disabled person in a particular way which amounts to a detriment, unless the treatment can be justified.
  
• There will be a new duty on landlords and managers of residential properties to make reasonable adjustments for disabled tenants in respect of common areas.
  
• Private sector employers with 250 or more employees may be required to report on the gender pay gap in their organisations. However, the Government will not use its power to require this before 2013, and only then if it is felt that sufficient progress on reporting in this area has not been made.
  
• Pay secrecy clauses that prevent employees disclosing their pay details will be outlawed.
  
• Employers will be able to take positive steps (‘positive action') to recruit groups who are under-represented in their workforce where they have a choice between two candidates who are equally suitable. This is not the same as allowing positive discrimination, and will not involve a quota system to be introduced. The Equality and Human Rights Commission will publish guidance on the range of actions employers will be able to take.
  
• Age discrimination in the provision of services to those under 18 will be outlawed (such discrimination is currently not unlawful). The Government has stressed that this will not affect treatment which is beneficial or justified (e.g. priority flu vaccinations for the over 65s).
  However, concerning insurance, the Government suggests that people should be charged according to the actual risk they present and not an arbitrary assumption about how healthy people of their age usually are: it is hard to see how this could be implemented in practice.
  
• Associations such as private members clubs will not be able to discriminate against members or guests. However, the position of clubs for people with a shared characteristic will not change - the law will only require that clubs who admit a range of members have to treat them equally.
  
• The Bill expressly states that it is unlawful to force breastfeeding mothers out of public places.
  
• In discrimination claims, tribunals will be given the power to make recommendations for actions by the employer which affect the whole workforce not just the individual who brought the claim.

For the public sector

Certain aspects of the Bill only apply to the public sector.

• Age discrimination laws will be extended from the workplace to the carrying out of public functions, including health and social care, so that it will be unlawful to discriminate against anyone aged over 18 in this regard. A Government review into the practical action that is needed to tackle age discrimination in the health and social care sector will report in October this year. It is not expected that health and social care sectors will have to comply with the new law before 2012.
  
• It is proposed that public bodies with more than 150 employees will be required to publish details of their gender pay gap, and ethnic minority and disability employment rate every year. 
  
• A new Equality Duty will extend existing duties related to race, gender and disability, so that listed public bodies (and private bodies delivering a public function) will also have to consider, age, sexual orientation, religion or belief, pregnancy and maternity, and gender reassignment when designing and delivering public services. The list of public bodies to which this new duty will apply has not yet been published.
  
• There will be a new duty on Government departments, local authorities and NHS bodies to consider what action they can take to reduce so called ‘socio-economic' inequalities i.e. your family background or where you were born. This will affect how public bodies make strategic decisions about spending and service delivery.
  
• The Bill makes it clear that public bodies will be able to use the procurement process to promote equality. The Government will consult further on how public bodies should go about doing so.

Timetable

The Bill will now move through Parliament, and it is likely that amendments will be made as it goes through the committee stage.

The Bill is expected to reach the House of Lords next year, and receive Royal Assent in Spring 2010, with the majority of measures coming into force in Autumn 2010.

Certain provisions, such as the new public sector duties, will come into force later in 2011. The new provisions outlawing age discrimination in the provision of services will come into force in phases, but it is expected that these will apply to the financial services industry and others (with the exception of health and social care) by 2012.

Sources

Government press release and summary:
http://www.equalities.gov.uk/news/equality_bill.aspx

Bill and explanatory notes as introduced into Parliament:
http://services.parliament.uk/bills/2008-09/equality.html

© Shoosmiths. This page is for general information: it is not legal advice. Please read our full terms and conditions for details of the disclaimers and exclusions which apply.

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