What the new Equality Bill means for employers

Money Talk
By Amy Richardson
Adams & Remers solicitors

Beefeater, Moira Cameron, was at the centre of a recent harassment case

It has been hailed as a landmark move to harmonise discrimination legislation and to strengthen the law to support progress on equality.

But what will the Equality Bill mean in practice for employers and employees?

The bill is going to have a big impact on employers and they should ensure that their equal opportunity and recruitment policies are compliant when the new legislation comes into force.

The new law is likely to have a greater impact on smaller organisations as they are less likely to have comprehensive anti-discrimination and harassment policies already in place.

Whilst this will mean extra work, once in force it should ensure that both employers and employees benefit from a fairer and more transparent workplace.

Wide ranging

The bill will require organisations of all sizes and types to promote equality and avoid discrimination in the workplace.

It is hoped that increased transparency in pay will narrow the gap further

It will also tackle the pay gap between men and women.

The new law will consolidate and clarify the existing discrimination legislation concerning sex, race, disability, sexual orientation, religion or belief and age, and seeks to adopt a single approach where appropriate.

It also contains a number of important changes to the law.

Here are the key measures.

Banning pay secrecy

Many contracts of employment contain clauses which prevent employees from discussing their pay or bonuses.

The law will make these types of clauses unlawful, and it will protect an individual from victimisation if action is taken against them for discussing their pay with their colleagues.

In seeking to justify the ban, the Equalities Minister, Harriet Harman, said that official figures show that whilst the gender pay gap has been narrowing over recent years, it still remains that for every pound a man earns, a woman earns just 87 pence.

Female part-time workers also still earn as much as 40% less than their full-time male counterparts.

It is hoped that increased transparency in pay will narrow the gap further.

Harassment definition extended

Harassment will have the same definition across all areas of discrimination.

Amy Richardson of Adams & Remers

The focus will be on preventing "unwanted conduct which has the purpose or effect of violating a person's dignity or creating an intimidating or hostile environment".

It covers conduct which is "related to" a protected characteristic - a protected characteristic being sex, race, religious belief etc.

This means that there is no need for the particular employee's characteristics to be the reason for the unwanted conduct in order to trigger liability.

It could be the employee's association with someone with the protected characteristic, for example someone who is harassed because a relative of theirs is homosexual.

Protection from harassment has been further extended so that the employer can be held liable for harassment by a third party, such as a customer or contractor.

This will apply if harassment has occurred on at least two earlier occasions and the employer has failed to take reasonably practicable steps to stop it.

Information and positive discrimination

Private sector employers will be required to publish information about differences in pay between male and female employees.

This will apply to employers with at least 250 employees, but the power will not be used before April 2013.

The bill also contains some provision for positive discrimination in recruitment and promotion.

An employer will be able to take a protected characteristic into account when deciding who to recruit or promote, where people having the protected characteristic are at a disadvantage or are under-represented.

This can only be done where the candidates are equally qualified.

The clause does not allow employers to have a policy, of treating people who have a protected characteristic more favourably than others, in other circumstances.

Wider powers for Employment Tribunals

At present, if an employment tribunal upholds a claim of discrimination, harassment or equal pay, it is only able to make awards of financial compensation.

Private sector employers should not assume that this will not affect them

Under the new bill, tribunals will be able to make recommendations that benefit the whole workforce, rather than just applying a remedy to the individual that brought the claim.

For example it could order that an organisation revises its equal opportunities policy, or provides training for its managers.

Public sector equality

Public sector employers are already expected to have in place policies dealing with their duties in relation to race, gender and disability.

These policies require "due regard" to be given to the need to promote equality, and contain specific obligations to carry out ethnic monitoring and produce written equality schemes and equality impact assessments.

The bill will replace these current duties with a unified duty that will cover all discrimination strands.

Private sector employers should not assume that this will not affect them.

Any organisation that contracts with public sector bodies may see a knock-on effect, with the public sector body taking the private organisation's equality policy into account when deciding to whom they will award the contract.

Time table

The long-awaited bill follows more than four years of reviews, discussions and consultations.

It passed through the House of Commons and is currently being read in the House of Lords.

It is expected to receive Royal Assent in spring 2010 and to come into force in October 2010, with some public sector provisions being delayed until April 2011.

The new law will have effect in England, Wales and Scotland.

The opinions expressed are those of the author and are not held by the BBC unless specifically stated. The material is for general information only and does not constitute investment, tax, legal or other form of advice. You should not rely on this information to make (or refrain from making) any decisions. Always obtain independent, professional advice for your own particular situation.