Leading on equality

The Equality Act’s progress through Parliament was tortuous but it did finally make it through to the statute book. Charlotte Cooper examines some of the key challenges it poses for public authority employers and looks at its potential fate under the coalition government.

After much speculation, the long awaited Equality Act finally received Royal Assent on 8 April 2010. If employers felt they did not have enough to keep them busy over the next six months, they will now have to get to grips with the provisions of this new legislation, with the majority of the Act coming in to force in October 2010.

The Act aims to harmonise and simplify equality legislation, which is a significant challenge given the volume of discrimination legislation and case law built up over the last 40 years.

The Equality Act establishes some new concepts and restates others. The introduction of the phrase ‘protected characteristics’ refers to the nine protected elements of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion and belief, sex and sexual orientation.

The concepts of discrimination by association and perception will now protect individuals who are directly discriminated against or who are harassed because they are associated with someone with a protected characteristic or they are perceived to have a protected characteristic.

April 2011 will also see the introduction of ‘dual’ employment tribunal claims where disgruntled employees can complain they have been directly discriminated against due to a combination of two protected characteristics.

The public sector will play a particularly important role going forwards, as it is tasked with leading the march on equality; by promoting the equality agenda and initiating change. This responsibility presents itself in the following ways.

Equal pay and pay transparency

Gender pay inequality must first be uncovered before it can be tackled. For that reason a number of provisions are introduced to promote pay transparency. Pay secrecy clauses are rendered unenforceable so that employees are free to talk about pay without fear of reproach. The Act also allows government to force public sector employers to report on equality issues annually. It is envisaged that employers with more than 150 employees will be required to publish details revealing their gender pay gap, ethnic minority employment rate and disability employment rate.

Public sector employers should act now to ensure they have this data available from April 2011. It is important that employers also use this time to review employment processes, including recruitment, promotion, pay and grading procedures, to identify any potential problem areas. Clearly if there are equality issues identified, employers are at risk of an influx of grievances and employment tribunal claims.

Single equality duty

The Act introduces a new ‘single equality duty’ which extends beyond the existing race, disability and gender equality duties to also include age, gender reassignment, pregnancy and maternity, religion or belief and sexual orientation.

The new duty will require all public bodies as of April 2011 to have “due regard” to the need to eliminate discrimination, harassment and victimisation, advance equality of opportunity and foster good relations between persons who share one of the “relevant protected characteristics” and also persons who do not share it.

Public authorities will therefore need to update their current race, disability and gender equality schemes and replace them with a single equality scheme covering these eight areas of discrimination law.

In making decisions about funding and the way the community is served, public authorities will need to give consideration to the diversity of staff as well as service users and stakeholders.

The first step will be for authorities to identify where inequalities exist. It is likely that the lack of statistical data currently available to employers concerning staff diversity, particularly in respect of sexual orientation and gender reassignment will make this difficult.

The initial challenge over the next 12 months will therefore be capturing diversity data, particularly in the areas of recruitment, promotion, pay and benefits and flexible working which will then assist compliance with the ‘single equality duty’ obligations.

Socio-economic duty

A new addition to the equality agenda is the socio-economic duty. Appearing at clause 1 of this extensive piece of legislation, social inequality was high up on the former government’s agenda.

The Act requires a public authority, when making strategic decisions, to have due regard to the desirability of reducing inequality resulting from socio-economic disadvantage. Albeit the nearest thing to ‘class discrimination’ in the UK, we are not there yet. There is no private right of action against a failure to comply with this duty. The government may issue further guidance in due course and we may see a reporting requirement introduced.

Procurement

The Act also tackles the important issue surrounding public sector procurement. Around 30% of British companies are involved in public sector contracts worth a total of £175 billion. The government wishes to ensure that businesses bidding for these contracts are more transparent in relation to equality issues.

Public authorities may now seek disclosure of extensive equality information as part of the tendering process and impose equality related contract conditions in service level agreements. The information requested may include details of staff training, the implementation of equality policies and processes and the disclosure of data concerning any gender pay gap and employment rates for ethnic minorities and disabled employees.

By this new legislation public bodies are thus made the gatekeepers of equality through their procurement processes, awarding contracts to businesses which have good track-records on equality, even if the deal is ultimately more expensive.

Recruitment

Employers should also be aware of the changes affecting recruitment. The recruitment stage is viewed as a barrier for certain protected groups, in particular disabled candidates. To help tackle this, two measures have been introduced.

Foremost, pre-employment questions about a candidate’s health are prohibited, although there are some exceptions. It is lawful to ask questions to determine the following:

• to establish whether the applicant can carry out a function which is intrinsic to the job being applied for
• to establish whether there is a duty to make reasonable adjustments
• monitoring diversity in the range of persons applying for work
• taking positive action in respect of that candidate, and
• if there is a requirement to have a disability to undertake that work.

Caution must therefore be exercised in asking such questions, which should be planned in advance to ensure they fall within the exceptions. A careful note of the interview should also be kept, particularly in circumstances where the candidate is unsuccessful and a disability discrimination claim may follow.

‘Positive action’ is the second measure to improve equality at the recruitment and promotion stages. Employers may choose to treat a person more favourably if they have a protected characteristic and where persons with that characteristic are underrepresented in the work place. This allows an employer to select a candidate because of, for example, their race when faced with a choice between two candidates that are equally qualified.

Employers relying on this provision are advised to keep a note of the basis their decision to choose one candidate over another.

The Act’s survival

Following the formation of the new coalition government and the joining of two opposing parties, there is some doubt regarding the future of the Equality Act.

The provisions that raised most concern were those of positive action and gender pay gap reporting measures. In relation to positive action, the Conservative party complained that the language of the provision was unclear and placed too high a burden on employers to decide whether individuals are “as qualified” as each other.

With regards to the reporting of gender pay statistics, the party indicated that it would impose the reporting requirements on those employers that had been found to have discriminated on the grounds of gender as opposed to a mandatory reporting requirement.

In stark contrast, the Liberal Democrats fought to push further on equal pay, by calling for mandatory pay audits to be introduced. The party also argued for further measures including representative actions for equal pay claims by trade unions for groups of claimants.

Time will tell which elements of the Act will survive.

Charlotte Cooper is a partner at Everatt & Co. She can be contacted on 01386 769179 and via This email address is being protected from spambots. You need JavaScript enabled to view it..