Equal to the task

The Equality Bill has wide-ranging implications for local authorities. Lee McBride highlights its key provisions.

The Equality Bill has two key aims:

1.Harmonisation of the various strands of discrimination law; and

2.Strengthening the law on discrimination to support progress on equality.

When does the Bill come into force?

The Bill was introduced into the House of Commons on 24 April 2009, together with a White Paper which set out its aims. Subject to approval of both the Houses of Parliament, the Equality Bill is expected to receive Royal Assent in spring 2010.  However, it is worth bearing in mind that a general election must be held by May 2010 and this may impact upon the implementation of the Bill.

So what does the Bill mean for local authorities?

Socio – Economic Duty

The Bill will place local authorities under a new duty to have due regard to “socio-economic inequalities” whenever they make decisions of a strategic nature about how to exercise their functions, including spending and service delivery.

The White Paper explains how the new ‘duty’ will operate in practice by giving the example of a local education authority, which: “could evaluate the schools application process and find that some parents in social housing were having difficulty navigating the system and getting their child a place at school. The authority could then target support at people living on housing estates to help them with the application process”.

The ‘duty’ will not be enforceable by the Equality and Human Rights Commission and nor will individuals be able to claim damages for a failure to comply with this duty.

However, individuals will be able to bring judicial review proceedings against a local authority if they believe that the local authority has failed to consider the socio-economic disadvantage when taking strategic decisions.

Single Public Sector Equality Duty

The Equality Bill will replace the three separate public sector race, gender and disability equality duties with a single unified duty from 2011.

The new unified duty will cover all of the discrimination strands ie disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex, sexual orientation and age (but only in respect of people over 18 years). The new unified duty will not apply to marriage and civil partnership.

A failure by a local authority to have due regard to the unified duty will be enforceable by way of judicial review, as is currently the case. In reality, the commercial imperative to adhere to this duty is likely to be more persuasive in respect of compliance, and in particular in relation to procurement.

Procurement

In the White Paper which accompanied the Bill, the government stated that the Bill will make it clear that public bodies can use procurement to drive equality.

Local authorities should therefore consider introducing standard contract terms requiring their suppliers to comply with equality legislation and, where appropriate, assess this as part of the tender.

For example, contracts for work such as plumbing, carpenters and plasterers – trades in which women are under-represented nationally – could include a condition that the contractor runs a positive action programme to train women in these skills.

Equal Pay

Under the Equal Pay Act 1970, an employer can pay a man more than a woman (or vice versa) for doing equal work, but only if it can prove that the variation in pay is due to a genuine material factor that is not the difference of sex (commonly referred to as the ‘the genuine material factor (GMF) defence’).

Since the Equal Pay Act came into force in 1975, there has been conflicting case law about how the GMF defence can be applied. The government intends to use the Equality Bill to clarify this, with clause 66 of the Bill containing new provisions including a definition of indirect pay discrimination which, unlike direct pay discrimination, can be objectively justified by the employer.

Following the influx of claims brought as a result of the local authority ‘Single Status’ job evaluation scheme, the Bill states that “the long-term objective of reducing inequality between men's and women's terms of work is always to be regarded as a legitimate aim".

Whilst this merely confirms the current case law position, the more controversial issue is whether pay protection is a proportionate means of achieving that legitimate aim where it disproportionately benefits men rather than women.

Equality Reports

To help combat the gender pay gap, the government wishes to promote transparency by requiring large employers to publish information regarding employees’ pay. The government has committed not to use this power before 2013.

However, the position regarding local authorities is different. The government envisages that from April 2011, local authorities with more than 150 employees will be required to report annually on their gender pay gap, ethnic minority employment rate, and disability employment rate.

Summary

It is clear that if the Equality Bill makes it onto the statue book in 2010, it will have a significant impact on local authorities. Local authorities should therefore start making plans for its introduction as soon as possible.

Lee Rogers is an associate at Weightmans LLP