Supporting Change • Developing People • Promoting Ability

Client Briefing on the Equality Bill

This short briefing and frequently asked questions provides an overview of the main changes proposed by the Government's Equality Bill, introduced to Parliament on Friday 24 April 2009.

Please note that the briefing is for information only and is not intended as an interpretation of law.

The Bill and Explanatory Notes can be found at: www.services.parliament.uk/bills/2008-09/equality.html

The Equality and Human Rights Commission's consultation on the Bill's guidance can be found at: http://cecollect.com/vf/7530r9491Z7166F61c99

1. Socio-economic duty

The government has decided to require public authorities to consider socio-economic disadvantage in the planning and monitoring of the services they provide. This duty will build on the existing duties of public authorities to promote disability, gender and race equality in what they do.

2. Age discrimination

The Bill includes measures to ensure that providers of goods, facilities, and services, such as high street shops, sports clubs, holiday resorts and health centres, treat older people fairly and equally. The Bill does not abolish mandatory retirement ages.

Currently, it is legal, for example, for insurance companies to increase premiums or refuse to quote based on age. This means that some people find it difficult or impossible to travel abroad. Older people are also denied access to some health services. Additionally, the new law should encourage employers to consider people's abilities rather than simply their date of birth.
Following the publication of the Bill, the Equality and Human Rights Commission will produce statutory and non-statutory guidance on the implementation of the new age goods, facilities and services provisions.

3. Public sector equality duty

Under the current public sector duties, public authorities are required to consider disability, gender and race issues when designing their policies and services. However, they don't legally have to take into account the specific needs of other groups, such as older people or those with different religious backgrounds.

The Bill will introduce a single public sector equality duty covering all the different types of inequality people may face. It is also likely that there will be an increased focus on results - such as health services that reflect the health trends associated with different ethnic groups in their areas - rather than on process.

Simplifying the currently complex legislation into one single duty should help public bodies understand their obligations and at the same time make it easier for the people they serve to ensure they are treated fairly. A coherent approach to equality and effective equality impact assessments should also save money.

4. Gender pay gap

The Bill lifts gagging clauses and allows colleagues to discuss their pay. Statistics show that the gap is wider in the private sector than in the public (a full-time gap of 21.7 per cent as compared to 13.8 per cent) and evidence from 2008 shows that far fewer private than public sector employers are taking action to close the gender pay gap by carrying out equal pay reviews (23 per as compared to 43 per cent).

5. Procurement

The public sector spends billions of pounds every year on procurement. The Bill includes measures which will enable public bodies to choose suppliers who treat their workers fairly and equally, as well as delivering value for money for the taxpayer.

6. Enforcement and clarifying the law

The incremental way in which discrimination laws have developed has resulted in unnecessary complexity and has left some gaps where protected grounds are not afforded similar protection under the law.

The Government proposes that the Bill should bring together the three existing equality duties into a single public sector equality duty, which should also be extended to cover sexual orientation, religion and belief, as well as clarifying and extending the coverage for gender reassignment. Clarifying these laws will help businesses and public services avoid confusion, and provide consistency across different groups rather than risk the growth of a 'hierarchy of rights'.

The extent to which the Bill will preserve the distinctive nature of disability discrimination is not yet clear. The original purpose of the Disability Discrimination Act (DDA) was affected following a recent House of Lords judgment. In the Malcolm vs Lewisham Council case, a council tenant with schizophrenia was evicted for sub-letting his home without seeking prior permission from the council. Mr Malcolm's solicitors argued that the subletting was caused by his schizophrenia, which involved a susceptibility to distortions in thinking. The council was therefore seeking possession for a reason related to his disability, in breach of the DDA.

The Lords decided that there was no breach of the DDA, as his case should be treated in the same way as any other tenant who had sublet, regardless of his disability.

The Government pledged to address the gap left by the Malcolm judgment (reducing the opportunity to claim disability-related discrimination) and consulted on its proposals in late 2008.

The Bill should also help carers by ensuring that they do not suffer the type of 'discrimination by association' experienced by Sharon Coleman. Ms Coleman, who has a disabled son, brought a case claiming she was forced to resign from her job as a legal secretary after being harassed by her employers and refused flexible working, which was allowed to other employees. The European Court of Justice (ECJ) has found that treating employees less favourably because of their caring responsibilities for disabled relatives is unlawful and that 'disability discrimination by association' should apply to British law.

7. Positive action

The law around positive action is confusing with many well-intentioned employers fearful of breaking anti-discrimination legislation and confusing positive action with positive discrimination, which is unlawful. The Equality Bill clarifies the existing legislation and promotes positive action.

Positive action would allow employers choosing between two equally-qualified candidates, if they wished, to select the successful candidate on the grounds that they were from an under-represented or disadvantaged group. In other words, the fact that a candidate was from one of these groups could lawfully be considered as a 'tipping factor' in a tie-break situation. This would be a voluntary, rather than mandatory, option.

Positive discrimination, on the other hand, means that applicants from particular groups receive preferential treatment in the recruitment process. A less well-qualified applicant might be given a job over a better-qualified rival, solely because they come from an under-represented group. This would remain unlawful.

8. General guidance on the Bill

In time, the Equality and Human Rights Commission will produce statutory codes of practice and other information to accompany the Equality Act. These will cover employment, goods facilities services, education and the public sector equality duty. In addition, it will produce a suite of non-statutory guidance.

The non-statutory guidance on key provisions in the Act will be available in July 2010, in line with Cabinet Office Guidelines requiring guidance to be available three months prior to implementation. Statutory Codes of Practice will be available to be laid before parliament in Late 2010, in time for implementation of key provisions in Early 2011.

Frequently asked questions

How long will it take to become law?

The Bill should be passed before May 2010 and most of it will come into force in early 2011. It is possible that the provisions on age discrimination in goods, facilities and services will not come into force until 2012.

What about our existing schemes?

Because the new provisions relating to a single equality duty and the introduction of a socio-economic component won't come into force for around two years, public authorities should continue with existing plans in relation to the promotion of equality and the production and review of equality schemes.

Authorities that are considering not just disability, gender and race in their schemes but also age, religion or belief and sexual orientation will be well-placed to meet the revised requirements. Government Ministers have indicated that there will be no dilution to the Disability Equality Duty and it is expected that the new Duty should see a 'levelling up' of requirements.

Will we still need to do equality impact assessments?

Specific requirements of the Equality Duty will be drawn up following consultation with the Equality and Human Rights Commission. It is possible that there may be some changes to what is required in relation to equality impact assessments, including consideration of the wider equality groups and socio-economic background. However, these changes will not come in for two years, so existing arrangements should not be altered. GCL believes that authorities should be conducting EIAs not just because they are a matter of law but because they can bring benefits to organisations. We are sole providers of EIA training to the Equality and Human Rights Commission and a variety of other bodies.

So positive discrimination is still unlawful?

Yes, positive action is currently legal but the Equality Bill will clarify this. Positive discrimination will remain unlawful.

How GCL supports clients to meet their public sector equality duties

Goss Consultancy Ltd (GCL) has direct experience of supporting public bodies to meet the requirements of the public sector equality duties

Goss Consultancy can help public bodies to:-

carry out effective equality impact assessments
devise and manage effective strategies for engaging with diverse groups
assess and review activities already in place to promote equality and diversity
collect and review evidence and prioritise work to be undertaken
draft and review public sector equality schemes
review and, where appropriate, provide training promoting equality and diversity (GCL are sole providers of equality impact assessment training to the Equality and Human Rights Commission)
develop effective and appropriate partnerships with other stakeholders to promote equality and diversity.

Further support

For more information on how we can support you, please contact us using the handy form below: