The Equality Bill is as long as it is long-awaited. Finally published on 27 April, and over 500 pages long, it replaces more than 100 existing discrimination measures with one single piece of legislation. The Bill is likely to impose significant additional burdens on employers – in particular in re-issuing policies and training employees – assuming it becomes law (as proposed) in 2010.
In order to harmonise existing discrimination law, the Bill introduces the concept of ‘protected characteristics’: sex, race, disability, age, sexual orientation, religion/belief, gender reassignment, marriage and civil partnership, and pregnancy/maternity. There are also new definitions of direct and indirect discrimination, and new disability discrimination provisions.
Despite widespread publicity, the Bill does not actually ‘ban’ pay secrecy clauses – it makes them unenforceable where discussion about pay relates to pay discrimination (a relevant pay discussion). It is unlikely that this will impact on the majority of employers; a recent survey carried out among senior HR professionals and business leaders by DLA Piper revealed that only 6% of employers had such clauses in their contracts. However, being involved in a relevant pay discussion will also be treated as a protected act for the purposes of victimisation, which will prevent employers taking disciplinary action against employees over pay discussions even when there is no pay secrecy clause.
The Bill contains a power to make regulations requiring private sector employers with at least 250 employees to publish information about the differences in pay between their male and female employees. However, the government will not introduce these regulations before April 2013, and will only do so if voluntary reporting has not progressed sufficiently. DLA Piper's research showed that only 39% of organisations had carried out a review of differences in pay between men and women. Now may be the time to carry out an audit, as employers have four years to address any differences in pay before the reporting duty is introduced. Businesses involved in tendering for contracts to supply public bodies have an additional incentive to get their house in order: the Bill also permits regulations that would impose specific obligations on public bodies to use their procurement functions to better meet the requirements of public sector equality duties. This could lead to public sector bodies requiring businesses that tender for work to demonstrate their commitment to diversity and equality.
As expected, the Bill allows employers to take positive action in recruitment and promotion. This means that an employer can take a protected characteristic into consideration when deciding who to recruit or promote, where people having the protected characteristic are at a disadvantage or under-represented. It had been expected that positive discrimination would focus on recruitment; the reference to promotion significantly increases the range of employees to whom positive action can be applied. However, there is no requirement to take positive action and for many employers this will be an unattractive and potentially confusing option.
Sandra Wallace is an employment, pensions and benefits partner at law firm DLA Piper.