Briefing by Thompsons Solicitors - July 2008

The Equality Bill, announced by Minister for Women and Equality Harriet Harman on 26 June, is not, as some sections of the media would have it, about legalising discrimination against white men.

It is a measure aimed at tackling the deep rooted inequalities at work that prevail in all sectors of the economy.

Importantly for trade unionists, the Bill pledges to strengthen the role of union equality reps. And it aims to “de-clutter” the UK’s complex discrimination laws, making the law in this area both easier to understand and to apply.

The main proposals:

De-cluttering the law and the new Equality Duty on public bodies

Lawyers, union officials and union lay representatives alike find the UK’s discrimination laws incredibly complex. There are different laws and duties on employers covering race, disability and gender.

The various bits of legislation, rules, regulations and guidelines will be streamlined into a more simple Equality Duty on public bodies extended to cover age, religion and belief, sexual orientation and gender reassignment.

The duty will require public bodies to consider how their policies, practices and services will affect different groups.

How this will work in practice is not clear, but the government has pledged to consult with relevant organisations.

Letting workers talk about their pay

The Bill will ban secrecy clauses in public sector organisations which prevent people discussing their pay with colleagues. Secrecy clauses, often imposed on staff by employers, make it more difficult for trade unions and the government to tackle pay inequality.

This does not mean workers will be forced to tell their colleagues how much they earn.

But preventing workers discussing their salaries perpetuates unequal pay because individuals, and more often than not lower paid women, are kept in the dark about what others are paid.

It is much more difficult for trade unions to negotiate equal pay or to pursue equal pay claims at employment tribunals if employees have to keep what they earn secret.

Positive action

This is the proposal that has met with the most hostile response from the media. It will allow, not force, employers to take under-representation of certain groups within their workforce, such as women, ethnic minorities and disabled people, into account in the recruitment process.

The law does not currently allow employers to consider under-representation when choosing between two equally qualified candidates. This means that no matter how committed an employer is to making its workforce more representative of the wider community, it cannot legally have a recruitment policy which includes using under-representation as a method of selection.

This new right for employers will not allow them to deliberately choose a woman or ethnic minority candidate over a white man even though they may be less well qualified and suitable for the post.

If the result of allowing positive action is more diverse workforces that better reflect the community and society in which they are based and for which they provide goods and services, then the effect should be of benefit to everyone.

Giving employment tribunals more powers to end discrimination

Employment tribunals are currently restricted in what sort of recommendations they can make about an employer’s policies and practices. Generally the claimant needs to still be working for the employer and so would benefit directly from the advice the tribunal gives.

The Equality Bill will allow tribunals to make wider recommendations, such as that the employer introduces an equal opportunities policy or reviews its pay policies.

The Equality Bill’s proposal will mean that whether or not the individual claimant had since left the organisation, those still employed there should benefit from the outcome of the ET.

Recommendations made by a tribunal should assist employers in improving their employment practices and avoiding further tribunal claims. If they do not, and they do face another claim, the tribunal is likely to take a tougher line with them next time.

Representative actions

The government pledges to consider the case for introducing representative actions in discrimination cases and to consult on any proposals. Representative actions would enable trade unions to pursue cases on behalf of a group of individuals in a single claim.

Where the Bill needs strengthening

  • Equality reps: The Bill pledges to support and strengthen the role of trade union equality reps. It does not however propose to put the role of equality reps onto a statutory footing, as many unions have called for.
  • Equal pay: There is no proposal to further fund equal pay and ensure that local authorities face up to their legal responsibilities.
  • Private sector: As yet the proposals in the Bill only extend to the public sector. To make a real difference they need to apply to the private sector too, where inequalities are even more stark. In the finance sector, for example, the gender pay gap is 41.5% compared to the national figure of 12.6%.

The proposed kite mark scheme for private sector employers who are transparent about reporting their progress on equality is a good start. But this falls short of equality audits. A commitment to introducing the equal pay job evaluation audits carried out in the Civil Service since 2003 across the public and private sector would be welcome.

However, it is clear in the Bill that private sector employers with an interest in winning public sector contracts will have little choice but to be open about equality issues and to be able to show what they are doing to address them.