An overview of the government’s proposals for a single equality bill

Earlier this year, the government issued a consultation paper proposing a single equality bill, a commitment first made in its 2005 election manifesto. The consultation period closed at the beginning of September 2007.

Caroline Underhill, head of Thompsons’ Equal Pay Unit, takes a look at some of the issues raised in the document.

Background

The law against discrimination has developed piecemeal since 1970, but over the last few years, it has expanded exponentially. In addition to sex, race and disability, there is now legislation outlawing discrimination on the grounds of sexual orientation, religion and belief as well as age.

Faced with the prospect of having six different commissions to cover each area of law, the government decided a few years ago to create a single body to oversee them all – the Commission for Equality and Human Rights (CEHR). This brand new single equality body starts work in October 2007.

At the same time, it became clear that many trade unions, lawyers and equality practitioners wanted a wholesale review of what had become a complicated mishmash of discrimination law. The idea of a single equality law started to take shape.

Does it make sense?

There is no doubt that it makes sense to have one single equality law. At the moment, UK equality legislation is both complex and fragmented, with nine different statutes and regulations.

Add to that all the different European directives and you have, as the government finally agreed, a compelling case for both simplifying and standardising the law to make it easier for everyone (including lawyers) to understand.

However, there is no guarantee that will be the outcome, given the all too obvious emphasis in the government’s consultation paper on keeping the regulatory burden on employers to a minimum.

What is being proposed?

The government has said that it wants to take the opportunity of introducing a single Act to both simplify existing law and to extend it. Bearing in mind that the structure of our society has changed in many ways since the 1970s, this is not easy.

As might be expected, the proposals in the paper are detailed and extensive as the law in this area is so complex. The Act will not just cover employment, but also service provision, housing and public services, functions and duties.

The following is not intended as a full summary of the proposals, but they include:

• One definition of indirect discrimination for all strands except disability discrimination.
• One genuine occupational requirement test except for disability.
• A consistent and simplified definition of victimisation. The emphasis will be on the cause of the treatment rather than needing a comparator (actual or hypothetical) who has been treated differently.
• The possibility of extending the prohibition of harassment in service provision and public functions to all strands of discrimination.
What does it propose for the public sector?
The following are some of the more significant suggestions:
• At the moment a lot of public bodies have to write three equality plans – race, gender and disability. The government proposes to reduce the three plans into a single duty.
• The government proposes to give a clear steer to public bodies about the purpose of a single equality duty, which they must use as a foundation when deciding what action to take.
• Public bodies should have to identify the gender, race and disability issues that they intend to focus on in their equality plan and the government proposes that they should have to do this every three years.
• The government is proposing that, in some instances, public bodies should have more freedom about how to meet their obligations than just through writing equality plans, although they would have to consult their stakeholders when doing so.
• There is also a proposal about whether the obligation to write equality plans should be extended to include sexual orientation, religion or belief and age.
• In terms of enforcement and inspection, the government proposes that the CEHR works with other organisations (such as the social care inspectorate) to find out where there are problems.

What does it propose for the private sector?

It is disappointing (although predictable) that the emphasis in this section is on voluntarism. The government makes no suggestions as to how the private sector should be required to enforce equality and specifically rejects the idea of a statutory requirement on employers to monitor and report on their equality practice. This means that very little is likely to change.

The proposals include:

• Introducing a light touch “equality check tool” to help employers identify problems “quickly and cheaply” so that they can then consider what action to take.
• Introducing a voluntary “equality standard” scheme that businesses could sign up to.

What does it say about equal pay?

Although the consultation document devotes an entire section to equal pay, it starts from the premise that “the evidence does not support legislation mandating equal pay reviews.”

Instead, the paper focuses its attention on “promoting the spread of good practice which improves gender equality in both private and public sector organisations, such as getting more women into senior management or improving rates of return from maternity leave.” Where have we heard that before?

The government proposes that equal pay (where the difference is due to sex discrimination as opposed to say race, disability or age) should be incorporated into a new Equality Act, but that the current differences between claims relating to contractual and non-contractual issues should be retained. This means that the current difference between the Equal Pay Act and the Sex Discrimination Act will be retained.

What does it say about resolving disputes?

The government wants to resolve as many disputes as possible outside the court and tribunal systems. Having failed dismally with the statutory procedure it put in place in 2004 to promote the informal resolution of disputes, it now suggests the following in relation to discrimination disputes:

• That parties should be encouraged to use alternative dispute resolution processes as these will save time and money, including greater use of “ombudsmen”.
• That special courts could be set up to deal with disputes relating to goods and services.

What might an Equality Act look like?

Given the proposals made in the document (and in particular the government’s refusal to countenance compulsory measures for employers), an Equality Act is likely to retain many of the complexities of the current law.

At the very least, however, the consultation provided an opportunity for everyone interested in combating discrimination to express their views as part of this extensive review of discrimination law.