Equal to the Equality Bill?

Jo Seery provides an overview of the main changes that are being proposed to the Equality Bill, although further changes may be introduced as the Bill goes through its various parliamentary stages.

The equality bill, which the government published earlier this year, is expected to become law in England, Scotland and Wales by the end of 2010. It has two main purposes:

  • to simplify and harmonise current discrimination law
  • to extend the duties on certain public authorities.

Protected characteristics: Clause 4

The Bill protects applicants, employees, the self-employed and contract workers who have a “protected characteristic” from being subject to less favourable treatment. The characteristics are: sex, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, disability, religion or belief, sexual orientation and age.

For the first time, the Bill also provides protection from direct discrimination on combined grounds to enable workers to bring a claim of “dual discrimination” (Clause 14). For instance, a black woman who is turned down for promotion in favour of a white man could bring dual as well as separate claims for sex and race discrimination. Marriage and civil partnership and pregnancy and maternity are not covered by this provision. Neither are claims for harassment and indirect discrimination.

Direct discrimination: Clause 13

The Bill also introduces a new definition of direct discrimination which states that a person is discriminated against if they are treated less favourably “because of” a protected characteristic than someone without that characteristic.

Tribunals will still need to take into account how others who do not have the protected characteristic have actually been treated (or would be treated), but it is not clear whether the change of wording from “on grounds of” to “because of” will affect the way they decide whether someone has been subjected to less favourable treatment.

Although the Bill is intended to harmonise the different discrimination provisions, employers will still be able to justify direct age discrimination.

Associative direct discrimination

The new definition of direct discrimination also provides protection for people who are discriminated against because they are associated with a person who has a protected characteristic.

For example, this will generally provide protection for those who are discriminated against because they have caring responsibilities for, say, a disabled child. However, this does not give carers an automatic right not to be discriminated against. A carer making a claim of associative discrimination will still have to compare themselves with someone else in the same or similar circumstances. In this instance, someone who has caring responsibilities for a non-disabled child.

Perceived direct discrimination

The definition of direct discrimination is also wide enough to cover situations where someone is discriminated against because they are “perceived” to have a protected characteristic. The most obvious example is when someone is discriminated against because they are perceived to be of a certain age – for instance, too young to be promoted to a senior position. Or it could be because they are perceived to hold a particular religious view.

Indirect discrimination: Clause 19

The Bill harmonises the definition of indirect discrimination bringing indirect race and sex discrimination into line with the other strands. This occurs when an employer applies a provision, criterion or practice (commonly know as the PCP) which puts someone with a protected characteristic (except for pregnancy or maternity) at a particular disadvantage when compared with someone without that characteristic and it cannot be justified. The Bill proposes that the concept of indirect discrimination should also apply to disability.

Although the test of indirect discrimination has been harmonised, the government has failed to use the opportunity to bring the test of objective justification into line with EU law. In particular, the Bill does not require employers to show that the means of achieving the legitimate aim are “appropriate and necessary”. Instead, employers just have to show that the PCP is a proportionate means of achieving a legitimate aim.

Arguably, the objective justification test is more stringent under European law.

Victimisation: Clause 26

The Bill introduces a new definition of victimisation which says that a person is victimised if they are subjected to a detriment for doing a protected act.

This should make it easier to bring a claim because tribunals will no longer have to consider how someone who had not done a protected act would have been treated.

Harassment: Clause 25

The new definition of harassment states that a person harasses someone else if they engage in unwanted conduct related to a relevant protected characteristic (pregnancy, maternity, marriage and civil partnerships are excluded), which has the purpose or effect of violating that person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

This means that anyone subjected to harassment will not need to prove the reason for the harassment. It also means that anyone who witnesses harassment and anyone harassed because of their association with a person who has a protected characteristic (for example because their partner is disabled or their child is gay) will be protected.

That is, as long as they can show that their dignity has been violated or that it creates an offensive environment etc.

Tribunals will also have to take into account the person’s perception as well as the circumstances of the case and whether it is reasonable for the conduct to have the effect it does.

Clause 38 extends the controversial provisions of protection from harassment by a third party that apply to claims of sex harassment and harassment related to other protected characteristics (with the exception of pregnancy, maternity, marriage and civil partnerships). Under these provisions, employers are not liable unless they know that the harassment by the third party occurred on at least two other occasions. This means that an employee who complains of being subject to racist abuse by a client on one occasion, for example, will still be without protection.

Pregnancy: Clause 18

The proposal set out in the Bill that a woman would have to show that she had been treated less favorably “than was reasonable” on grounds of pregnancy or maternity, has now been amended so that a pregnant woman, or a woman on maternity leave, just has to show that she had been treated unfavourably because of her pregnancy or illness suffered as a result of it.

However, as with the current legislation, this protection will only apply during the protected period (that is, from pregnancy until she returns from maternity leave) and those who suffer a pregnancy-related illness following their return to work, such as in the case of those who have post-natal depression, will still not be protected.

Public authority duties: Clauses 1 and 145

The general public sector statutory duty to promote equality of opportunity and have due regard to the need to eliminate unlawful discrimination on the grounds of sex, race and disability has been extended to apply to religion or belief, sexual orientation and age. Clause 1 also introduces a new duty on public authorities to consider the socio-economic disadvantages of those with a particular characteristic when taking strategic decisions in the exercise of their functions.

Positive action: Clause 155

The Bill introduces provisions allowing employers to positively discriminate in recruitment and promotion in favour of anyone from an under-represented group. However, the effect of these provisions is likely to be very limited because they will only apply when an employer reasonably thinks that someone with a protected characteristic suffers a disadvantage or whose participation in the workforce is disproportionately low.

Furthermore, employers can only choose an under-represented candidate if they are “as qualified” (which is not defined) as the other candidate and they do not have a policy of treating those with a protected characteristic more favourably in recruitment and promotion. There is, though, no sanction against employers who do not select an under-represented group even when they may be “as qualified”, as the provision is entirely voluntary.

Remedy: Clause 120

New provisions under the Bill will allow tribunals to make recommendations that would apply to the workforce as a whole (as opposed to an individual employee), such as a recommendation that all managers are given race awareness training. However, as there is no sanction against employers who fail to comply with such a recommendation, this is again unlikely to have much effect.