On june 26, 2008, the government published the White Paper, Frame work for a Fairer Future - the Equality Bill. The proposals are controversial and have a number of aims, including the reduction of red tape for businesses, and the simplification and consolidation of existing anti-discrimination legislation that has developed over the last 40 years - while addressing the current shortfalls and serious inequalities that still exist.
The impact on public bodies
The bill is to replace the race, disability and gender public sector equality duties in favour of a new single Equality Duty, which will amalgamate the existing duties and also extend it to include age, sexual orientation, religion, belief and gender reassignment.
The knock-on effect of the new Equality Duty on the private sector
One of the most significantly anticipated changes is the requirement for all public sector bodies to promote equality. Government figures show that 30 per cent of private sector businesses are contracted by the public sector.
Industry equality standards?
The paper introduces the idea of creating a ‘kite mark’ for equality. The aim is to make those employers who comply with equality and anti-discrimination measures more attractive to potential employees, investors and customers.
Age discrimination - the growing importance
The government proposes making it unlawful to discriminate against someone simply because of their age when providing goods, facilities, services or carrying out public functions. The law preventing unlawful discrimination will only extend, however, to unjustifiable discrimination.
Transparency
Fundamental to the White Paper is the need for transparency. It is proposed that the public sector will be under an obligation to make organisations transparent, as an extension of the proposed Equality Duty. However, with regards to the private sector, there is no plan to impose any direct obligations. Instead, transparency is to be achieved indirectly through the use of public sector spending within the private sector and working with businesses to improve equality.
Finally, the plan is to ban the use of all secrecy clauses that prevent employees discussing their pay. The aim is to allow transparency between employees and their salaries.
Merit versus diversity - is positive discrimination the way forward?
The government believes that the only way forward to eliminate disadvantage and discrimination is to take ‘positive action’. The use of positive discrimination is, however, limited to allowing employers to take into consideration any under-representations that may exist within the organisation during the recruitment process when deciding between two equally qualified candidates.
Increasing the power held by employment tribunals - preventative measures?
The plan is to allow employment tribunals to make recommendations that affect the workforce as a whole, as opposed to merely to benefit the employee bringing the action for discrimination. The power currently held is severely limited and is often not enforceable, as the action involves an ex-employee.
The aim is also to prevent future actions against employers by altering and amending policies and procedures in place to conform.
What happens next?
The bill is due for introduction into parliament in the next parliamentary session and a more comprehensive insight into the bill is due to be published shortly. Watch this space for more details.
Katie Mear is a trainee solicitor at Sykes Anderson LLP Solicitors.