- Public, Thursday 11 June 2009 14.34 BST
The much-anticipated equality bill represents a unique opportunity to provide a coherent and consistent legislative framework to tackle inequality in society. It consolidates and harmonises more than 30 years of inconsistent developments in anti-discrimination law and contains some new and more radical measures.
Many of these developments will create new challenges for public bodies.
Tackling socio-economic disadvantage
One such measure is the new duty relating to socio-economic disadvantage. Certain public authorities will have a duty, when making strategic decisions about how to implement decisions in a way "designed to reduce the inequalities of outcome which result from socio-economic disadvantage." If this is a return to "class war" the rhetoric is more convoluted and unlikely to fit on, let alone sell, many T-shirts.
The first problem for those public bodies affected is to identify when the duty applies – when are they making "decisions of a strategic nature"? The second problem is to identify what constitutes compliance. There is no absolute obligation to eradicate socio-economic disadvantage. Rather, there is a duty to have "due regard" to the "desirability" of using strategic decisions as an opportunity to try to reduce inequalities that result from socio-economic disadvantage.
Although there are no enforcement provisions in the bill, public authorities will be vulnerable to a new angle of judicial review for non-compliance with the duty. Given the absence of any reporting obligations in the bill, it will be down to public authorities themselves to share information with each other as to how they have interpreted and applied the legislation.
New equality duty
A new streamlined public sector equality duty is due to replace existing race, disability and gender equality duties and will be extended to cover all strands of discrimination, including gender reassignment. The new duty will require public authorities, when exercising their functions, to have due regard to:
• eliminating discrimination, harassment, victimisation and any other conduct prohibited by the bill
• advancing equality of opportunity between people who share a protected characteristic and people who do not share it
• fostering good relations between people who share a protected characteristic and people who do not share it
Although some public bodies may have already tried to address all strands of discrimination, a single harmonised duty is long overdue. But there will be inevitable costs in moving from compliance with the existing regime to the new. There will also be new challenges in the areas where the different "strands" may come into conflict - most recently seen in respect of sexual orientation and certain religious beliefs.
Gender pay gap
The bill outlaws pay secrecy clauses, which stop employers trying to prevent employees discussing their pay. It is also anticipated that public bodies with more than 150 employees will be required to provide annual details of their gender pay gap (as well as their ethnic minority and disability employment rate). The exact scope and extent of the public sector reporting duties remains to be seen and consultation will take place on the details of this proposal during the summer.
No sensible person would suggest that men and women employed in like work should not be paid the same. However, equal pay legislation extends into more subjective areas where men and women are employed not on like work but on work of equal value or work rated as equivalent. Such claims are not without merit but they are much harder to identify and therefore avoid. The sheer cost of resolving equal pay issues acts as a major disincentive to searching out and correcting equal pay issues for even the most fair minded employer.
The Employment Tribunal system is already at breaking point – latest figures available from the Tribunal Service show a 65% increase in claims over two years largely due to a 263% increase in equal pay claims. Placing more pressure on public authorities to disclose pay information without any form of equal pay amnesty can only lead to more Tribunal claims with the crippling cost of funding claims for back pay.
Positive action
The provisions on positive action have attracted negative publicity, but have often been misunderstood or exaggerated. Under the bill, employers, where they feel it is appropriate, will be allowed to take under-representation into account when selecting for appointment or promotion between two equally qualified candidates. This does not permit employers to make decisions irrespective of merit or to have an automatic policy of favouring those from under-represented groups. It remains to be seen how many public authorities will use this opportunity given the obvious conflict between positive discrimination and the "fostering good relations" limb of the new equality duty.
Age discrimination
The bill extends the prohibition against age discrimination to the provision of goods, facilities, services and the exercise of public functions where people are aged 18 or over.
Timing
Most proposals are expected to come into force this autumn. Certain sections of the bill, such as the socio-economic duty and public sector equality duty, are likely to come into force in 2011. Public sector bodies should monitor how this potentially far-reaching legislation develops over the coming months.
Richard Kenyon is head of employment and pensions at Field Fisher Waterhouse LLP
