Sunday, November 1, 2009

United Kingdom

New Equality Law 

By Sarah Gregory
Baker & McKenzie LLP

The UK Government has recently published the Equality Bill (the Bill), draft legislation with the aim of consolidating, simplifying and harmonizing all existing UK discrimination legislation. The Bill also contained a number of surprises - some of which have not been welcomed by employers.

The Bill still has to be approved by Parliament and will inevitably undergo some amendment over the next few months. However, it is anticipated that the majority of the Bill as currently drafted will make it to the statute book and will eventually be implemented in autumn 2010.

Under the Bill it will be unlawful to discriminate because of age, disability, gender reassignment, marriage or civil partnership status, pregnancy and maternity, race, religion or belief, sex and sexual orientation (the "protected characteristics"). These reflect the existing law. Despite earlier talk of specific protection because of genetic predisposition, and for parents and carers, these categories are not included.

Key Changes

Public sector equality duty. Certain public bodies will be under a specific duty, when carrying out their functions, to have regard to eliminating unlawful discrimination and advancing equality of opportunity for those with a protected characteristic. This duty will inevitably impact on procurement practice.

Gender pay gap information. A new and unexpected provision will enable the Government to order all employers with more than 250 employees to publish information about gender pay gaps. However, the Government has said that this power will not be exercised before 2013 and only then if there has been insufficient progress in employers providing such information voluntary. It remains to be seen whether this power is ever invoked, particularly if there is a change in Government.

Pay secrecy clauses. A new provision will, to a limited extent, make pay “gagging” clauses (those preventing employees from discussing their pay) unenforceable. This is designed to end secrecy about pay but will apply only to employees’ discussions about pay with colleagues in connection with potential discrimination. Pay secrecy clauses in themselves are not banned and can still be enforced if the discussion between colleagues was for some other reason. The impact of this provision is therefore much narrower than at first glance.

Positive action. There will be new (voluntary) rights for employers to take "positive action". This will apply to recruitment or promotion, where the employer “reasonably thinks” that people who share a protected characteristic are disadvantaged or that a protected group is disproportionately badly represented. The employer may only rely on this provision if A is “as qualified” as B and the employer does not already have a policy of treating people in the protected group more favourably.

This is a completely new concept. The Bill does not address how employers can assess when two people are “as qualified” as each other. Employers will be concerned that they could face discrimination claims from the unsuccessful candidate if they rely on this provision, at least in the absence of clear guidance.

Multiple Discrimination. The Bill introduces a new concept of "multiple" discrimination, enabling an employee to bring a discrimination claim on two combined grounds. This is difficult under existing legislation because the employee must show that the reason for the discriminatory conduct was the relevant protected characteristic, which may not be the case where there are two such reasons.

Comment The Bill as currently drafted is a useful codification of existing UK discrimination law and, as such, employers should already be familiar with the vast majority of the obligations it imposes. However, there will be a number of new provisions with which employers will need to become familiar - such as those relating to multiple discrimination, positive action and gender pay gaps. To assist employers, we expect further guidance to be provided on these areas in advance of the Bill being implemented.