Equality Act – positive discrimination

Posted on January 23, 2011 by Martin Malone

On Sunday 23 January the Daily Mail published an article under the heading “Equality Madness” in which it said that the government is spending tens of millions of pounds in order to comply with the terms of the Equality Act 2010. Examples referred to include £100,000 spent on a DEFRA report investigating how efforts to boost Britain’s coastal fish stocks would affect minority communities including the Chinese, homosexuals and Welsh speakers and a leadership course for NHS managers designed for gay, lesbian, bisexual and transsexual employees.

While the wider debate on such matters will no doubt continue, employers need to be alert to the changes which impact on workplace arrangements and potential issues arising in an employment law context.

In early December 2010 equalities minister Lynne Featherstone made a speech in which she announced that employers will be able to take “positive action” to achieve a more balanced workforce by giving jobs to people from ethnic minorities, homosexuals and people with disabilities. Companies which fail to promote a fairer deal for women could be “named and shamed”. She indicated that leading companies would be required to promote more women to board level and that there may be a requirement to disclose salaries with a view to identifying pay gaps if the information is not provided voluntarily. Details of the strategy can be viewed here.

The aspirations set out in the strategy have now crystallised in the form of implementation of new provisions in the Equality Act 2010 which will come into force on 6 April 2011. On 12 January the government published Guidance for Employers on how changes to allow “positive action” will be allowed as a result of the changes. Examples include steps to women-only development programmes with a view to increasing the number of women managers, appointing a woman ahead of a man if two candidates for a post “could do the job equally well” and appointing a Muslim candidate ahead of a non-Muslim candidate “of equal merit” if the workforce has an under-representation of Muslims in an area with a high Muslim population. These changes to current provisions will be achieved by effectively preventing the unsuccessful candidate from making a claim in such circumstances.

However, employers must “reasonably think” that people with a protected characteristic are under-represented in the workforce, or suffer a disadvantage connected to that protected characteristic. There must be some form of documented record to demonstrate that this thought process has been applied. The guidance suggests:

“Some information or evidence will be required to indicate to the employer that one of those conditions exists – but it does not need to be sophisticated statistical data or research. It may simply involve an employer looking at the profiles of their workforce and/or making enquiries of other comparable employers in the area or sector as a whole. Additionally,it could involve looking at national data such as labour force surveys for a national or local picture of the work situation for particular groups who share a protected characteristic. A decision could be based on qualitative evidence which may be obtained in various ways, for instance through discussion with workers or their representatives.”

Another important development in April is the introduction of the new “equality duty” for public sector employers and employers who rely on public sector funding. More specifically the equality duty is a duty on public bodies and others carrying out public functions. Its aim is to embed equality considerations into the day to day work of public bodies, so that they tackle discrimination and inequality and contribute to making society fairer. The general duty requires such employers to have “due regard” to the need to eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010; advance equality of opportunity between people from different groups; and foster good relations between people from different groups. Detailed guidance is available here.

newsletter – Equality Act 2010 – pay secrecy clauses

Posted on October 26, 2010 by Martin Malone

The official June 2008 White Paper on the Equality Bill said that it would “ban pay secrecy and ‘gagging’ clauses which stop employees discussing pay with their colleagues”. The idea, of course, was to remove one of the practical difficulties sometimes faced by employees (generally women) seeking to bring equal pay claims on the basis that they are paid less than employees of the other sex who have been doing the same work, work of equal value or work rated as equivalent.

As eventually enacted the Equality Act 2010 does not do what the White Paper said. The basic idea is still there but the wording means that implementation of the idea is considerably more complicated than the simple wording of the White Paper suggested it would be.

On the other hand the Equality Act goes further than the extract above from the 2008 White Paper might suggest as it covers discussion of pay with third parties as well as with colleagues. Also it makes it unlawful for an employer to victimise an employee for seeking to enforce the rights it provides.

The most important difference between the original simple proposal and the eventual enactment is that the final version applies only in so far as the employee “makes or seeks to make a relevant pay disclosure”. This is defined as a disclosure “… made for the purpose of enabling the person who makes it, or the person to whom it is made, to find out whether or to what extent there is, in relation to the work in question, a connection between pay and having (or not having)…” any of the protected characteristics covered by the Act.

It is easy to see that this definition may lead to some difficulties. A pay disclosure is “relevant” only if it is made for the specified purpose. If it was made from some other purpose the Act will apparently not apply even if the information disclosed is later used for the specified purpose.

Separately but also connected with removing difficulties in the way of employees bringing equal pay claims, the Equality Act provides specific encouragement in the shape of informal “threat” of compulsion if encouragement has not worked by 2013 for larger employers (those with 250 or more employees) to publish information about differences in pay between male and female staff.

This is an item from our October 2010 newsletter. If you are interested in subscribing to our monthly newsletter please click here.

Newsletter – Equality Act 2010 progress

Posted on July 25, 2010 by Martin Malone

Changes to the Government Equalities Office web pages have recently fuelled rumours that the new coalition government may be rethinking the timetable for introduction of the Equality Act 2010. The Act received Royal Assent on 8 April 2010, immediately before Parliament was dissolved. Major parts of it have been intended to come into force on 1 October 2010.

The timetable for implementation has been withdrawn from the GEO website. As at 25 July 2010 this now simply states that “The Government is currently considering how the different provisions will be commenced so that the Act is implemented in an effective and proportionate way. In the meantime, the Government Equalities Office continues to work on the basis of the previously announced timetable, which envisaged commencement of the Act’s core provisions in October 2010″.

So 1 October is still on the cards – but maybe not!

The previous timetable was as follows:

October 2010: Main provisions to be in force.
April 2011: Integrated public sector Equality Duty, the Socio-economic Duty and dual discrimination protection to be in force.
2012: age discrimination ban in provision of goods, facilities, services and public functions.
2013: Private and voluntary sector gender pay transparency regulations expected if employers have not already done enough

Both the Conservatives and the Lib-Dems have been generally in favour of the Act (especially in so far as it is a technical, consolidating, provision bringing together in one place a mish-mash of statutes and regulations going back to 1970). However the Conservatives indicated before the general election that if elected they would not implement the so-called “socio-economic duty” or the provision allowing (but not requiring) a degree of positive discrimination in recruitment and promotion (section 159). The coalition’s view is not yet clear.