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.