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Positive action
There can often be a thin line between positive action (certain types of which are currently allowed) and positive discrimination. At the moment, positive discrimination is not lawful in the UK. EU law also restricts the scope of positive discrimination and limits what can be permitted under UK legislation.
The Equality Bill will extend the current positive action regime. Employers will be able to consider, when selecting between two equally qualified candidates, under-representation of disadvantaged groups and appoint the under-represented person. This measure will not be a compulsory requirement - it will be available to all employers to use voluntarily.
Pay
Although the main obligation to report on gender pay and other inequalities will be on public bodies through a new streamlined public sector equality duty covering all strands of discrimination, the proposals in the Equality Bill will also affect the private sector. For example, by:
- the public sector promoting equality through its purchasing functions in the private sector;
- banning clauses in employment contracts which prevent employees discussing their pay;
- introducing a new "kite-mark" to encourage employers to improve transparency on equality;
- strengthening Tribunal enforcement in successful discrimination cases. A Tribunal will be able to make a recommendation applying not just to the successful complainant but to everyone in that workplace (e.g. by introducing an equal opportunities policy or reviewing pay policies). If the employer fails to comply with the recommendation, a Tribunal could take this into account in any future cases;
- conducting inquiries through the EHRC into sectors where most progress needs to be made, starting with the financial and professional services sector.
Age
The Bill will outlaw unjustifiable age discrimination by those providing goods, facilities and services. Differential provision of products and services for older people will not be unlawful where this is justified (e.g. actuarially justifiable age-based treatment in areas such as financial services).
Implications for you
- The extension to positive action is likely to result in an increase in discrimination litigation, with arguments focusing on whether candidates are equally qualified. Proving candidates are equally qualified (enabling the lawful appointment of the under-represented candidate) is likely to be difficult, particularly for senior jobs where ability can be subjective. As a result, many employers may decide not to use this preferential right in the Bill, particularly given the likely resentment from the equally qualified other candidate rejected essentially on grounds of race/sex.
- Strengthened enforcement abilities in the Tribunal mean the outcome of successful individual discrimination claims may result in more than a payment of compensation to the individual. Tribunals could require private sector employers to implement extensive and expensive audit or diversity programmes. In addition, irrespective of any claims brought, employers in the financial and professional services sectors can expect increased scrutiny from the EHRC in relation to equality issues and should start reviewing equality and pay structures and identify any unjustifiable discrepancies to be addressed.
The Bill will bring together the many separate pieces of legislation covering discrimination law in the UK. Consultation on the Bill will continue during the course of this year, although the text of the Bill is not likely to be published until early 2009. We will update you with these further developments.
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Contacts
If you would like further information on this subject please get in touch with your usual contact or:
Guy Fifield,
Partner, Employment & Pensions T: +44 (0)20 7246 7045
Gilla Harris,
Partner, Employment & Pensions T: +44 (0)20 7320 6960
Pauline McArdle,
Partner, Employment & Pensions T: +44 (0)20 7246 7017
Richard Nicolle,
Partner, Employment & Pensions T: +44 (0)20 7246 7617
Simon Whysall,
Partner, Employment & Pensions T: +44 (0)20 7320 5513
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