15 September 2009 Contents 01 The Equalities Bill

01 THE EQUALITIES BILL

This is quite a complex briefing, but the final paragraph contains a summary of the main issues. You might actually prefer to go to this first, and then read down from the beginning through the detailed commentary.

The government's current Equalities Bill has been long in gestation - represented by such documents as the Discrimination Law Review (2007) and Framework for the Future: The Equality Bill (2008). Published in April of this year, it seeks to fulfil a Labour manifesto commitment to introduce a Single Equality Bill within this Parliament. Its publication was accompanied by an explanatory document from the Government Equalities Office, A Fairer Future: The Equality Bill and other action to make equality a reality (2009). It passed its House of Commons Committee stage in July.

This process of modernising the Equalities agenda began with the proposal to subsume the Commission for Racial Equality within a body with a broader equalities remit (the present Equalities and Human Rights Commission). FIS has been involved in the consultations on this process from the outset in 2004, with the publication of Fairness for All: A new commission for Equalities and Human Rights. The concerns which we expressed broadly mirrored those expressed by many other BAME groups. However, in a submission to the Equalities Review in November 2005, we did raise the issue of the Black/White binary which still limits discussions of race, discrimination, and 'the ethnic penalty' to the disadvantage of 'invisible' groups like the Irish.

In a briefing to our members on Fairness for All... (2004) we drew attention to something which has been an abiding characteristic of this modernisation process: "an over optimistic view...of the benefits of improved information and persuasion in reducing discrimination. In describing the functions of the proposed new body, words like 'encouraging', 'promoting', 'working towards', 'keeping...under review', 'advising' are those most constantly used. This contrasts with comparatively little emphasis on the new body's powers of audit (investigating/monitoring) and enforcement. At the same time we were clear that "enforcement and persuasion [are not] alternative, mutually exclusive strategies [and] we see the relationship between these two elements as crucial...we welcome many of these 'persuasion' proposals...we do also believe that at the present time there is a need to strengthen the powers of auditing and enforcement..." (FIS's most comprehensive briefing of 2007, in the lead-up to Framework for a Fairer Future..., can be found here.)

In a briefing of July 2008 on Framework for a Fairer Future..., the TUC suggested that "There was clear resistance in parts of Government and from the business lobby to any new legislative measures"; and a more recent echo of this allegation can be found in a report in The Observer of 6 September 2009, where the finger is pointed at the Office of Government Commerce at the Treasury.

The TUC also drew attention to areas of the proposals on an Equalities Bill which remained to be clarified by secondary legislation and/or further consultation - and this remains true of many significant aspects of A Fairer Future... In fact, this situation has been only marginally addressed in the progress of the Bill so far, which makes it very difficult still to judge what will be the full impact of this proposed legislation. However, that also means that there is an opportunity to influence further stages of the Bill, between the Autumn, when parliament reconvenes, and the completion of the Bill's further parliamentary stages in the Spring of 2010 - if an early general election does not intervene.

The following summary is largely based on A Fairer Future... (2009). Among the currently proposed outcomes of the Bill are:

• industrial tribunals will be allowed to make recommendations in discrimination cases which benefit the whole workforce in that place of employment; but it is not intended to allow representative actions (i.e. in which one or a few members of a class of people sue on behalf of themselves and other members of the same class) under this proposed legislation;
• a commitment is made to allow claims on grounds of multiple discrimination (but presently limited to two categories);
• the government will have power to require reporting on the gender pay gap by employers of 250 + employees in the private sector; however - while the government will monitor reporting on this pay gap in the private sector annually - this new power will not be exercised until 2013 and only then if sufficient progress on reporting has not been made within that sector;
• the government will have power to require public bodies, probably with 150 + employees, to report annually on their gender pay gap, their ethnic minority employment rate [Editor: will Irish be included?], their disability employment rate [Editor: will this include ethnic breakdown?];
• a new single public sector Equality Duty covering race, gender, disability, age, sexual orientation, religion, belief, pregnancy, maternity, and gender-reassignment, will require "a range of public bodies"to "have due regard" to the need: (a) to eliminate unlawful discrimination, harassment or victimisation; (b) to advance equality of opportunity; and (c) to foster good relations; some examples of what "the Equality Duty could mean" are given and it is stated the full list of the bodies - public bodies - plus private bodies that deliver a public function (e.g. a private firm running a prison) - still remains to be listed in the legislation;
• under this new Equalities Duty also, an expansion of the very limited existing powers of positive action is proposed: this will allow employers to pick someone for a job from an underrepresented group when they have a choice between two or more candidates who are equally suitable, provided they do not have a general policy of doing so in every case [Editor: the example on p. 18 of A Fairer Future... is worth a read]; however positive discrimination will remain illegal, and employment quotas will not be permitted;
• the bill "makes it clear that public bodies can use procurement to drive equality"; but what this will mean in practice is still being considered, though there is mention of benefits of "encouraging" suppliers to promote equality;
• the Equality Bill will make it unlawful to discriminate against someone aged 18 or over because of age when providing services or carrying out public functions; here it is pointed out that the law will only stop age discrimination where it has negative or harmful consequences, e.g. it will not affect priority flu vaccines for over-65s; here again we are informed "This summer we will consult on the details of the new law"; further, this aspect of the Bill will be implemented in phases, and the government "expects" to see the legislation in force in financial services and all other services - with the significant exception of health and social care - in 2012;
  
• a number of groups are considered more specifically in the Bill: for example, it will be unlawful to knowingly treat a disabled person in a way which amounts to poor treatment, unless the treatment can be justified; there will be a new duty on landlords and managers of residential properties to make alterations for disabled people, where it is reasonable to do so; provision will be made to protect people from discrimination through their association with someone who is open to discrimination - extending protection to, for example, carers; it will be unlawful for associations, including members' clubs, to discriminate against members or invited guests of members;
• the Bill also proposes a new public sector duty applying to government ministers and departments, and key public bodies such as local authorities and NHS bodies, to "consider what action they can take to reduce the socio-economic inequalities people face"; however this duty is restricted to strategic decisions, and will not apply to front line decisions taken by service providers which relate to individuals; also further guidance on the new duty still remains to be published "ahead of the new duty".