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The Government’s highly-anticipated, 21st century-proof Equality Bill has had its first reading

It has been a long time coming and it has now had its first reading: two volumes, 200-plus sections, 28 schedules and 1,000 (yes, really) explanatory paragraphs. We were wondering how the Government would approach this long-awaited piece of legislation and the answer is seismic. Everything changes, within the constraints of existing European Community law. The Equality Bill sets out to provide an equality blueprint for the 21st century. Whether it succeeds only time will tell.

New: socio-economic disadvantage

Try to forget what you already know. Best to try and understand what the Act is trying to do per se. It starts with a completely new provision. Public ‘authorities’ will have to take socio-economic disadvantage into account when making strategic decisions about how to carry out their functions. This duty is potentially very wide. It would cover how resources might be allocated. It would also cover the criteria used for deciding what businesses might be supported by a development fund… sounds great in principle. The economic gap widens and children in the lowest socio-economic groups have poor (and worsening) chances of getting and making good use of educational and other facilities. In practise, Parliament should try and ensure that this provision does not simply end up clogging up the courts (and the resources of those same public bodies) with no real benefit for the poorest people.

Protected characteristics

The Bill creates a new ‘key concept’ of eight ‘protected characteristics’ and people will have wider legal rights than at present, which they can enforce in courts and tribunals in relation to almost all activities other than – arguably – purely private conduct towards family and friends. The eight protected characteristics are age, disability, gender reassignment, marriage and civil partnership, race religion or belief, sex and sexual orientation. These are essentially elaborating on the various categories under current legislation, and in addition, there are a number of specific provisions protecting women in relation to pregnancy, childbirth and maternity, reflecting recent European Union (EU)-based amendments. The underlying philosophy of the Bill is that wherever possible the rights and their application should be identical and should cover every situation. However, they do not all apply in the same way to all situations, so a careful read-through will be required.

Positive discrimination?

There is evidence of some really confident drafting, with a clear sense of what they are trying to achieve. For example, there is a whole new section called ‘advancement of equality’. This includes a much strengthened and widened duty of positive action for public bodies. In addition, it includes some very wide-ranging provisions permitting employers to discriminate in favour of someone with a protected characteristic in recruitment and promotion in some circumstances. This is the famous tie-breaker rule where people are ‘equally qualified’. This means that employers can, for the first time, discriminate in favour of women, gay people and so on overtly and deliberately. But it will also work the other way round so, for example, a primary school could use the fact that someone is male as the reason for appointing them to a job. And what about departments where the racial balance does not reflect the general population? Maybe the employer will be able to (and if they are a public body be required to) undertake social engineering to redress the balance. This is an enormous change and goes well beyond anything other EU countries are doing.

Separately there are positive action provisions (for the first time) allowing businesses to discriminate in favour of protected people who they reasonably believe are disadvantaged or not participating enough in the activity in question. It is going to be very intriguing to see how these provisions will be interpreted and used. Could a theatre offer, say, Asian people cheaper seats because they do not appear to visit so often as their white counterparts? Paradoxically, current special provisions for older people such as the freedom pass might no longer be allowed unless the councils can justify them as being a proportionate means of achieving a legitimate aim. This is because the Bill will extend age discrimination protection beyond the world of work (unlike at present). So this means that in future it will be unlawful to do something special for a particular age group just because it is a good idea: the person or body wanting to make these special offers, will have to prove that they are justified as a proportionate means of achieving a legitimate aim, OR that the advantaged people are currently disadvantaged or under-represented. And what about women-only taxi services? And what if men want to try on women’s clothes? Or oldies want to shake a leg at their local disco? On the face of it this sort of differentiation will be unlawful. I will be very interested to see what impact these new provisions have on our public lives and I would be prepared to bet that litigation will increase, at least to start with. And, in a move foreshadowed in recent pronouncements, it looks like the power of the procurement pound is to be harnessed to make private bodies more proactive as well. So, in future, people who want central or local government business will increasingly have to prove their equality credentials.

Finally, provisions to promote equal pay. There are new rules outlawing pay confidentiality in employment contracts or agreements and, from 2013, employers of 250-plus people will have to publish their pay rates. Public bodies (such as local councils, hospitals and police forces) with 150-plus employees will not only have to report on pay, but also only other equality measures such as numbers of Asian or disabled staff. I, for one, am quite surprised by the scope and reach of this new Bill.

Sue Ashtiany is head of the employment and discrimination group at Nabarro.

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