The New Proposed Equality Legislation

Recently Harriet Harman unveiled her “Framework for a fairer future” and hit the headlines with the prospect of legislation to allow “positive discrimination” in favour of women and ethnic minorities. Needless to say, it’s not quite as simple as that.

True, the political parties have for some time used all women shortlists in selecting parliamentary candidates, but, will this level of positive discrimination extend into the workforce under new legislation?

The answer is almost certainly yes. The new bill will allow employers to take “positive action” when choosing between equally qualified candidates. They will be able to take into account the fact that certain groups are under represented in their organisation and are permitted to redress the balance by appointing those people in preference to others.

For white males this could provide significant challenges in their employment market, especially school leavers who are already identified as underachieving when compared to their female contemporaries. Underrepresented groups can be fast tracked to the top jobs, provided of course they are equally suitable.

The other big issue is pay. Despite the Equal Pay Act, which goes back 38 years to 1970, there are still substantial pay differences between the sexes. According to Harriet Harman’s report the gap can be up to 26% in the public sector. The figure for private sector workers is double this amount.

To bring a successful claim under the equal pay act the worker must find a comparator – a person who does the same or similar work but is earning more money. The process then becomes quite complicated: a Job Analysis Report is prepared to set out a factual analysis of the job to show the Employment Tribunal that the work is the same or comparable. In addition an expert gives an opinion to the tribunal as to whether the work of the claimant is equal to the work of the comparator.

The new proposed legislation will tackle these issues on a number of fronts. Primarily they will use public sector purchasing power. Not only will public sector organisations be required to demonstrate policies which offer equality in employment but they will require their suppliers to operate the same policies, thus extending the impact of government policy throughout their supplier networks.

Secondly, secrecy about pay will be banned. Public sector organisations will probably publish their salaries internally, but in any event, secrecy clauses in contracts of employment will be outlawed.

The government also proposes positive action such as mentoring schemes to assist minority groups to access high level employment. It also currently sponsors 15 pilot projects through the Union Modernisation Fund to help unions provide Equality Representatives.

Employment tribunals will be able to recommend ways employers can improve compliance with legislation and this will apply to all their existing employees, not just the person who has taken the employer to tribunal.

Multiple discrimination cases will be dealt with by tribunals. At present only one ground of discrimination can be relied upon in a tribunal claim, in future a female member of an ethnic minority group will be able to take a case to tribunal on BOTH race and sex discrimination.

The Equality Bill will not only be a development on the existing equality legislation but will be a radical overhaul to redress imbalances which have not been resolved using previous legislation.

Contact Caroline Mitchell for more information or advice on this issue.

Published 09/07/2008. The author of this article is Caroline Mitchell