Single Equality Bill - Article Updated April 2010

On Monday 27th April 2009, the government published the Single Equality Bill. This briefing provides an outline of the indicative timetable for implementation as well as the scope and intention of the new legislation. It is likely that the Single Equality Bill will be amended through its parliamentary passage. There is also the prospect that the political climate may well change further, bringing about a General Election. If there is an election before the Single Equality Bill has completed its parliamentary passage the legislation will, of course, either be lost or subject to a guillotine debate.

 

The New Equality Bill and Implementation Dates

The Equality Bill, which is planned to take effect from Autumn 2010, will replace the Equal Pay Act 1970, the Sex Discrimination Act 1975, the Race Relations Act 1976, the Disability Discrimination Act 1995, much of the Equality Act 2006, the Employment Equality (Religion or Belief) Regulations 2003, the Employment Equality (Sexual Orientation) Regulations 2003, the Employment Equality (Age) Regulations 2006, and the Equality Act (Sexual Orientation) Regulations 2007 (where applicable, as subsequently amended), plus other ancillary pieces of legislation.  The Leader of the House of Commons has indicated that the legislative proposals on equal pay will be implemented in 2013. Until 2013, support will be provided to encourage   voluntary adoption and implementation of the new equal pay provisions. A Code of Practice will be published together with guidance on equal pay audits.

 

Scope of the New Equality Bill – Key Points

Although most of the current discrimination legislation will still apply, the Equality Bill will change our equality law by: 

  • introducing a new public sector duty to consider reducing socio-economic inequalities;
  • putting a new Equality Duty on public bodies;
  • using public procurement to improve equality;
  • banning age discrimination outside the workplace;
  • introducing gender pay reports;
  • extending the scope to use positive action;
  • strengthening the powers of Employment Tribunals;
  • widening the scope of Associated Discrimination to all strands;
  • offering new mothers stronger protection when breastfeeding;
  • banning discrimination in private clubs; and
  • strengthening protection from discrimination for disabled people to the new concept of associated discrimination – covering all the strands
  • allowing constituency associations to continue using “women only” shortlists  up to 2015 when adopting a prospective parliamentary candidate

A note on some of the main points are profiled below:-

 

 

Public Sector Duty – Reducing Socio-Economic Equalities

This has been summarised in political terms as being the need to close the gap between rich and poor. There is no guidance as yet on the definition of how these issues should be addressed by the public sector. It is likely, however, that public sector bodies already addressing social inclusion policies and drawing down comparative data and indices of poverty from the Audit Commission will be a key driver. This new duty is certain to focus on family background, earning levels, health inequalities, access to education, employment opportunities and what in cruder terms has been dubbed the “post code” lottery of some public provision. This new duty has the potential to overshadow the other diversity strands. Indeed the other diversity strands will be measured in part by these socio-economic indices. The Secretary of State has asked Professor John Hills of the London School of Economics to analyse these factors as well as the links between them. A committee headed by the Professor will report to the government later this year. This new public sector duty is certain to attract political controversy during the forthcoming debates in the Commons and ultimately the General Election.

 

 

New Equality Duty on Public Bodies

The existing public duties on race, disability and gender, introduced incrementally since 2000, will be extended to:-

·         Age

·         Religion and Belief

·         Sexual Orientation

The existing tripartite focus on eliminating discrimination, raising awareness of these issues and strengthening protection will be maintained. Coverage of the new duties will embrace:-

·         Those you employ – and hope to employ

·         Those you serve – and hope to service

·         Your stakeholders in the public, voluntary and private sectors

The latter focus on the private sector is further developed in the next clause on procurement policies and practices.

 

 

Procurement – Contract Compliance
The Equality Bill will make it clear that public bodies can use procurement to further equality objectives when they are buying goods and services from private sector firms. This will be consulted on over the summer.

For example, a council commissioning a construction project for a social regeneration scheme could require the contractor to run a positive action programme to train women in under-represented areas such as plumbing or carpentry, or pre-qualification criteria could be stated.  £175 billion was spent last year by the public sector on procuring contracts.

 

 

Age Discrimination – New Provisions

The employment provisions of the Age Discrimination Regulations, introduced in 2006, will be extended to the provision of goods, facilities and services. This will potentially take us into scenarios of the sort profiled below which have long been argued as age prejudicial:-

·         NHS patients being told to expect poor health at “their age” or being refused treatment altogether

·         Travel, health and motor insurance cover. Often cover has either been withdrawn beyond a certain age or is just too expensive

The Secretary of State has confirmed that the provision of free bus passes for the elderly will still remain.

 

 

Gender pay reports
The Bill contains a power to require reporting on the gender pay gap by employers with 250 or more employees. However the Government has committed not to use this power before 2013 and it will only be used if sufficient progress on reporting has not been made. The Equality and Human Rights Commission will develop a set of metrics for gender pay reports in consultation with business, unions and others over the summer. The Commission will also monitor progress on reporting within the private sector annually.

 

Positive action
The Equality Bill will allow employers to choose to take positive action to appoint a person from an under-represented group, provided candidates are equally suitable, if they want to. However, the most (equal) suitable person must still get the job and the merit principle still applies. This is likely to be one of the main political footballs in the months ahead! The Government press release makes it clear that positive action will be optional and there will be no quotas. Positive discrimination (employing someone because of a characteristic regardless of merit) will remain illegal.

 

 

Strengthening Employment Tribunals
Employment Tribunals can currently make recommendations to organisations to improve work practices – but only in relation to the individual who brought a case, who often ends up leaving employment anyway.

The Equality Bill will allow Tribunals to make wider recommendations to firms, which can benefit everybody in the workforce and help prevent similar types of discrimination happening again.

Associated Discrimination
It is currently unlawful to discriminate against or harass someone because they are ‘linked to’ or ‘associated with’ a person who is of another sexual orientation, race, or religion or belief (e.g. if an employer discriminates against an employee because she is married to an Asian man that will be unlawful).

The Equality Bill will extend this to age, disability, sex, or gender reassignment.  For example, an employer could not refuse to promote a member of staff just because he cares for an older relative or a disabled person.

Definition - What is Discrimination by Association?

Discrimination by association is the form of discrimination that occurs when the discriminatory ground applies to a person, but another person is detrimentally treated in consequence. Sometimes, the phrase “transferred discrimination” has been preferred as a way of describing more accurately what has taken place within certain situations. We provide some illustrations of this alternative definition within our commentary below about how the law might be interpreted. The concept of associated discrimination has had a very low profile until recently, featuring in a small number of race relations cases around the practice of “instructions to discriminate”. These race relation cases are briefly profiled below.  However, the most important case of late, effectively the catalyst for proposed legislative change, is that of Mrs Sharon Coleman v Attridge Solicitors. We have also provided a brief profile of this important case in the next section.

 

 

Important Cases – These have shaped the present definition of associated discrimination and/or transferred discrimination

 

Race Relations – Instructions to Discriminate – Associated Discrimination

 

The first real authority in this area was the case of Showboat Entertainment Centre Ltd v Owen (1984) ICR6. A white manager of an amusement arcade was dismissed because he refused to carry out an instruction from his employers to exclude “young blacks” from the premises. A second white manager obeyed the instruction and was not dismissed. The courts ruled that discrimination had occurred within this comparison of different treatment meted out to the two managers on the employer’s attitude to race which the first white manager had found offensive. There had been other smaller race relations cases prior to 1984 were the phrase “associated discrimination” was not used but the circumstances are now seen as clearly analogous. Thus, in Wilson v T B Steelwork Co Ltd (Case Number 23662/77), a white woman was turned down for a job because her husband was not white. The case of Zarczynska v Levy (1979) ICR 184, was based upon an instruction by a pub landlord, to the bar staff not to serve “coloured people” as customers.

 

Mrs Sharon Coleman v Attridge Solicitors (2008)

This recent case, building upon the foregoing examples from race relations complaints, takes us into the areas of (i) disability and (ii) those with caring responsibilities. But more critically, is now clearly the gateway that the United Kingdom government have decided to go through in applying the concept of associated discrimination to all diversity strands from both an employment and service delivery perspective.

Mrs Coleman gave birth to a child with a disability. Her child had a condition that led to very severe breathing difficulties. He required specialised and intensive care. She was his primary carer. She believed that her employer did not expect her to return to work after her maternity leave had expired. But she did so and about three years after the birth of her son, took voluntary redundancy. She subsequently alleged constructive discriminatory dismissal and harassment on grounds of disability. Her argument was that her son was disabled, and, because of her association with a disabled person and the manner in which she was treated, left her with no option but to take voluntary redundancy.

 

This discriminatory treatment included:-

 

·         Refusal by the employer to allow her to return to her existing job after maternity

·         That her employer had called her “lazy” when she sought time off work to care for her son

·         That the employer said she was using her “f..... child” to manipulate her working conditions

·         That employees with non disabled children were afforded the flexibility denied to her with their working pattern arrangements

·         Failure by the employer to deal with her grievances about these matters

Her victory obviously has caused the Disability Discrimination Act to widen within its scope but also will have profound implications for the six million of people in the United Kingdom already having to reconcile work and caring responsibilities. And an estimated three million more home carers who will now consider entering the world of work given the implications of this victory for them.

But the Coleman case has become the catalyst for change. In our April 2009 update we profiled the following breaking news.

 

The Leader of the House of Commons has just confirmed that the government will extend the prohibition against associative and perceptive discrimination to “all other diversity strands and areas” where it does not apply at the moment. This important announcement reflects the government’s considered response to the landmark case of Mrs Coleman, published in our July 2008 edition”

 

How might the new legal concept work?

The Coleman case will generate demands for a number of changes in practices relating to the workplace. An office culture that is based on the hostility of work colleagues towards carers who have to come in later or go home early will certainly have to change. Carers who want to work from home are likely to find it easier to make legal arguments in support of such a request.  On a much wider level, courts and indeed human resources specialists are going to be addressing how “associated with” is defined. It is almost certain that the scope of the definition will include immediate family, but possibly partners, friends, associates and colleagues. The European framework on which the Coleman judgement is based does in fact provide a very wide definition of “associated with.”

 

Not for the first time, it is instructive to look over the Irish Sea to the Republic.  There are some clear transferable European definitions of associated discrimination within that country’s equality laws and subsequent court decisions. And a previously introduced UK equality law does appear to be drawing upon Irish practice, e.g. the Age Discrimination regulations.

 

The Age Discrimination regulations, introduced in the United Kingdom in 2006, were first introduced in the Republic of Ireland in 1998. A largely European based statute, the way in which United Kingdom courts have been applying the Age Discrimination laws do appear to have reflected Irish case law authorities. This is likely to be the case with associated discrimination.

 

Discrimination by association was first introduced into Irish discrimination law in that country’s Equal Status Act 2000. This act deals with the provision of goods, facilities and services and is likely to be the model adopted by the United Kingdom very shortly in applying associated discrimination to both employment and service delivery situations. An important Irish case provides us with some idea of the indicative way in which associated discrimination might be defined and applied within service delivery situations. In the case of Michelle Feighery v McMathunas Pub (DEC S2003-51), a woman who was not a member of the traveller community was asked to leave a pub when she protested that travellers, whom she knew, had been asked on an earlier occasion to leave the premises. She was successful in her complaint of discrimination arising from her association with members of the traveller community. In this case, the complainant did not attend the pub with members of the travelling community. She was thrown out of the pub because she got involved in a situation that did not directly concern her. The case powerfully illustrates that the relationship with the complainant does not have to be close for the complainant to meet the test of “associated” within the context of Irish law. And it is this Irish definition and application, itself based on European Law that United Kingdom law is almost certainly going to emulate.

It would therefore be sensible for any employer:-

 

·         To plan on the basis that gender, race, religious belief, disability, age, sexual orientation are all characteristics that should not play any part in decision-making – and one has to take account not only of the employee but of anybody with whom the employee is associated

·         To amend all dignity at work policies covering harassment and bullying ensuring they cover the concept of associated discrimination

·         To ensure that customer care policies embrace the concept of associated discrimination. The early race relations cases profiled above and the Irish case show there is and will continue to be clear potential for complaints in this area

Some existing equality statutes do provide for a form of associated discrimination. The prohibitions on direct and indirect marital discrimination within the Sex Discrimination Act 1975 and latterly discrimination on the grounds of civil partnership status are the most obvious examples.

Experts have presented a number of hypothetical scenarios around which the new United Kingdom law will define and apply the concept of associated discrimination:-

 

·         A discriminates against B because B’s spouse is black; because B’s children are girls; because B’s friend is a Muslim; because B provides services to the gay community or because B’s spouse is of a particular age

There is also the further possibility that an act of indirect discrimination will define and apply the concept of associated discrimination. Although much problematical to discern, the following hypothetical scenario is entirely possible:-

 

·         A requires all staff (including B) to work full time. B is a carer for C who is disabled. There is clearly an instance of indirect discrimination against B- the requirement to work full time being one that it is more difficult for B (and others) to comply with, as a consequence of C’s disability.

There is a further school of thought that may well widen the scope and interpretation of the definition of associated discrimination. We mentioned in our opening paragraphs that the concept of “transferred discrimination”. There is the possibility that not all discrimination, as described above, will be associative in the normal recognised sense. The waiter whose employer gives instructions that he is to refuse to serve ethnic minority or female would-be customers has no association as such with these hypothetical people. It is the discrimination that is intended to be directed towards them (the would-be customer) has an additional discriminatory impact on another person – the waiter. In this context, the discrimination is “transferred” from one party to another, although the discrimination to the other party may well remain

 

 

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