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Home > Feature Articles > The Equality Bill 2008-2009

The Equality Bill 2008-2009

Email Update 49
The Equality Bill 2008-2009 was published on 27 April 2009.

The Bill is intended to bring together and harmonise the present anti-discrimination statutes in a single Act, as well as strengthening some of the existing laws.

The draft Bill contains 205 clauses and 28 schedules. You can read it by clickng this link: http://services.parliament.uk/bills/2008-09/equality.html

Some of the important proposals contained within the Bill include:

Indirect discrimination

The definition of indirect discrimination will become the same across all strands of discrimination law. Indirect discrimination is where a provision, criterion or practice is applied equally to everyone but has an adverse and disproportionate impact on one protected group as compared to another. The classic example is that a criterion of having to work full-time indirectly discriminates against female employees because a significant proportion of this group cannot meet this criterion due to child care commitments.

Justification

Indirect discrimination is only unlawful when the employer cannot objectively justify it. The Equality Bill introduces a standard definition of justification as being a ‘proportionate means of achieving a legitimate aim’.

Pay Secrecy

Perhaps the most controversial aspect of the Bill is the proposal to make unlawful any provisions in employment contracts that seek to impose a ‘secrecy’ obligation preventing employees from discussing their pay packages. The main aim of this proposal is to force employers to justify any pay differentials in their organisation between, for example, men and women.

Disability Discrimination

The Bill re-defines the concept of disability-related discrimination to side-step the effect of the House of Lords decision in Lewisham v Malcolm [2008] UK HL 43 regarding the identification of the correct comparator.

In most discrimination cases it is necessary to identify a comparator eg a woman has to show that she has been treated less favourably than a man in order to be awarded equal pay. Following the Malcolm decision, in a disability case a disabled person has to show that he or she has been treated less favourably than a person who does not have the disability.

Take the example of a disabled employee who has been dismissed for long-term sickness absence. The position prior to Malcolm was that the proper comparator would be an employee who did not have a disability, was therefore not off sick, and so would not be dismissed. Therefore, it was often reasonably straightforward for a disabled person to show they had been treated less favourably than their comparator.

However, following Malcolm the proper comparator became an employee who was not disabled but off sick for the same length of time. While this approach is consistent with the other discrimination strands, it arguably failed to acknowledge the aims of the Disability Discrimination Act 1995.

The Government was concerned that the effect of Malcolm meant that it was now much more difficult for an employee to succeed in a claim against an employer, and that the aims of promoting equality and providing support for individuals who have a disability was therefore defeated. Accordingly the Government announced that it was their intention to ‘correct’ the decision in Malcolm which could only be done with specific legislation. For further discussion and analysis please see our email update 31 – DDA Comparators – which you can access by clicking on the link below:

http://www.justemploymentlaw.co.uk/features/update31

We will update our clients on the progress of this Bill through Parliament from time to time.