The Equality Bill 2008-2009 - Expert Comments

David Reid
14th May 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.

Employment equality act

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.



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.


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. 


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 previous update – DDA Comparators.


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

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