The Government Equalities Office has published A Framework for a Fairer Future: The Equality Bill, setting out its plans for a Bill to be introduced later this year.  This legislation will ultimately replace all existing equality laws. It is intended that the Equality Bill, supported by secondary legislation and additional non-statutory measures, will "strengthen protection, advance equality and ‘declutter' the law".

For public authorities, the Bill will provide for:

  • a new single equality duty applying to race, disability and gender, age, gender reassignment, sexual orientation and religion or belief
  • annual reporting on rates of pay by gender and employment of people from ethnic minorities and disabled people.

Public authorities may also be expected to use procurement contracts to secure similar transparency from private sector suppliers.  Regulation of the private sector has been deferred; whether companies should be required to report on workforce equality matters will be reviewed in five years.

The Bill will:

  • enable the phasing in of laws prohibiting age discrimination for people over 18 in access to public and private sector goods facilities or services
  • broaden the scope for positive action, enabling an employer to select a person from an under-represented group in a tie-break situation
  • strengthen enforcement and protection against discriminatory practices.

The package of proposals outlined in the Framework and those yet to be made public will undoubtedly have a major impact on the policies and priorities of local councils both directly and within the partnerships in which they are now engaged, although until the detailed proposals are known, it is difficult for local authorities either to respond or to begin to make changes to policies or procedures. Further consultation on the proposals is promised. The Framework document can be found through the accompanying link.

This briefing has been written for CSN and LGIU by Barbara Cohen, an independent expert on discrimination law.

Briefing in full

Background

The White Paper, A Framework for a Fairer Future: The Equality Bill, published by the Government Equality Office on 26 June 2008 takes one step further the realisation of the Government's manifesto commitment to introduce a single equality bill in this Parliament.

In June 2007 the DCLG published a Green Paper, Discrimination Law Review: A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain, seeking views on a detailed set of proposals for new equality legislation. (See 'Related briefings' for the CSN briefing, 21/8/2007, on this.) The Green Paper built on the February 2007 report of the Independent Equalities Review, and a parallel Discrimination Law Review conducted by officials within the Women and Equality Unit (then within DCLG). 

The Framework outlines the main new features of the Equality Bill that will be introduced later this year.  The Framework also promises that a more comprehensive paper on the content of the Equality Bill, which will also include the government's response to last year's Green Paper consultation, will be published shortly.

In a statement in the House of Commons, the Minister, Harriet Harman, promised an initial paper in July, and "a continuous and determined programme of further action, which will include: considering whether there is a case for representative actions to employment tribunals; working out whether we can toughen the law to give redress to people who suffer discrimination on multiple grounds; and working with the trade unions to strengthen the excellent and pioneering work of trade union equality representatives in the workplace".

The Framework is organised into six chapters.  Each of the first five chapters focuses on a particular area to be included in the Equality Bill, summarising briefly the current position, including relevant legal, policy and practice as well as problems or deficiencies with some discussion of implementation and follow-up.  The sixth chapter summarises tasks for the immediate future indicated in the preceding chapters.  The contents of all six chapters are likely to be relevant to local authorities in their capacities as employers and service providers and as public authorities carrying out a wide range of functions including procurement subject to equality duties.

Chapter 1 "Delivering public policy objectives - An Equality Duty on public bodies"

The first chapter explains that the Government is aiming to involve all public bodies more fully in meeting its equality targets.  Noting the positive impact of the race, disability and gender equality duties on public sector employment, service provision and customer satisfaction, the Government will include in the Equality Bill a new Equality Duty which will replace the existing duties and will also cover gender reassignment, age, sexual orientation and religion or belief.  

No details are given other than that the new duty will require public bodies "to consider how their policies, programmes and services affect different disadvantaged groups in the community."    The new duty is to be "a streamlined process"  which will help public authorities focus on outcomes.  It is to be designed so it can be "used flexibly and effectively by all the different kinds of public bodies, in proportion to their size, their resources and the challenges they face, to make a positive difference to people's lives without being too  bureaucratic."

The Government intends to consult on the processes that should be required as specific duties under secondary legislation and which bodies should be subject to specific duties.

Chapter Two   "Ending Age Discrimination"

This chapter discusses proposals for the phased introduction of laws prohibiting discrimination on grounds of age in the provision of goods, facilities and services and public functions. The proposed ban on age discrimination would only apply to people over 18.  The Equality Bill will create the power to introduce anti-discrimination measures through secondary legislation.  After consultation with different groups of service providers likely to be affected, including local authorities and other social care providers, a timetable will be produced and legislation will be  introduced gradually. 

It is not intended that when the non-discrimination provisions come into force they would prevent any of the concessions or differential provision of products or services for older people, including those provided by local authorities such as free travel passes, concessionary fees for leisure activities, advice, aids and grants for safer, warmer homes or group holidays for particular age groups.

The Framework states "the inclusion of age in the new public sector Equality Duty will help public bodies prepare for the ban" leaving some uncertainty for public bodies as to how age equality will be covered in initial implementation of the expanded equality duty if, as the Framework suggests,  the new duty including age comes into force before the specific legislation banning age discrimination.

Chapter Three - "Requiring Transparency"

In Chapter Three the government sets out how it proposes to use ‘transparency' as a means towards achieving its national targets to reduce the gender pay gap and the ethnic minority and disability employment gaps.

From a premise that to tackle inequality "we must be able to see it",  the government proposes that the new public sector Equality Duty will require public sector employers to report publicly on gender pay, ethnic minority employment and disability employment as a means of measuring progress (or lack of progress)  and making comparisons.  As an illustration this chapter includes tables showing wide disparities between government departments in relation to the gender pay gap and the proportions of Black and Minority Ethnic  and disabled staff.  The Framework does not state what information public bodies will be required to publish or which public bodies will be subject to such requirements.

In this context, the government is considering legislative and non-legislative ways to help public authorities use procurement to encourage greater transparency among their private sector contractors.

There are no current proposals to impose equality reporting obligations directly on private sector employers. The government intends to monitor progress on achieving greater employment equality in the private sector over the next five years, with the prospect of using company legislation to require greater transparency in company reporting on workforce matters.

Alongside a statutory ban on pay secrecy clauses there are proposals for non-statutory changes including a review of the impact of equal pay job evaluation audits and the development of an equality ‘kite mark' for the private sector.

Chapter Four - "Positive action to open up opportunities"

When the Framework was published it was this chapter, proposing a wider scope for positive action, that received the most - and the most hostile - attention by the media, much of it ill-informed.

As is currently the case, any new forms of positive action will be wholly voluntary and the legislation would be permissive and not mandatory. The government proposes that the Equality Bill could permit employers to take under-representation into account when selecting between two equally qualified candidates. In practice this would allow an employer in selecting between two candidates who are equally suitable to use the fact that one is from a group that is under-represented in their workforce as a ‘tie-breaker", that is, in such cases, it would be lawful to give preference to the candidate from the under-represented group. The Framework emphasises that this is not about fixing quotas, which will remain unlawful, and positive action would not apply if one candidate were more suitable.

It is suggested that this proposed form of positive action could also be used to ‘fast track' recruitment for candidates from under-represented groups provided that before doing so the employer was satisfied that there was no difference in suitability for the post(s) in question between those they wished to ‘fast track' and the other candidates.

The Government expects the Equality and Human Rights Commission (EHRC) to publish guidance on how the positive action provisions can be used.

The Equality Bill will extend the permitted use of women-only shortlists for political party nominations from 2015 to 2030  but will not include in the Equality Bill parallel provisions for all-ethnic minority shortlists, citing lack of consensus among ethnic minority MPs as one reason. There is also no reference to including political parties within the scope of the legislation, outlawing discrimination and permitting positive action.  As a non-legislative measure, the Framework refers to  the recent launch by Harriet Harman, Minister for Women and Equalities, of a new cross party Black, Asian and Minority Ethnic (BAME) Women Councillors Taskforce to take practical action to help more black, Asian and minority ethnic women to become councillors, including through outreach into communities and mentoring. http://www.equalities.gov.uk/min_eth/BAME_Women.htm

Chapter Five:  "Strengthened enforcement"

This chapter contains one specific proposal to strengthen enforcement in employment discrimination and refers to other matters that are being considered.

The Equality Bill will give employment tribunals a new power, when they uphold discrimination complaints, to make recommendations going beyond the complainant to benefit the wider workforce and to prevent discrimination in the future.  For example, if a complaint of race discrimination in selection for promotion was upheld, even if the complainant had left her job, the employment tribunal could recommend that the employer revise its selection procedures, adopt an equal opportunities policy or require managers to undertake equal opportunity training.  The Framework fails to indicate who would be responsible to ensure compliance with recommendations affecting the workforce generally.

While recognising that discrimination or harassment may occur on combined grounds of discrimination, for example discrimination against a Muslim man or harassment of a black woman, the government regards this as "a very complex area" and is still exploring how a complaint based on multiple grounds could be brought "and what the costs and benefits would be".

The Government states that it is supporting the development of trade union equality representatives and is sponsoring 15 pilot projects which will report next year.  It is not clear what status it is recommending equality representatives should be given.

The Framework refers to systemic forms of discrimination and situations in which a group of employees or service users have the same experience of unfair treatment and to the work being done by the Civil Justice Council in relation to proposals to amend civil justice procedures to allow representative actions.  If the Civil Justice Council recommends representative actions within the civil justice system generally, the Government will consider allowing representative discrimination claims which trade unions of the EHRC might bring on behalf of multiple complainants.

Chapter Six "Next steps towards The Equality Bill"

In this chapter the Government lists four areas of work to support the Equality Bill referred to in previous chapters:

  • work with public authorities and the EHRC to develop specific duties to underpin the general Equality Duty
  • work with public and private sector stakeholders to develop detailed proposals for prohibition of unjustified age discrimination
  • work with the Office of Government Commerce and government departments to develop ways to improve the use of public procurement to secure equality outcomes
  • work with business trade unions and the EHRC to develop proposals for better private sector equality reporting and performance.

Comment

As its title, Framework for a Fairer Future: the Equality Bill, suggests, this document is just a framework.  It includes a reminder of the urgent need for action to tackle wholly unacceptable persistent inequalities and describes briefly important new features of the Equality Bill which the government intends to introduce later this year.  It focuses on five important issues:  a new public sector equality duty, prohibition of age discrimination, greater transparency as a means of tackling entrenched inequalities, wider scope for positive action and strengthened enforcement. Even for these, however, the detail is still being worked out.  However, it is clear that the proposed ban on age discrimination would only apply to people over 18, thus excluding young people who are 18 or younger.  

More broadly there is an intention to "declutter" the existing complex array of statutes, regulations, codes of practice and guidance.  To have new legislation that is simple and written in plain English is very much to be welcomed; however it is of critical importance that the obligations on employers, service providers and public authorities and the rights of employees and service users are clear.  Clarity in this important area should not be sacrificed for simplicity.  Some of these concerns were noted in the earlier CSN briefing on the Green Paper on the Single Equlaity Bill, issued for consultation in June 2007. (See 'Related briefings.)

It would be right to have some reservations about indications in the Framework that in certain areas the Equality Bill will simply enable secondary legislation to introduce regulations that prescribe new rights or duties.  One of the problems with existing equality legislation is that much of it has been introduced in the form of regulations that parliament cannot improve or correct through debate and amendment, as they are introduced in a form that can only be accepted or rejected. 

This framework does herald important changes affecting local authorities.  It is regrettable that the Framework offers few clues as to what a "streamlined" equality duty will look like; usefully it appears that there will be some further consultation. As extending the public sector Equality Duty to cover gender reassignment, religion or belief, sexual orientation and age could have major implications for local authority policies in areas such as social services, housing, planning, children's services and education and for the development of strategies and priorities within local partnerships, some forward thinking may be useful.  One specific requirement will be to report on gender pay and ethnic minority and disability reporting (detailed reporting on ethnic minority employment is already a specific duty of local authorities).  Knowing this in advance should alert local councils to look now at rates of pay of women and men as well as  at the pay implications of de-facto job segregation by gender and  at the ways in which employment opportunities could be improved for  people from ethnic minorities and disabled people.

Local authorities in general have been far more willing and able to use procurement to secure equality outcomes in employment and service delivery than most other public bodies.  It is clear that this will form part of the Equality Bill package, although again without any real information at present on any likely legal requirements.

The phased introduction of a ban on age discrimination in areas outside employment should provide a further opportunity for a local authority to consider how it treats older people in terms of concessions and benefits, and also its policies and practices that may, either directly or indirectly, disadvantage people within certain age groups.  Because of the significant role that local authorities play in providing services to older people, it will be important to make full use of the promised opportunity to engage in discussion with the government on the implications of banning age discrimination and the related potential costs of bringing age equality within the Equality Duty.

With regard to the proposal to broaden the scope for positive action, while the tabloid press expressed outrage, in fact what is proposed is unlikely to take UK law outside the limits on positive action imposed by the European Court of Justice in cases from other European jurisdictions.  An important as yet unanswered question is how under-representation is to be assessed: it could be for the whole of a workforce or for persons employed in a particular location, department or directorate, or persons doing particular work (as is the formulation under the existing more limited positive action provisions).  Many local authorities have wanted to find lawful ways to improve representation of particular groups within their workforce; if what is proposed survives the parliamentary process, it should encourage councils firstly to review what they specify as requirements for various posts and then to consider how, at which stages of recruitment, they might take advantage of the possibility of positive action where there are candidates of equal suitability including candidates from under-represented groups.

At this stage it is important to be alert to the fact that equality legislation is changing and that public sector bodies are likely to be given an increased role in eliminating discrimination and securing greater equality.  Councils should be alert to the more detailed proposals that will be published "shortly" and the Equality Bill itself which is likely to be introduced towards the end of the year.

 

Additional Information

The primary legislation introduced by the Equality Bill will apply throughout Great Britain, but secondary legislation is the responsibility of the devolved Administrations. If, for example, there is a Scottish public body that operates only in Scotland, any statutory instrument that applied the primary legislation to that organisation would be the responsibility of the Scottish Executive. However, all organisations that work across the border between England and Scotland would be covered by reserved powers.

Covers

  • Education
  • Children's services