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Published 2 December 2008
The bill
Proposed new legislation aimed at
consolidating the existing law on equality is in the initial
reading and discussion stages in Parliament. The most publicised
aspect of the bill is the proposal to make 'positive
discrimination' legal. However there is much more to the bill,
including:
- Increased diversity reporting requirements for public
sector bodies.
- New rights to bring action for multiple discrimination
i.e. being an older woman or a gay black person.
- Rights to bring representative actions in the
Employment Tribunal i.e. where groups of employees get together to
bring one claim. This right currently only exists in the High Court
and so will make representative actions more accessible to
employees.
- Proposal to ban 'gagging' clauses in contracts. This
means that it will no longer be possible to ban employees and
contractors from discussing their pay. This is to encourage
transparency in regards to pay in the workplace.
Many of the initiatives in the bill will be
trialled in the public sector and will not immediately apply to the
private sector (i.e. reporting requirements). However if you have
public sector clients you should bear in mind that they may expect
you as their supplier to assist them in complying with their
obligations.
Positive discrimination?
One of the key initiatives of this bill is the
ability to take 'positive action' in favour of under-represented
groups, to redress any imbalances in the workplace.
Does this mean that you must take
so-called positive action?
No. This will be voluntary and will not be
quota-driven. In fact, positive action can only be taken where
there are two identical candidates and one is part of a group that
is under-represented in the workplace.
Clearly it is very rare to have two candidates
that are equal in every respect, so there are questions as to how
workable this process will be in practice. Organisations will
also have to be very careful to ensure they are taking positive
action uniformly and not just when it suits them.
Implications
Since this bill is still in its early
stages, there is no immediate action to take. However your HR and
Legal departments should remain aware of the developments as it
goes through the various stages in Parliament. Elan will also keep
you regularly updated.
General points to consider are: your approach
to reporting on equality in your workplace, whether positive action
is something you might consider, whether representative actions are
a risk to your organisation and whether your contracts include pay
secrecy clauses.
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