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The Equality Bill: Hidden agenda?

Swerving discrimination means amendment pile-up

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Opinion Employment lawyers and HR professionals would be well advised to keep a close eye on the progress of the Equality Bill, currently being debated in the House of Lords. Initially intended as a legislative sweep-up, it now proposes major policy changes.

This Bill began life as a piece of legislative house-keeping, designed to pull together disparate and sometimes even conflicting regulations and laws on equality that had developed piecemeal over the last 30 years.

Equality law had become hard to navigate and even harder to actually use, so two and a half years ago the Government began the process of consolidating it into one big, consistent whole.

The horizons of the Government's ambitions soon broadened. In fact, so radical are some parts of the proposals now that the Bill seeks to introduce into the UK entirely new legal concepts, such as positive discrimination.

Employment law is fast moving: it has taken so long to progress the Equality Bill that it keeps needing amendment to keep up with the way the law is interpreted. A good example is a House of Lords ruling in a case involving the London Borough of Lewisham in 2008. This overturned 10 years of employment law practice: it narrowed the circumstances in which a person could bring a disability discrimination claim.

The Government didn't like the effects of the ruling. An Equality Bill was on the way anyway, so a section was inserted realigning the law with the Government's policy objectives of providing broader cover for people discriminated against because of their disability.

It hasn't stopped there, though. Other new developments appeared in the proposed law.

Another court ruling extended the protection of anti-discrimination legislation to those who care for disabled people. Sharon Coleman took the case against law firm Attridge Law over unfavourable treatment she said she suffered on account of being her disabled son's primary carer.

The European Court of Justice said that though she had no disability herself, she must be protected by anti-discrimination law. The Equality Bill effectively enshrines that ruling in legislation, removing the ambiguity about the existence of protection from discrimination by association.

Other changes are more controversial. One introduces for the very first time a US concept to redress historical disadvantage: "affirmative action".

This has never had any legal basis here. But the Government has proposed introducing it, albeit in limited and unlikely circumstances.

The Bill says that if an employer is faced with two equally qualified candidates for a job it can choose one over the other on the basis that they are from a group of people who are under-represented in that organisation, perhaps on the basis of their gender, race or disability.

This has been hugely controversial and my discussions with companies suggest that employers are far from keen on actually using it. Apart from anything else, say companies, the chances of finding yourself faced with a choice between two candidates of exactly identical suitability for a job are vanishingly small.

Another hiring practice that comes under fire in the Equality Bill is the use of pre-employment questionnaires which ask potential workers about things such as their health.

An employer can ask you about your health as long as they ask every other candidate the same questions. This is perceived to be widely abused by organisations who might, for example, find a way of pushing out of the process a candidate who admitted to having depression in the past.

Alive to that potential for abuse, the Equality Bill now contains clauses regulating the use of these pre-employment surveys.

The Bill also contains changes to the very basis on which people can claim discrimination. Until now you could claim that you have suffered sex discrimination, or race discrimination or discrimination on one of five other grounds.

Even while claiming sex discrimination you could make another claim on the grounds of a disability or your religious beliefs.

What you cannot do, though, is claim that you were discriminated against because of a combination of two of your characteristics. So if you believe you were excluded from a job because you are an older woman you can claim discrimination on grounds of age or sex or even both of them separately, but you cannot claim that you were discriminated against because of the interaction of your age and sex.

That, too, is to change. The Bill introduces the right to take dual discrimination actions, arguing that the basis of discrimination was the interaction of two of the seven strands of discrimination law. This is bound to lead to an increase in discrimination claims as claimants test out the new law.

These are just some of the new measures that have made it into the Bill. Their merits and drawbacks are still being debated in the Houses of Parliament and some are more controversial than others.

But what organisations need to know most of all is that this is no longer an exercise in administrative tidying; the Equality Bill is a major, policy-changing piece of legislation and it needs to be tracked carefully if organisations are going to keep on top of the emerging law.

By Selwyn Blyth, an employment law partner at Pinsent Masons, the law firm behind OUT-LAW.COM.

Copyright © 2010, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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