A new Equality Bill will create a ‘step change’ in workplace opportunities by tackling discrimination, ministers insist. But are the proposals workable?

It is less than two years since the Employment Equality (Age) Regulations were introduced to protect workers against age discrimination. But age discrimination, along with other anti-discrimination measures, has been thrown back into the legislative melting pot.

Over the years there have been numerous moves by the government to eradicate discrimination in the workplace. In June this year, equalities secretary Harriet Harman announced plans for a new Equality Bill, a draft of which is expected in the autumn (for Gazette In Practice’s take on the Equality Bill, turn to p13). Controversially, the bill will include provisions for ‘positive action to open up opportunities’, and the popular press has focused its attention on this intention to permit positive discrimination.

But that is just one element of a much wider consolidation and codification of the existing anti-discrimination legislation and statutory instruments. The single bill is intended to replace 116 different pieces of equality legislation in force – 35 acts, 52 statutory instruments, 13 codes of practice and 16 European Commission directives. The bill is also set up to tackle the pay gap between men and women and is broadening the scope of current age discrimination legislation.

Minister for equality Barbara Follett says the Equality Bill ‘will create a step change in opportunities in modern Britain. Ensuring diversity – both by protecting vulnerable groups where necessary and by building their capacity in the workplace – is essential if we are to create a wide pool of talent from which business can recruit’.

The aims are laudable, but how workable are the proposals? When it does come into force the Equality Bill will, without doubt, simplify this area of employment law by bringing all the anti-discrimination measures into one place. An individual will be able to look at just one act to discover their rights.

David Green, head of employment and pensions at City firm Charles Russell, applauds the bill’s attempts to ‘de-clutter’ the law and achieve greater equality.

‘From an employment lawyer’s perspective, I would like to see the existing legislation consolidated, simplified and harmonised,’ he says. ‘I think it is important for the government to use the Equality Bill to iron out the discrepancies which exist at the moment between the different discrimination strands so that the legislation is consistent in all respects.’

At the moment, he says, there are many inconsistencies, such as the different test for indirect race discrimination based on colour or nationality, and the difference of interpretation in cases of direct discrimination. In terms of direct discrimination, in some strands the discrimination must relate to a characteristic of the victim themselves – such as in the case of disability discrimination – while in other strands the scope appears to be wider, such as in the case of sexual orientation, religion or belief.

One of the fundamental tenets of the proposed legislation is to demand more transparency from employers so that the extent and limitations of current levels of equality and diversity are visible. In the private sector, a new quality mark will be introduced to encourage transparency.

According to the government, unequal pay persists because the issue is swept under the carpet. Contractual clauses forbidding employees from discussing what they earn will be banned in both the private and public sectors under the bill. Some claim this will open a can of worms because staff will be able to compare wages and challenge employers who pay them less. This seems unlikely in the UK environment where people do not like to discuss money – few people currently have such gagging clauses in their contracts, but very few discuss remuneration with colleagues. It is doubtful whether the provisions in the bill will effect a culture change.

Public bodies are already under a legal duty to actively promote equality. The equality duty exists for gender, race and disability, and this will be extended to cover religion and belief, age, gender reassignment and sexual orientation.

Government contracts

According to government figures, the public sector spends £160bn every year purchasing goods and services from the private sector, and has contracts with 30% of UK companies. Indirectly, these companies will find themselves subject to the equality duty, which will requires public bodies to tackle discrimination and promote equality through their purchasing functions so that practices to encourage diversity will become more important to winning government contracts.

Large firms and public bodies will be obliged to conduct compulsory pay audits and evidence will be published. While this may help transparency, equal pay issues are sophisticated, and simply publishing comparative and average pay scales will not address the underlying problems.

Hannah Kewley, director of recruitment consultants Sellick Partnership, which specialises in placing lawyers, feels that the Equality Bill has missed a huge opportunity to eradicate discrimination against women. ‘The bill fails to address the question mark over women going for a job and whether they will go on maternity leave,’ she says. ‘There should also be more provisions for working flexibly, which will allow mothers to work.’

Age regulations will be extended to include provision of services, particularly in relation to areas exempt under current law, such as information about insurance and other financial services, or accessing NHS treatment. Doctors will still be able to refuse treatment on medical grounds.

In a joint statement, the charities Age Concern and Help the Aged welcomed moves to ensure equality for older people. Age Concern’s director general Gordon Lishman said: ‘The government’s decision to use the Equality Bill to outlaw age discrimination is fantastic news. It sends a clear signal that ageism should be taken as seriously as any other form of discrimination. This legislation will transform the lives of millions of older people by giving them the same opportunities to participate in society as everyone else.’

The bill will also give powers to employment tribunals so that, in ruling on individual cases, they can also make recommendations that will benefit everybody in the workforce by stopping similar types of discrimination recurring.

The most controversial aspect of the new bill is the ability to use ‘positive action’ to tackle disadvantage. The government says that this does not mean positive discrimination will be permitted – a person will not be awarded a job simply because they are black, disabled or a woman, regardless of their skill or qualification. However, employers will be able to take under-representation into account when they are faced with a choice between two equally qualified candidates.

This will, in fact, be a difficult practice to introduce for employers who will only be able to use ‘positive action’ when competing candidates have the same level of skills and experience, and only then where there is evidence of a group being under-represented. Where there is a thorough and objective assessment process, it is hard to see when there will be two or more ‘equal’ candidates, since the process should provide clear evidence of the best candidate for a role.

Kewley is doubtful that there will ever be a position where there will be two ‘equal’ candidates. She says: ‘The skill-set is obviously massively important in selecting the right candidate, but the personality fit also has to be brought into consideration. If soft skills have to be written into the job specification, then so be it.’

It is important to note that the bill does not give employers the right to use shortlists drawn from an under-represented group, nor does it confer the right to openly recruit by reference to under-representation.

Charles Russell’s Green feels that positive action is most likely to be used in the public sector and in larger organisations where under-representation is very clear. He also believes that it will not open up potential claims from aggrieved job applicants – either because they feel that an employer should have used its discretion to discriminate because their race or gender is under-represented at a particular organisation, or because, as a ‘non-minority’, they feel that they have been passed over for a job.

‘The white paper makes it clear that this type of positive action will be voluntary, that it is not about employment quotas and won’t allow people to promote one candidate above another if that person is less suitable,’ Green says. ‘Employers will be free to choose whether to take under-representation into account, but will not be under an obligation to do so. Therefore there is no means of challenging or enforcing this should the employer decide not to take under-representation into account.’ Discrimination is not just about race, gender or age. The huge disparity between working conditions and benefits for temporary agency staff is a problem that has been acknowledged in the EU for some years. One recent study, Agency Working in the UK: What do we Know?, published in May 2008, found that agency workers are paid significantly less and have much lower levels of job quality than directly employed staff.

Agency workers are less satisfied in their jobs, have less variety and discretion over their work, are less likely to learn new things at work and are more likely to be underusing their skills in comparison with other workers. They are also less likely to be involved in decision-making at work and are less likely to be promoted. Two thirds of agency workers are in clerical, semi-skilled and unskilled occupations, while only one in five is found in managerial and professional occupations.

The plight of agency and temporary workers is not, however, contemplated by the Equality Bill. In March 2002 the European Commission published proposals for a directive on the working conditions of temporary (agency) workers. The proposals were to provide equal treatment to temporary agency workers so that they would receive the same pay and basic working conditions as comparable permanent workers in the company. Temps would also be entitled to the same redundancy and unfair dismissal protection as permanent employees.

Since then the EU Council of Ministers has failed to adopt the directive due to a minority group of countries (led by the UK) opposing the wording of the draft. The directive last went before the Employment Council in December 2007 with last-minute compromises limiting the effect on pay and extending the grace period before rights cut in. It failed to get sufficient support for adoption.

Draft directive

Despite the lack of a directive, many EU member states have now introduced measures giving agency workers equal treatment rights. In the UK, the government has said that it will support the underlying principles of the directive. In May 2008 the government announced that agreement had been reached between the Confederation of British Industry and the Trades Union Congress. This will allow legislation to level the playing field between agency workers and their directly employed colleagues after 12 weeks of employment. It is hoped that this will pave the way to reaching agreement in the EU on the draft Agency Workers Directive.

How this will affect law firms hiring agency workers, including locum solicitors, is currently anyone’s guess, but at least employers at law firms will not have to deal with the outcomes until around 2010.

Under the agreement, after 12 weeks in a job, an agency worker would be entitled to ‘equal treatment’ – that is ‘basic working and employment conditions’ such as pay, and holiday, that would apply had the worker been directly and permanently recruited. Temps would be entitled to equal access to collective facilities, such as canteens, childcare facilities and transport services. There would be an obligation to inform agency workers about permanent employment opportunities with the end-user and appropriate penalties for non-compliance. The agreement was fed into EU discussions between the ministers on the Employment, Social Policy, Health and Consumer Affairs Council in June 2008.

The EU agreement on agency workers derived from those discussions will now go to the European Parliament, which is expected to adopt it before spring 2009. UK agency regulations are likely to be implemented in April or October 2010.

The agreement does not appear to resolve the issue of an agency worker who has been working for the same end-user for more than a year and is unfairly dismissed.

The Equality Bill arguably offered the ideal opportunity to bring in protection for agency and temporary workers and clarify the legal position, but that opportunity has not been taken.

The government’s stated philosophy is one of fairness for all, but employment lawyers might well consider that the failure to address the problems concerning agency and temporary workers in the Equality Bill suggests that all workers are equal, but some workers are more equal than others.

Katie Paxton-Doggett is a freelance journalist