UNISON Briefing on the Equality Bill by mifei


									                  A UNISON Briefing on the Equality Bill
                               May 2009

UNISON has welcomed the introduction of the Equality Bill: we have long
campaigned for harmonised and comprehensive equality legislation. Current
equality law is in need of reform and updating. In particular equal pay
legislation is no longer fit for purpose.

The Equality Bill was introduced into Parliament on 24 April 2009. The
Government state that its key features are as follows:

       1.     Introduction of a new public sector duty for strategic public
              bodies to consider reducing socio-economic inequalities;
       2.     A new Equality Duty on public bodies;
       3.     The use of public procurement to improve equality;
       4.     Banning of age discrimination outside the workplace;
       5.     Introduction of gender pay reports;
       6.     Extension of the scope to use positive action;
       7.     Strengthening of the powers of employment tribunals to make
              recommendations in discrimination cases;
       8.     Protection for carers by banning ―associative‖ discrimination;
       9.     Protection for breastfeeding mothers;
       10.    Banning of discrimination in private clubs;
       11.    Strengthened protection from discrimination for disabled people.

The Bill will apply to England and Wales – and all but one part (the socio-
economic duty) to Scotland. It will not apply in Northern Ireland.

UNISON: Summary
Our priorities for an Equality Bill are:

       Equal pay – measures to close the gender pay gap and to reform
        the failures of equal pay law;
       An enhanced and comprehensive public sector duty across all
       Procurement – public spending as a lever for public good.

There are many measures in the Bill which we welcome. However we
remain concerned that the proposals will not go far enough to close the
gender pay gap. Whilst the commitment to transparency is welcome, in
reality the proposals will not lead to full pay transparency and many
workers will be excluded from the limited measures proposed. Pursuing
an equal pay case to tribunal is a long complex and stressful process
which rarely delivers equal pay for women. Little in the Bill will improve

Some more detail -
1. A Socio-economic duty
There will be a new duty on Government Ministers, departments and certain
public bodies such as local authorities and strategic health authorities to
consider what action they can take to reduce the socio-economic inequalities
people face.

The duty will affect how public bodies make strategic decisions about
spending and service delivery. The Government will issue guidance, which
public bodies will be obliged to take account of, prior to the new duty taking
effect. This duty will not apply in Scotland and in Wales it will be for Welsh
Ministers to decide which public bodies this duty should apply to.

The duty will not set out specific targets or priorities, and provides for no
enforcement or powers of remedy or rights to transparency for the public.
However an individual whilst not being able to claim damages could bring a
judicial review if she/he believes a public body has not considered this duty.
The provisions are expected to come into force in 2011.

UNISON says:
The principle of this has to be welcome and the introduction of this measure
reflects the complex cross-cutting nature of disadvantage. This new duty
reflects a wider social need for fairness. It is right this duty is not linked to
other public sector duties. Whilst a welcome principle it is unclear what will
happen should an authority not have the will or resources to take action. This
duty should complement other duties.

We look forward to working with Government and strategic public bodies in
the implementation of this new, strategic, duty.

2. A new equality duty on public bodies
Public bodies already have obligations to promote equality and challenge
discrimination on grounds of gender, race and disability. This includes
addressing the gender pay gap for their employees. The Bill will incorporate
these duties into one equality duty which will also cover race, gender, and
disability but will be extended to cover age, sexual orientation, religion or
belief, pregnancy and maternity, and fully cover gender-reassignment.

The Government states: ―The new Equality Duty will require a range of public
bodies to consider the needs of diverse groups in the community when
designing and delivering public services so that people can get fairer
opportunities and better public services.‖

Significantly this new duty will also apply to private bodies that deliver a public
function, for example, a private firm running a prison.

The Government will consult further on the ―specific elements of the duty‖;
this will include gender pay reporting, and the proposals in regards to
procurement ( see below).

UNISON says:
This is a welcome and sensible approach. A single duty across all strands
offers simplicity and clarity. It removes the idea that some forms of
discrimination or disadvantage are less important than others. We believe it is
vital that the specific elements of the duties which spell out what public
authorities must do are maintained. We argue that, although the outcomes
from the duties are what matter rather than process, the process requirements
themselves are also important.

UNISON will be responding to the consultation.

3. Procurement
It is proposed that public bodies will be able to use procurement to drive
equality. It will allow Ministers to specify how public bodies should go about
doing so. This will be subject to further consultation.

UNISON says:
The absence of specific legislation requiring equality considerations to be
included in public procurement processes remains a problem. Too often
contracts are awarded to the lowest bidder and no other factors are taken into
account. Public procurement should be a lever for the public good: at present
it often is not. This measure could go some way to improving this situation.
UNISON will be responding to the consultation.

4. Banning age discrimination outside the workplace
Age discrimination in the workplace is already unlawful. The Equality Bill will
make it unlawful to discriminate against someone aged 18 or over when
providing services or carrying out public functions. However, age appropriate
special provisions such as free bus passes, or specialist cancer screening for
certain age groups, will be able to continue. It is intended that this will sit
alongside the proposed European Council Directive on Equal Treatment
The new law will be introduced gradually from 2012. The health and social
care sectors will not be in the earlier phase.

The Government will consult further on the details of this provision.

UNISON says:
This new provision is welcome and long overdue. However we are concerned
that some key anomalies will remain:

In regards to young workers, UNISON regrets that the Government, rather
than using this Bill to end the age discrimination in the National Minimum
Wage age bands, has again chosen to grant an exception. UNISON‘s position
remains that workers should be paid the proper rate for the job, and
preservation of this discrimination only serves to underline that young workers
are valued less than their older colleagues. The Bill also fails to protect those
under 18 from discrimination in the provision of goods, facilities and services

For older workers, UNISON continues to stress the importance of the
difference between the age when a pension is payable, and the age when

someone retires. We believe in the need to protect the concept of
pensionable age regardless of people being able to work beyond pensionable
age. UNISON is campaigning to keep the pensionable age at 65 or lower.

UNISON notes that the Bill reaffirms the continuation of a Normal Retirement
Age (NRA) of 65 and the right to request to continue to work beyond that.
However UNISON believes that the individual workers should have the right
to work beyond the NRA based on their personal circumstances. Under the
Bill employers will have to provide no reason for refusing such a request
provided they have undertaken the duty to consider six months before the
individual‘s NRA. UNISON further notes that the Government is sticking to its
commitment to review the NRA in 2011, we have concerns that the
Government may see this as an opportunity to force people to work longer to
deal with the ―perceived‖ pensions‘ crisis.

UNISON believes that service related pay and benefits should continue to be
available to motivate staff, reward loyalty and recognise experience. UNISON
represents workers in services where the monetary rewards are not great but
these are offset to some extent by other more attractive conditions of service
such as leave entitlement. We are pleased that the Bill still allows for benefits
based on length of service.

We welcome that people will be protected from discrimination in the provision
of insurance services. With regard to age differences in insurance
calculations, we stress that decisions should be based on actuarial evidence
rather than assumptions linked to age. The Equality Bill refers to ―adequate
evidence‖ and we will be seeking clarity on how this applies.

UNISON will respond to the forthcoming age consultation.

5. Equal pay
The Bill seeks to introduce some transparency into pay and specifically
differences in pay between men and women. The Government plan to do this

      Introducing a power to require reporting on the gender pay gap by
       private sector employers with 250 or more employees. This power
       would not be used before 2013 and it will only be used if sufficient
       progress on reporting has not been made.
      The Equality and Human Rights Commission will be required to work
       with business and unions to develop measures against which private
       sector employers with 250 or more employees will be voluntarily asked
       to report. The Commission will monitor progress on reporting within
       the private sector annually. The private sector therefore has 4 more
       years to voluntarily comply with a potentially limited reporting proposal.
      Introducing powers for Ministers to require public authorities to report
       on equality issues. This will be subject to further consultation but it is
       likely that public bodies with over 150 employees will be required to
       publish annual details of:
       * their gender pay gap;

       * their ethnic minority employment rate; and
       * their disability employment rate.
      Banning secrecy clauses on pay.

UNISON says:
The provisions to enable full pay transparency are limited and therefore
disappointing. We have argued that the only way for women to fully
understand how their pay compares with other workers is for full transparency
via pay audits. In the private sector, despite almost 40 years of equal pay
legislation, employers have another 4 years to provide some limited pay
transparency. Yet evidence suggests that the voluntary approach has not and
will not work.

Further approximately 50% of all private sector workers are employed by
businesses with less than 250 employees. Not even minimum rights to
transparency will be available to them. Likewise for those working in small
public sector bodies with less than 150 employees.

It is right that pay secrecy clauses should be banned, however our experience
tells us that few workers are covered by current pay secrecy clauses.

The gender pay gap is likely to remain stubbornly high and those women who
do go to law to seek equal pay are likely to be involved in lengthy, dated and
complex legislation. There is a need for a more fundamental reform of equal
pay law. Equal pay is the one area of UK discrimination law where claimants
are required to identify an actual comparator in the same employment who is
being treated differently to themselves. Furthermore, the EU Equal Treatment
Directive allows hypothetical comparators. The Bill should therefore allow the
use of hypothetical comparators in discrimination cases where no actual
comparator exists. Currently it is difficult for women in highly gender
segregated employment to point to an actual male comparator.

6. Positive action
This proposal will allow employers to recruit or promote a person from a
disproportionately under-represented group where that person is "as qualified"
as the other candidates, and as long as the employer does not have a policy
of treating persons who share the protected characteristic more favourably
than those who do not share it.

This is not "positive discrimination" - that is, recruiting or promoting people
because they are from an under-represented group even where they are less
qualified than other candidates. Nor will the new rule allow employment
quotas. Neither will there be any requirement on employers to use this power.
It will be for the EHRC to issue advice on this.

The Bill will also allow for employers to target their recruitment advertisements
and to target their training provision to under-represented groups.

Further, the Equality Bill will extend the permission to use women-only
shortlists until 2030. The Bill will also enable political parties, as part of their

process of selecting candidates, to take positive measures to bring on
candidates from under-represented groups. This could include reserving a
specific number of places on every electoral shortlist for Black or disabled
candidates, or organising mentoring schemes for LGBT candidates.

UNISON says:
Whilst this proposal has gained a lot of media attention we believe in reality
very few candidates are identical. However we do recognize the need to
address the chronic under-representation of certain workers in the more
senior/managerial positions.

We welcome the ability for political parties to seek to address the current
imbalance in political representation.

7. Employment Tribunals
The Equality Bill will allow employment tribunals to make recommendations in
discrimination cases which benefit the whole workforce and not just the
individual who won the claim. This will help to prevent similar types of
discrimination occurring in the future. Failure to comply with a
recommendation could be used as evidence to support subsequent similar
discrimination claims.

UNISON says:
This proposal is long overdue. All too often an individual who wins a case at
an Employment Tribunal finds that, although they may be awarded
compensation, nothing changes in the workplace to prevent a recurrence
perhaps being experienced by another person. It may be that the Tribunal
has found evidence of systemic discrimination but can do little to effect
change. For an individual to be able to rely in a subsequent claim on a failure
by an employer to enact a Tribunal recommendation it is essential that
Tribunal decisions are publicly available, for example by being available on-
line. Currently they are not and this needs urgent rectification. Further it is
disappointing that Tribunal recommendations will not apply in Equal Pay
cases: one area where discrimination is most likely to be systemic i.e. a
structural problem rather than discrimination against an individual.

8. Protection for carers
This provision implements the widely hailed decision in the Coleman case –
Sharon Coleman claimed she was unlawfully discriminated against by
association i.e. as a carer for her disabled son. This provision brings our law
in line with this European Court decision. It is currently unlawful to
discriminate against or harass someone because they are ‗linked to‘ or
‗associated with‘ a person who is of another sexual orientation, race, or
religion or belief. But currently the same protection does not apply in respect
of age, disability, sex, or gender reassignment.

The Equality Bill will strengthen the law, protecting all people from
discrimination when they are associated with someone who is protected
themselves, for example, as their carer.

UNISON says:
This provision will greatly assist many women who as well as working often
act as an unpaid carer for relatives and currently enjoy no legal protection.
We also welcome the extension of protection from discrimination on grounds
of association to other grounds.

9. Protection for breast-feeding mothers
The Bill will prevent breast-feeding mothers being forced out of public places.

UNISON says:
This provision is new, long overdue and welcome.

10. Banning discrimination in private clubs
It will be unlawful for associations, including private members‘ clubs, to
discriminate against members, or guests of members invited to a club.
However the Bill will also allow for clubs for people with a shared
characteristic, such as gay clubs, although not for clubs exclusive by colour.

UNISON says:
We welcome this measure.

11. Strengthened protection for disabled people
A recent House of Lords decision (Lewisham vs Malcolm) severely limited the
effectiveness of protection for disabled people. This provision rectifies that
situation and the Equality Bill will provide disabled people with new
protections in law to ensure their rights are broadly the same as they were
before the ruling.

The Bill will maintain the concepts of ―reasonable adjustment‖ and ―disability
related discrimination‖ for disabled people AND introduce protection from
indirect discrimination on grounds of disability.

The Bill will also place a new duty on landlords and managers of residential
properties to make alterations for disabled people where it is reasonable to do

UNISON says:
We welcome these changes as a positive step.

What else does the Bill do?
It introduces new definitions and language:
      A simplified definition of who is a disabled person under the legislation,
        also providing protection for those whose condition can be predicted to
        last more than 12 months; however it retains the requirement for the
        impairment to be substantial. This term has excluded some disabled
        people from protection in law.

      In the definition of direct discrimination, ―because of‖ takes the place of
       ―on grounds of‖.

      There is a new definition of indirect discrimination, which specifies that
       ―a provision, criterion or practice is discriminatory in relation to a
       relevant protected characteristic of B‘s if— (a) A applies, or would
       apply, it to persons with whom B does not share the characteristic; (b)
       it puts, or would put, persons with whom B shares the characteristic at
       a particular disadvantage when compared with persons with whom B
       does not share it; (c) it puts, or would put, B at that disadvantage, and
       (d) A cannot show it to be a proportionate means of achieving a
       legitimate aim.‖

      no longer ―strand‖ or ―ground‖ but a ―characteristic‖. The Bill covers 9
       characteristics - age; disability; gender reassignment; marriage and
       civil partnership; pregnancy and maternity; race; religion or belief; sex;
       and sexual orientation.

      The Bill revises the definition of ‗gender reassignment‘ to make it clear
       that a person does not have to be under medical supervision to be
       protected from discrimination.

UNISON says:
These technical improvements to the law are welcome.


The Bill extends employer liability for third party sexual harassment to all the
other strands. This will reflect the current provisions of the sex discrimination
legislation meaning that employers will only be liable for third party
harassment where such harassment has occurred on at least two previous
occasions, the employer is aware that it has taken place, and the employer
has not taken reasonable steps to prevent it from happening again.

UNISON says:
It is completely unacceptable the harassment has to occur on 2 previous
occasions before there are obligations for an employer to act. This is an ill
thought through proposal and one which needs amending. Also we note with
disappointment that the Bill does not protect from harassment on grounds of
sexual orientation or religion or belief outside the workplace; or protect school
students from harassment on grounds of gender reassignment, sexual
orientation or religion/belief.

What is not in the Bill -
The right to bring ―representative actions‖ in equal pay cases - (under which
bodies such as trade unions or the Equality and Human Rights Commission
could bring proceedings on behalf of groups of individuals). ―Representative
actions‖ are currently under consideration by the Ministry of Justice. UNISON
argues that the introduction of ―representative actions‖ would speed up and
simplify many equal pay cases.

The Bill also does not address ―multiple discrimination‖ although this is
needed. We note that there will be further consultation on this and UNISON
will respond to that consultation.

The Bill does not provide for statutory recognition for trade union equality
reps. This is disappointing but we note that the Government intend to consider
this matter further.

The Equality Bill was introduced in the House of Commons on 24th April,
2009. We expect the second reading to take place in May, with the Bill
entering Commons Committee stage in June. We expect it to reach the House
of Lords at the beginning of the new parliamentary session. Subject to the
approval of both Houses, we expect the Bill to receive Royal Assent in spring
2010. The majority of the Bill should come into force by autumn 2010. Certain
parts of the Bill, such as the socio-economic duty on public bodies, and the
public sector Equality Duty are likely to come into force in 2011. The new law
on age discrimination will come into force in phases starting with those
sectors most ready to comply.

Further Consultation
The Government has announced it will be carrying out further consultation on:
    How to address multiple discrimination
    Proposals for the detailed requirements under the public sector
      Equality Duty
    Age discrimination.

Liane Venner
UNISON Head of Membership Participation
0207 5511 434

For more information on UNISON please visit our web site:

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