RESEARCH PAPER 09/42 Equality Bill 7 MAY 2009 Bill 85 of 2008-09 Legislation to outlaw discrimination has existed for over 40 years. Typically, new Acts have had as their focus one area of policy, for example, pay, equal treatment of women, race discrimination etc. Almost inevitably, the body of current law, introduced piece meal over such a long period, has developed inconsistencies of both content and approach. As well as introducing new requirements one of the main aims of this Bill is to harmonise existing law into a more coherent whole. Vincent Keter BUSINESS & TRANSPORT SECTION WITH CONTRIBUTIONS FROM, LOUISE BUTCHER, RICHARD CRACKNELL, TIMOTHY EDMONDS, OONAGH GAY, CHRISTINE GILLIE, HELEN HOLDEN, ALEX HORNE, SUE HUBBLE, RICHARD KELLY, STEVEN KENNEDY, ADAM MELLOWS- FACER, VAUGHNE MILLAR, BRYN MORGAN, JO ROLL, LOUISE SMITH, DJUNA THURLEY AND WENDY WILSON HOUSE OF COMMONS LIBRARY Recent Library Research Papers include: List of 15 most recent RPs 09/27 Coroners and Justice Bill: Committee Stage Report 19.03.09 09/28 Geneva Conventions and United Nations Personnel 20.03.09 (Protocols) Bill [HL] [Bill 69 of 2008-09] 09/29 Members’ pay and the independent review process 31.03.09 09/30 Economic Indicators, April 2009 08.04.09 09/31 Members since 1979 20.04.09 09/32 Unemployment by Constituency, March 2009 22.04.09 09/33 Apprenticeships, Skills, Children and Learning Bill: Committee 23.04.09 Stage Report 09/34 The financial crisis in the US: key events, causes and responses 23.04.09 09/35 Russia’s Military Posture 24.04.09 09/36 Russia and the West 24.04.09 09/37 Social Indicators 24.04.09 09/38 Direct taxes: rates and allowances 2009/10 27.04.09 09/39 Policing and Crime Bill: Committee Stage Report 29.04.09 09/40 Economic Indicators, May 2009 06.05.09 09/41 Green Energy (Definition and Promotion) Bill [Bill 15 of 2008-09] 05.05.09 Research Papers are available as PDF files: • to members of the general public on the Parliamentary web site, URL: http://www.parliament.uk • within Parliament to users of the Parliamentary Intranet, URL: http://hcl1.hclibrary.parliament.uk Library Research Papers are compiled for the benefit of Members of Parliament and their personal staff. Authors are available to discuss the contents of these papers with Members and their staff but cannot advise members of the general public. We welcome comments on our papers; these should be sent to the Research Publications Officer, Room 407, 1 Derby Gate, London, SW1A 2DG or e-mailed to [email protected] ISSN 1368-8456 Summary of main points Consultation responses to the proposals contained in the Bill reveal the wide range and depth of issues and interests affected. They represent significant debates that have evolved over a long period of time. Many of the issues raised are embedded in levels of legal complexity that may be unfamiliar outside legal and academic practice. The legislation that the Bill seeks to consolidate in a single statute runs to many thousands of pages. Much of this is intended to be replicated in the Bill, although in many cases not in the precise form it appears in the original. In addition, there are also changes and adaptations which are proposed. Some provisions are entirely new. The changes are largely intended to address entrenched inequalities or areas where progress is seen to have been slow. The need for simplification and harmonisation arises out of an uneven process of legislative development stretching back over 40 years. This has met with growing calls for a framework that capitalises on similarities in the basic concepts that have nevertheless generated differing legislative wording, whilst maintaining the necessary differences in terms of the interests concerned. The Bill groups these together as ‘protected characteristics’ sharing common as well as special provisions and exceptions. These are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. The significant provisions on age extend discrimination protection outside the workplace. The detail of how this will work, particularly in the areas of financial services and health and social care, have yet to be determined. The provisions will not extend to those under the age of 18. The Bill also preserves the permission for mandatory retirement after a certain age in contracts of employment, an issue which is currently the subject of legal challenge awaiting final decision by the High Court. Some would like to see the Bill extend prohibition against mandatory retirement to all age groups. The insurance industry retains some of its existing exemptions from discrimination but exemption from age discrimination is not part of the Bill. In the field of disability, the Bill seeks to address the outcome of London Borough of Lewisham LBC v Malcolm which is of fundamental significance for disability rights. The Bill seeks to address the impact of this case which is generally seen as having weakened discrimination protection. The Equality and Human Rights Commission is critical of the Bill’s proposals which rely on the concept of ‘indirect discrimination’. The Bill’s wording of direct discrimination provisions reflects the outcome of another important disability discrimination case: Coleman v Attridge Law. This case clarified that disability discrimination protection extended by association to a mother who cared for her disabled child. The Bill accordingly clarifies protection against discrimination by association. Some of the Bill's provisions address different requirements that apply in disabled access to transport. There are also provisions affecting schools and further and higher education institutions. For example, protection from discrimination on the grounds of gender reassignment is extended to school pupils in the Bill. There are also new specific protections for mothers who are breast-feeding. Discrimination in the terms of membership and benefits for private clubs and associations is prohibited by the Bill with some exceptions. Harmonised provisions defining indirect discrimination covering all protected characteristics would, if enacted, simplify the current position in race discrimination legislation. The Bill’s unified public sector duty, intended to promote equality in public policy and decision-making, is extended to the protected characteristics of sexual orientation, age and religion or belief. There are also specific provisions intended to assist the use of public sector procurement as a technique to positively impact inequalities in the private sector. A new public sector duty is proposed addressed to socio-economic inequalities. The current legislation addressed to sex discrimination follows two distinct legislative models which are preserved in the Bill. Separate provisions cover equal pay and terms and conditions of employment. Many would like to see a more fundamental reform of sex discrimination in equal pay legislation in light of the difficulties and complexities generated in legal claims for equal pay. This might involve the possibility of collective legal actions. The Bill contains a power to introduce legislation requiring that employers review gender pay differences within their organisations and publish the results. These moves have been criticised by business interests. The Government has indicated its intention to provide for “multiple discrimination” protection for claims based on multiple combined protected characteristics. New provisions may be added to the Bill during its passage through Parliament. The Bill extends the permission for positive action in favour of disadvantaged groups in employment to include recruitment and promotion. Some changes are made to the way that individual claims are enforced, such measures allowing cases to be consolidated between courts and tribunals. Employment tribunals are also given wider powers to make recommendations for the collective benefit of employees. The Bill would allow a Minister to amend UK equality legislation to comply with European law without the need for primary legislation. The Bill extends the period for which all-women shortlists may be used for Parliamentary and other elections until 2030 and will also allow parties to reserve places on shortlists of candidates for people on the grounds of race or disability. Shortlists comprised solely of people selected on these grounds will not be allowed. Territorial extent: the Bill forms part of the law of England and Wales. It also, with one exception, forms part of the law of Scotland. There are also a few provisions which form part of the law of Northern Ireland. Current and subsequent versions of the Bill and explanatory notes can be downloaded from the Parliament website which also gives links to debates, proceedings and transcripts of evidence: http://services.parliament.uk/bills/2008-09/equality.html CONTENTS I Introduction 11 A. Establishing a new legal framework for equalities legislation 11 B. Equality strategies 11 C. Consultation process 13 D. Key documents and legislative references 15 E. Commonly used abbreviations 16 F. Publication experiment 16 II The Bill 17 A. Purpose clause 17 B. Socio-economic inequality public sector duty: clause 1 19 C. Protected characteristics: clause 4 19 D. Direct discrimination: clause 13 20 1. Association 21 2. Intersectional discrimination 21 3. Differences to be retained 23 4. Comparators 24 E. Indirect discrimination: clause 18 24 1. Background 24 2. Definition 25 F. Discrimination arising from disability: clause 14 26 1. Background 27 2. Malcolm: The facts 27 3. The initial hearing 28 4. The Court of Appeal 28 5. House of Lords 29 6. The implications of Malcolm 29 7. Consultation on a solution 30 8. The Bill 32 G. Pregnancy and maternity discrimination: clauses 16 - 17 34 H. Reasonable adjustments: clause 19 37 1. The duty 37 2. Anticipatory duty 38 I. Harassment: clause 24 39 J. Victimisation: clause 25 40 K. Services and public functions: clause 190 and schedule 3 40 1.