The Equality Bill –what will it mean to you?

Introduction

The Equality Bill (the “Bill”) has been heralded as a landmark piece of legislation and if passed, will change the landscape of British equality rights. Published in April 2009, the Bill combines current laws on disability, sex, race and other grounds of discrimination into one single piece of legislation. The Bill has just passed its third reading in the House of Lords and is almost certain to become law in October 2010. There are already consultations on draft Codes of Practice and non-statutory guidance which will accompany the Bill. In this article we focus on an overview of the legislation.

What will the Equality Bill mean to you?

The Bill applies to all areas of activity: from employment to education, from housing to service provision, there is no area of life that will not be affected by the new Bill. The Bill will apply to England, Wales, Scotland but not Northern Ireland.

The protected characteristics

Under the Bill a person is not entitled to treat another less favourably because of a “Protected Characteristic”. A “Protected Characteristic” includes age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race (including ethnic and national origin), religion or belief, sex and sexual orientation. It will also include equal pay between men and women. Less favourable treatment can also be on the grounds of a person’s actual characteristic, perceived characteristic or stereotype or because of a person’s association to someone who has a protected characteristic.

Multiple characteristics?

Claims for discrimination on two combined grounds (but no more than two) are to be allowed - e.g. discrimination for being a disabled woman, thus avoiding claimants bringing multiple claims against an employer.

Prohibited conduct

Prohibited conduct includes direct discrimination, indirect discrimination, disability discrimination (including a failure to make reasonable adjustments), victimisation and harassment.

Harassment - The definition of harassment is the same across all areas of discrimination. The Bill protects against 3 types of harassment: (1) sexual harassment; (2) harassment because of a protected characteristic; and (3) harassment where someone submits to/rejects sexual harassment. There is a new focus on preventing "unwanted conduct which has the purpose or effect of violating a person's dignity or creating an intimidating or hostile environment". It applies to conduct which is "related to" a protected characteristic thereby including someone who, for example, is harassed because a relative of theirs is homosexual.

[Pregnancy and maternity, marriage and civil partnership are excluded from the definition of harassment].

Protection from harassment has been further extended so that the employer can be held liable for harassment by a third party, such as a customer or contractor. This will apply if an act of harassment has occurred on at least two earlier occasions and the employer has failed to take reasonably practicable steps to stop it.

Disability Discrimination

Disability discrimination has been extended to cover a person who has a disability, who had a disability, someone perceived to have a disability or someone associated with another who has a disability. The definitions of disability discrimination remain the same as under the 1995 Act; however, protection has been increased.

Remedying the “Malcolm principle” - New ways to claim for disability discrimination are to be introduced - 'discrimination arising from disability' and 'indirect discrimination'. These would replace 'disability-related discrimination' which was very severely curtailed by the House of Lords decision in London Borough of Lewisham v Malcolm. Rather than looking at the reason for the treatment, the question to be considered is whether the disabled person has been treated less favourably because of a consequence of their disability (i.e. long term absence). There is also no need to provide a comparator.

Objective Justification Test

A single objective 'justification' test will replace the different tests currently used in separate anti-discrimination legislation. Direct discrimination, victimisation, harassment and a failure to make reasonable adjustments can never be justified and this remains the same (with the exception of age discrimination). However, employers may seek to justify indirect discrimination and direct age discrimination. To rely on the justification defence, the employer/service provider etc will have to show that its conduct is a 'proportionate means of achieving a legitimate aim'. Although not defined under the Bill, definitions come from EU law where “legitimate” would refer to an aim which is legal, real and objective, whilst “proportionate” would refer to something which is appropriate and necessary.

What happens next?

The Bill will now return to the House of Commons to debate some of the key changes, which included:-

Adding a power to outlaw caste discrimination.
Removing the prohibition on Civil Partnerships taking place in religious premises.
A ban on asking for health and disability information prior to making a job offer. This will stop employers screening job applications to avoid interviewing people with disabilities.

We will continue to report on any further developments in the coming months; however, with changes on the horizon employers should be aware of the proposed changes.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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