Employers urged to plan for changes in discrimination law

A law firm has urged employers and HR directors to start planning now, as a matter of urgency, for the Equality Bill and other discrimination law changes, which are likely to come into force during 2010.

Mace & Jones employment law partner, Phil Allen, described the Equality Bill as potentially “the biggest change in discrimination law in a generation”.

He said:

"Employers must not underestimate the depth and scope of this new legislation, which makes several fundamental changes to the law. It is absolutely critical to prepare properly for these changes which cover race, gender, religion and belief, sexual orientation, marital status, pregnancy, age and disability. Taking expert legal advice and conducting an equality audit of your business will ensure you are fully prepared for the changes.

“Businesses and organisations can then put the necessary procedures in place so they are seen as good employers and supportive of equality and opportunity for all. Moreover, being fully prepared helps prevent employers tripping up on the legal changes which could result in costly, time consuming and disruptive disputes with employees."

The Bill replaces more than nine existing laws with more than 100 measures, and will require businesses of all sizes and types to take positive steps to avoid discrimination in the workplace. Mr Allen said an important change in the bill extends the definition of harassment in the workplace.

He explained:

"The law covering sexual harassment in employment by a third party already exists but the bill extends that harassment to race, disability, sexual orientation, religion or belief and age. So employers could now be held liable for harassment by a third party such as customer, client, contractor or even member of the public, patient, pupil or student on these grounds. This applies to all employers and means they are liable if they fail to take reasonable steps to prevent the harassment. An employee will only have to show that the employer knew that they had been harassed by one or more third parties, on at least two occasions previously."

Mr Allen added that the proposal to ban less favourable treatment of employees who discuss their pay or bonuses with other staff, will, for many employers, be the biggest change in practice. Whilst contractual secrecy clauses are uncommon, many employers do not want their staff to discuss differences in pay or 'exceptional' bonuses which may only be paid to some.

"This could lead to lots of claims about equal pay as differences may be more easily identified," he said. "And the more intangible the reason for your bonus or for differences in pay the more likely it is a claim will be made."

Mr Allen stressed the importance of employers keeping a close eye on changes to default retirement ages. He said:

"2010 will also see key changes to compulsory retirement ages; although this measure is not in the Equality Bill it is very much part of the equality agenda. It is unclear exactly what will happen but the Minister for Women and Equality, Harriet Harman, wants to scrap retirement ages altogether. However it is strongly rumoured the default retirement age may be raised to 68 or 70 if it is not abolished. And even if there is a change of Government the retirement age will be reviewed, as the Conservatives are committed to maintaining protections against discrimination in employment. So again it is important employers are aware of, and prepared for, this looming change which will end the current default retirement age of 65."

Other key measures in the Bill, which is likely to become law before May this year, include:

• The Bill proposes that positive action will now be allowed in recruitment. This will ultimately mean that in a tie-breaking situation, when selecting from equally qualified candidates, the employer will be able to choose a candidate from a disadvantaged or under-represented group in the workforce. For example, if a male and a female candidate apply for the same position, the female could be successful in a predominately male company. Recruiting and promoting for merit will remain tantamount and should any company choose to take on a candidate instead of another who is more qualified simply because they are from an under-represented group, this will remain unlawful.
• Requiring private sector employers with at least 250 employees to publish information about differences in pay between male and female employees (with effect from April 2013).
• Widening Tribunals' powers to make recommendations that benefit the whole workforce rather than just applying a remedy to the individual that brought the claim.
• Replacing the public sector race, gender and disability equality duties with a unified duty to promote equality of opportunity across all protected characteristics, which could have a knock-on effect on any business that contracts with public sector bodies.