Harriet’s law: the Equality Bill

The Equality Bill published yesterday does quite a lot of things: it aims to replace existing discrimination law on sex, race, age and so on, and update it, harmonising the protection given to each “protected characteristic”, which in many cases means extending protection. For instance, something that’s been hardly commented upon is the widening of the public sector equality duty in clause 143 to cover age, sexual orientation, religious discrimination and discrimination against transsexuals. But some of the very new provisions in the Bill have already attracted attention – and it’s those I want to focus on.

First, the absolutely new public sector duty regarding socio-economic inequality in clause 1(1):

An authority to which this section applies must, when making decisions of a strategic nature about how to exercise its functions, have due regard to the desirability of exercising them in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage.

I’m not sure what I think about this. I’m very much of the view that economic inequality is the big unfairness in British life that is often ignored in favour of sex and race discrimination, and especially “equality of opportunity”, which is all some people can imagine equality consists of. I’m glad someone is government is concerned about inequality generally and is doing something about it. But at the same time, I’m not sure imposing abstract duties on local authorities and others is really an effective means of addressing the problem. I worry that this is just one more impact assessment councillors will have to go through before making decisions, and will contribute further to the hemming-in and depoliticisation of local government.

By the way, I think the explanatory notes are a bit misleading about clause 3 and enforcement: although individuals will not have any private law cause of action for alleged breaches of the duty, they will be able to challenge councils and health authorities in public law, by judicial review.

The most interesting new provisions are about employment, though, and although they catch all the protected characteristics, in reality they’re aimed at ensuring equal pay and equal treatment for women.

I welcome clause 72, about discussions with colleagues, which makes unenforceable any ban on discussing pay. Or rather, it makes them unenforceable in some circumstances: it means you can safely disclose your salary or ask a colleague about his or her pay in the context of a discussion of potential sex or race discrimination, etc. – but not otherwise. I wish it had gone further, and made secrecy clauses unenforceable in all circumstances, and I wonder why the Bill doesn’t aim at that, to be honest.

I also wholeheartedly support clause 73, on gender pay gap disclosure, which will allow ministers to require firms employing more than 250 people to publish annual statistics on the pay gap between men and women. As Polly Toynbee says in today’s Guardian, employers who say such statistics do not reveal unfairness entirely miss the point. It’s not just about whether people in the same job are paid the same; fairness is also about making sure men and women aren’t systematically working in different jobs paid at different rates. In any event, the government only intends to impose these rules in 2013 if employers don’t publish the figures voluntarily; let’s see if they do. And if David Cameron’s Conservatives, if they get in, leave these provisions in place, as I think they should.

I’m less sure about clause 153, on positive action in recruitment and promotion. This would allow appointment of a woman candidate for a job (or a black, gay or disabled candidate, or a young, old, transsexual or married candidate) where an employer thinks that group is disadvantaged or under-represented and the candidate is as qualified as others. The employer will not however be allowed to do this as a policy. Hm. I’m don’t take a purist stance of opposition to “positive discrimination” in principle – and whatever the government says, this clause certainly is aimed at allowing what most people mean when they talk about positive discrimination. But I do have some concerns.

First, I don’t see how any employer can rationally do this yet not have a “policy” of doing it. To avoid having a policy, you’d have not to have decided what to do until actually faced by equally qualified candidates; but if you hadn’t addressed this beforehand, you might not have gathered sufficient information about your workforce to enable you to reasonably conclude there’s disadvantage or under-representation, and you’d have to agonise, probably with legal advice, about what was lawful and what was right, right in the middle of a recruitment exercise. I don’t think that’s realistic. Plus, if there’s no policy then each decision to positively discriminate would be ad hoc in an individual recruitment or promotion exercise. But can that be fair? It means you could be turned down for a job ultimately on grounds of your sex or race, but someone else, applying to the same employer for a similar job, might not have positive discrimination applied to them. Unequal treatment is built in, bizarrely. I think the provision is practically inviting employers to adopt a tacit policy of positive discrimination in order to avoid these problems while staying within the letter of the law.

Next, I’m not completely convinced this provision complies with EU law. While EU legislation does permit positive action (see Article 3 of Directive 2006/54 and Article 157 of the EC Treaty), it doesn’t permit any policy of favouring women at the point of recruitment – presumably that’s why the policy ban is written in to clause 153. And, more importantly, I think it’s far from clear, looking at cases like Abrahamsson and Briheche for instance, that EU law allows an under-represented group to be favoured in any circumstances at the point of recruitment, policy or no policy. I think ministers are taking a legal risk here – as they’re entitled to do, to be fair – and it’ll be interesting to see whether clause 153 really is compatible with European law. They’ve probably concluded they’re at least safe from damages actions on the basis that this is not obviously contrary to EU law, and their anti-sexist intentions are good – and are willing to to see if clause 153 is sustainable.

Finally, while I’m not opposed to positive discrimination, I do mistrust it. As a lawyer I think it’s interesting how decision-makers of all kinds, when told they need to and can apply a burden of proof, tend to seize on this as the answer when in doubt about what to do; and how easy it is to find yourself in doubt when you know at the back of your mind that you can apply a simple tie-breaking rule. I fear that clause 153 might be tacitly used as an easy tie-breaker, allowing employers too readily to conclude candidates are equally qualified, when they may not be.

Two cheers for Harriet and her Equality Bill, then.