According to the Government, the Equality Bill will promote
equality and fight discrimination in all its forms. Much has been
written about it since its publication in April. The focus has been
on contentious issues like the scope for positive discrimination in
the event of a recruitment tie-break and the duty on employers with
more than 250 staff to declare their equal pay gap.
Opinion is divided on the merit of these provisions; but the
question we hear from clients is this: will they ever become
law?
That is understandable: the earliest the Equality Bill can come
into force is May 2010, though we're
told by the Government Equalities Office that it
probably won't happen before autumn 2010. We know that there must
be a general election by May 2010 at the latest, so what will
happen if David Cameron's party takes office, as opinion polls tell
us it will? Will they scrap the law altogether, or parts of it?
Conservative MP John Penrose, who sits on a committee that is
studying the Bill,
says that the new law could become "an opportunity for
yards and yards of extra red tape to strangle our economy".
Scrapping the entire Bill seems unlikely – he says "most of the
bill is fine" – but he makes clear his party's objections to the
detailed provisions on age discrimination and equal pay.
So we should expect a Conservative Government to scrap or amend
significantly the most contentious elements of the Bill.
That political debate, however, is a commercial red herring.
Key elements of the Bill simply codify what happens in business
today. The Bill proposes that the existing duties on the public
sector to promote sex, race and disability equality be extended to
include religion or belief, sexual orientation and age.
This is of real commercial relevance to public and private
sector alike – because the public sector must ensure that any
private sector contractor complies with these duties to promote
equality.
In reality, the Bill codifies what we already see in practice.
Companies in the construction sector, support services sector or
technology sector need to demonstrate how they can support the
public sector in meeting its obligations not just under existing
equality law, but also under anticipated equality law.
On the other side, Central and Local Government, Universities
and Healthcare sectors all want to include commitments about
equality and diversity in their specification of services and
contractual terms.
While parts of the banking sector are part owned by the
Government, the same is true there. On one recent pitch to a bank,
a client told me that the requirements in relation to equality were
longer than the specification of services.
Because this is happening already, whether the Equality Bill
becomes law or not is a sideshow. Working out how to comply with
the duties to promote equality in their expanded form makes a
difference now to winning work.
We have helped clients with this – delivering tailored training
programmes in-house that focus on what equality at work means;
putting in place the right policies and procedures; demonstrating
how to conduct meaningful impact assessments; and offering guidance
on what action to take based on these.
So a key aspect of the extension of equality law already applies
in practice. The focus should be on that more than on what may
be.
By Selwyn
Blyth, an employment law partner at Pinsent Masons,
the law firm behind OUT-LAW.COM.
Pinsent Masons will be running a series of half day seminars
at its offices across the UK during November about the Equality
Bill and the interface between the public and the private sector on
the procurement of services. For details, email hayley.dalton@pinsentmasons.com
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