Harman, the Secretary of State for Equalities and Minister for Women, announced the publication of a framework for the Equality Bill in Parliament today, though the Bill itself will not be published before October.
Harman said the Bill and its accompanying measures represent "a radical shift in our approach to fighting unfairness and breathes fresh life into our equality agenda."
The Trades Union Congress (TUC) called the Bill "a landmark piece of legislation which, if implemented fully, will help millions of people to reach their potential at work." The Confederation of British Industry (CBI) extended a more cautious welcome to today's announcements, saying it supported the non-legal measures but "would never support unnecessary legislation."
Harman said "we will legislate to give more scope for employers, if they want to increase the number of women or black or Asian employees – to take positive action."
"This will help the police, for example, who want to make more progress on diversity because they know that they can be most effective when they reflect the ethnicity of the communities they serve," she said.
At present the law does not allow an employer to take under-representation into account when it comes to choosing between two equally-qualified candidates. The Bill will change that. The framework document says the Equality Bill will give employers "greater freedom to 'fast-track' or select recruits from under-represented groups, as long as they are equally suitable and there is no fixed rule that this must be done in all cases."
"The new positive action measures will be available to all employers to use on a voluntary basis," says the document. "They are not about employment quotas and will not allow people to promote one candidate above another if that person is less suitable."
The framework document is inconsistent in describing the positive discrimination test: it refers sometimes to "equally suitable" candidates and elsewhere to the more objective test of "equally qualified".
Ashley Norman, an employment law partner with Pinsent Masons, the law firm behind OUT-LAW.COM, said that the positive discrimination plan could prove to be ineffective.
"Unless there are very clear guidelines as to how a business could positively discriminate in certain circumstances, businesses will probably continue as normal," he said. "It would be very difficult to say that two candidates are exactly matched in every way apart from the colour of their skin or their sex and the legislation could potentially lead to claims from those non-minority job seekers who feel they have been passed over for a position."
CBI Deputy Director-General John Cridland said the Government "needs to work with employers to provide practical advice on what they can and cannot do."
Cridland said the debate on equality often misses the point. "Unlawful discrimination in the private sector is not the main reason why inequalities still exist," he said. "The issues are educational and occupational."
Of the pay gap between men and women, Harman told Parliament that "men who work full time still earn 40% more per hour than women who work part time." Government figures suggest that a woman's full time pay is on average 12.6% less than a man's full time pay.
Harman talked of "a new era of openness when it comes to pay. So that women can see – in their own workplace – how much more men get paid than them."
Part of that plan includes employers reporting on gender pay and she said the public sector will lead by example. A new Equality Duty will require public bodies to tackle discrimination and promote equality through their purchasing functions, ensuring progress in the private sector through public procurement.
Cridland said that "making firms that are bidding for government contracts audit their pay would be pointless and would not do anything to improve equality in the workplace."
Existing public sector equality duties require public bodies to consider how to promote race, disability and gender equality through their procurement functions. The new Equality Duty will clarify and strengthen these requirements and increase transparency, according to the framework document.
The Equality Bill also outlaws clauses in employment contracts which prohibit employees disclosing their pay to each other. Government figures suggests that in 2004, 22% of employers did not permit employees to share pay information with their colleagues. The Bill will make it unlawful to stop employees discussing their pay.
Employment Tribunals will also gain new powers. Harman said: "Where an employer has been found to have unlawfully discriminated, we will provide for the Employment Tribunal to be able to make a recommendation applying not just to the successful complainant but to everyone in that workplace."
Currently tribunals can make recommendations where an employer has been found to have discriminated, but only if they directly benefit the person who has been discriminated against. The framework document notes the futility of this: "as around 70% of employees involved in discrimination cases leave the organisation, this ties the hands of the tribunal."
To address systemic discrimination, the Government plans to allow 'representative actions', brought as a single claim by bodies such as trade unions or the Equality and Human Rights Commission on behalf of a group of employees. At present, claims have to be brought by individuals.
The Equality Bill will also contain duties on the public sector to eliminate age discrimination and promote age equality. "And we will take powers to outlaw age discrimination in the provision of goods and services," said Harman.
Secondary legislation passed under the Equality Bill will address the specifics of the age discrimination provisions but broadly it will become unlawful to discriminate against someone because of their age when providing goods, facilities and services or carrying out public functions.
According to the framework report, the Government Equalities Office will also introduce a 'kite mark' for employers who are transparent about reporting their progress on equality.
A paper will be published next month to set out the Government's proposals in more detail. The Government said the Bill will be prepared over the coming months with a view to being introduced in the next parliamentary session which begins in early October.
