Employment Law Update: The New Equality Bill

Positive Action and Harassment

Jackie LaneUniversity of Huddersfield

Why an Equality Bill?

• The White Paper “Framework for a Fairer Future – the Equality Bill” states that the government’s commitment to equality is:

• Necessary for the individual• Necessary for society• Necessary for the economy

Time to de-clutter the law

• 40 years of legislation• 9 major pieces of legislation• 100 statutory instruments• A “dog’s breakfast”

Current statistics

• The gender pay gap means that a woman’s pay is on average 12.6% less per hour than a man’s

• If disabled, you are two and a half times more likely to be out of work than a non-disabled person

• If from an ethnic minority, you are 15.5% less likely to find work than if you are white

Further statistics

• Only one High Court Judge from an ethnic minority

• Only 8% of University Vice chancellors are women

• Only 11% of Directors in the UK’s top 100 companies are women

• No female Asian MPs

Without positive action

• Without significant POSITIVE ACTION, it would take 100 years for ethnic minorities to have the same job prospects

• It would take 70 years to close the pay gap.

Harassment

• A fairly recent addition to the types of discrimination

• It can cause marginalisation of minority groups, distress and possible psychological harm

• Protection from other sources – defamation, trespass to the person, assault and battery, Protection from Harassment Act

What are bullying and harassment?

• Harassment – unwanted conduct affecting the dignity of men and women in the workplace

• Demeaning and unacceptable to the recipient• Bullying – offensive, intimidating, abuse of

power• Examples: unfair treatment, gossip, ridiculing,

making threats, blocking promotion

Results of bullying

• Anxiety• Humiliation• Loss of self esteem or self confidence• Fear• Stress• Illness• Absence from work• Resignation

Remedies?

• General bullying and harassment – dealt with through internal procedures or, following resignation, action for constructive dismissal

• Legal remedies only apply where harassment is on the grounds of a protected characteristic

An extensive problem?

• Sexual harassment – 0.9% in 2005• Racial harassment a continuing problem

according to TUC report 1998.• Sex discrimination generally – 18,637 cases

dealt with by tribunals 08/09 – down 10,000 in 2 years

• Race discrimination – 4,983 – up from 3,780 06/07

Current protection

• All areas except religion or belief, sexual orientation and disability outside the workplace

• All areas covered within the workplace – religion or belief, sexual orientation, age, sex, race and disability.

Aims of the Equality Bill• To achieve uniformity across all protected

characteristics• Definition remains virtually unchanged:• Clause 24 gives three types of harassment:• 1. Unwanted conduct – purpose or effect –

intimidating, hostile, degrading, humiliating, offensive environment – or violating dignity

• 2. Unwanted conduct of sexual nature with above purpose or effect

• 3. Less favourable treatment as a result of failure to submit to sexual harassment

Purpose or effect

• Effect – unintentional conduct is covered• Tribunal must take into account:• A. Perception of complainant• B. Other circumstances of the case• C. Whether it is reasonable for the conduct to

have that effect• Thus, although law is not substantially altered,

it is much simplified

POSITIVE ACTION

• Permissible in limited circumstances• Controlled by EU law• Existing positive action measures are limited

(see accompanying paper)

Proposed changes

• S42A Sex Discrimination Act 1975 – makes lawful arrangements to reduce unequal numbers of elected men and women in political parties – clause extended from 2015 to 2030

• Less than 1 in 5 MPs are women• 14 EU states have greater female

representation in national Parliaments• 68th in the world

Disability

• Not like other anti-discrimination laws – DDA protects disabled persons against discrimination and it is therefore lawful to give such persons preferential treatment – most positive action measures already used

Age, sex and race

• All provide for limited positive action in terms of “encouragement” and “training” to disadvantaged groups.

• Religion, belief and sexual orientation – preferential treatment permissible only where this is a genuine occupational requirement

Clause 152 and 153

• Clause 152 – general• Extends to ALL protected characteristics• Provides that Bill does not PROHIBIT positive

action to reduce potential disadvantage, reduce under-representation in certain areas, and meet their particular needs.

• Aims to ENABLE these groups to encourage PARTICIPATION in certain activities

Examples

• Providing training or health services to certain groups e.g. A school could provide extra English classes for white males if they were underperforming

• E.g. If Asian women more prone to breast cancer due to lower take-up of screening, a local NHS trust could directly target this group

• Regulations will specify what is NOT allowed

Recruitment and Promotion

• Clause 153• Permits an employer to take into account a

protected characteristic in decisions involving recruitment or promotion IF they are at a disadvantage or under-represented

• Recruitment - Employers can give preference to under-represented candidate if all applicants are equally well qualified

• Promotion - Could promote a female candidate in similar circumstances

Conclusion

• Bill simplifies existing legislation• Has addressed issues of positive action and

harassment• Overall a restrained Bill, likely to have little

impact• Close the pay gap in under 70 years?

QUICK QUIZ

• Which of the following will be lawful under the Equality Bill?• 1. A Chief Constable wants her (3 in 2007) force to be more

representative, so advertises for “female only” police officers.• 2. An NHS Trust is recruiting new nursing staff. The HR officer

has short-listed 3 equally well-qualified candidates, two white and one Asian. Due to under-representation of Asian workers in the trust, she appoints the Asian candidate.

• 3. The local Labour party organisation has drawn up a female-only shortlist of parliamentary candidates

• 4. The local BNP party has drawn up a whites-only shortlist of parliamentary candidates