Harriet Harman, the Minister for Women and Equality, has recently announced the Government’s proposal that positive action be permissible under the proposed Equality Bill. This will enable employers recruiting staff to choose to employ a female or male candidate over a candidate of the opposite sex, or ethnic minority candidates above non ethnic minority candidates, where the candidates in question have equal ability and qualifications and a particular gender or ethnic minority group is under represented in the workforce. The aim of positive action is to help achieve equality in the workplace through the recruitment of teams that are balanced in terms of ethnicity and gender and/or best reflecting the groups that the team serves.
Also, in an effort to create equality between the sexes with regard to remuneration, the Bill will outlaw clauses in employment contracts that prohibit employees disclosing their pay and will require public bodies to publish gender pay gaps within their organisation.
Background
The single Equality Bill will replace the numerous pieces of discrimination legislation that are currently in force. Amongst other things it is intended to work towards the elimination of prejudice and discrimination, the treatment of all individuals as equals and the promotion of good practice in relation to equality and diversity.
The Bill is to be introduced following a commitment in Labour’s 2005 election manifesto. A Discrimination Law Review was subsequently carried out culminating in the publication of a consultation paper in 2007; A Framework for Fairness: Proposals for an Equality Bill for Great Britain. The paper outlined proposals aimed to simplify, modernise and increase the effectiveness of discrimination law. The period of consultation concluded in the same year with some 4000 responses being received. Following consideration of those responses, the Government’s response to consultation outlining the detail of what will be included in the Equality Bill will be published and this expected around the end of the year.
Comment
Upon the introduction of lawful positive action employers would be prudent to carefully record with evidence what their recruitment objectives are and why, that all candidates have gone through the same recruitment process, the basis for their selection decisions and how those decisions fulfil their objectives. Employers will note that the proposal is that positive action be permissible rather than imposing an obligation on them to take positive action.
Turning to pay secrecy clauses, employers who make use of such terms should review their contracts and policies and remove any offending provisions. A possible impact of the new legislation is that employees who are aggrieved about their level of pay in workplaces where pay secrecy clauses have been relied on to date may be more likely to pursue grievances and tribunal claims as evidence of potential sex discrimination becomes more easily available. Any differentials in pay should therefore be evidently free from discrimination.
Veronica Colegate · July 14, 2008