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Equality Challenge Unit Briefing The Equality Bill – Government response to the consultation On 21 July 2008, the government released its response to the consultation exercise arising out of A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain. The response outlines the government’s position on various aspects of the Equality bill, actions for the future and likely timescales for implementation. Key points drawn from the 211 page response are outlined below. Public duty A new streamlined public sector equality duty will replace the race, disability and gender equality duties. The duty will be extended to cover age, sexual orientation and religion or belief, and will explicitly cover gender reassignment. The existing structure of general and specific duties will be retained, which leaves open the possibility of application of different duties to different sectors. The government will be consulting on which public bodies should be subject to these requirements under legislation. The Equality and Human Rights Commission will produce statutory codes of practice and non-statutory guidance on the application of the equality duty to help public bodies implement the new duty effectively in all their functions. Public bodies will be required to comply with the equality duty in their role as employers by reporting on the following inequalities: • gender pay • ethnic minority employment; and • disability employment. The government has decided to establish a cross-government working group to develop the detail of the public sector equality duty proposals for secondary legislation. This group will be supported by an expert reference group involving a full range of public bodies and other key stakeholders. There will be further discussions with stakeholders, and with religious groups in particular, as to whether the ‘advancing equality of opportunity’ part of the duty should be extended to the religion or belief strand and if so how best to apply it. Positive action Employers will be able to take into account under-representation of disadvantaged groups when selecting between two equally qualified candidates for appointment or promotion. However, making decisions irrespective of merit (i.e. implementing quotas), or having an automatic policy of favouring those from under-represented groups, will remain unlawful. The Equality and Human Rights Commission intends to publish clear, user- friendly guidance on new measures extending the scope of voluntary positive action to the limit permitted by European law. This will illustrate the types of measures that can and cannot be taken. Age The bill will contain powers to outlaw unjustifiable age discrimination by those providing goods, facilities and services and carrying out public functions. To allow businesses and public authorities time to prepare, and to make sure the law does not prevent justified differences in treatment for different age groups, there will be further consultation on the design of the legislation and a transition period before the new legal protections from age discrimination are implemented. Gender The government will examine in more detail the impact that equal pay job evaluation audits have in tackling the gender pay gap. The bill will amend the definition of gender reassignment to recognise that not all transsexual people undergo surgery or require ongoing medical supervision. The bill will extend protection against discrimination because of gender reassignment by providing protection against direct discrimination for people who associate with transgender people, by providing protection against indirect discrimination for transgender people and by providing protection against discrimination because of gender reassignment in the exercise of public functions. Disability The bill will replace the separate legal definitions of discrimination with a single definition of disability discrimination for rights of access beyond the employment field, without diminishing the legal protection which disabled people have under current law. It will replace the different justification tests in disability anti-discrimination law with a single objective justification test. It will also replace the list of capacities which currently forms part of the definition of whether a person is disabled. What the bill will not include The bill will not include a purpose clause. To make the aim of the equality duty clearer, the face of the legislation will contain the government’s definition of advancing equality of opportunity. Advancing equality of opportunity is defined as ‘addressing disadvantage where it exists; encouraging a culture which ensures that individuals’ differences are accepted and do not hold them back; meeting different needs; and encouraging participation and inclusion,’ (paragraph 2.25, p23). Also, the bill will not introduce statutory protection against discrimination: • on grounds of genetic predisposition, or • for Welsh speakers. Timescale The government has decided not to implement the new single duty before the reviews of the gender and disability duties have been completed. Consultation on specific duties also needs to be carried out. This process, combined with drafting the relevant regulations, can be expected to take perhaps twelve months in itself. This all suggests implementation around 2010/2011 at the earliest. Further action Over the next few months there will be a continuous programme of further action to prepare for the introduction of the Equality bill in the next parliamentary session. The government will be: • exploring further whether to allow discrimination claims to be brought on combined multiple grounds, such as where someone is discriminated against because she is a black woman. • working with the Employment Tribunal Service, employment judges and other relevant stakeholders, to identify other means of ensuring that lessons are learned from tribunal judgments. • exploring the scope for establishing a more effective mechanism for sharing knowledge about the cases which arise in tribunals across the country. • establishing a senior level stakeholder advisory group to work with government across the full range of measures to be included in the bill. Next steps Equality Challenge Unit will continue to work with higher education institutions to clarify the implications of the bill for the sector and will also be working with the government and the Equalities and Human Rights Commission on developing the specific duties underpinning the bill. Published responses from the sector The government’s response to the consultation references some submissions from the higher education sector. These are detailed below. P30, 2.46 There was strong support for extension to all three new strands from trades unions (the Trades Union Congress, UNISON, ASLEF, USDAW) and some higher education institutions (the University of Edinburgh and legal experts from Clare College Cambridge, who pointed out that privacy issues relating to the monitoring and accuracy of information about sexuality or religion or belief would need to be dealt with sensitively, relying on guidance produced by the Equality and Human Rights Commission). In the education sector, the Learning and Skills Network, Implementation Review Unit (IRU), and the Higher Education and Funding Council for England were clear that the duty should be extended to cover all three new strands, though the IRU suggested phasing in the duties over a period of years; and the Higher Education Funding Council for England identified potential challenges in acquiring the evidence base for prioritising and assessing the impact of policy. The National Association of Schoolmasters/Union of Women Teachers and the National Union of Teachers supported extension. P43, 3.11 The Equality Challenge Unit pointed out that voluntary initiatives had failed to tackle age discrimination in employment. However, it also warned that the Employment Equality (Age) Regulations 2006 had created uncertainty among service providers as to whether certain age-based concessions (notably reductions in fees for older people undertaking further education courses) were still lawful.