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.