It's the law: Provisions of the Equality Bill, part two

The bill includes measures to increase the power of employment tribunals.

The provisions of the Equality Bill, when they are implemented, will have a significant impact on the working practices of charities, as discussed in my previous article (20 August, page 25). And there are further measures to consider.

The bill will introduce measures such as positive action, which means that charities will be able to take steps to recruit under-represented groups or develop talent within under-represented groups in their workforces. Charities can target particular groups with job adverts or training schemes, but the law does not currently allow them to take under-representation into account when it comes to choosing between two equally qualified candidates.

The Government Equalities Office paper Framework for a Fairer Future - The Equality Bill says "employers will have 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". It adds that the new measures will be available to all employers to use on a voluntary basis and stresses that they "will not allow people to promote one candidate above another if that person is less suitable".

Guidance will be published by the Equality and Human Rights Commission on the new positive action measures to illustrate the range of actions that employers and service providers will be able to take.

The bill will also strengthen the employment tribunal's enforcement powers in respect of discrimination claims. Currently, tribunals can make recommendations if an employer has been found to have discriminated, but only if they directly benefit the person who has been discriminated against. This ties the hands of tribunals because about 70 per cent of employees involved in discrimination cases leave their place of employment.

The changes mean that a tribunal could recommend measures such as introducing an equal opportunities policy, or the review of pay policies, which would benefit those who are still part of the workforce.

Among other measures, the Equality Bill will ban secrecy clauses that prevent people discussing their pay. People will not be obliged to disclose their pay details, but the bill says "in situations where colleagues work closely together on similar work, but are paid different rates or have different packages, it is right that they should be able to compare if they want to".

 - Emma Burrows is a partner and head of the employment group at Trowers & Hamlins solicitors

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