Sarah Houston looks at proposed changes to the equalities law in terms of it’s affect on employment within the education sector

There are major changes on the horizon in the employment sphere in the shape of the equality bill which completed the Commons Committee Stage in July 2009, and which contains a number of important proposed changes to equalities law. Sarah Houston looks at the implications for the education sector.

1. What is the aim of the bill?
The aim of the bill is to harmonise and re-state existing discrimination law, seeking to adopt a single approach where appropriate relating to all types of discrimination including sex, race, disability, religion and age. It provides that a school will discriminate against someone if they treat them in a particular way; that treatment is to that person’s detriment; and the school cannot show that the treatment is a proportionate way of achieving a legitimate aim.

2. The bill mentions the equality duty – what changes are proposed in relation to this?
Currently, the public sector equality duties exist in relation to race, disability and gender. This is going to be replaced with a single duty that will extend across all protected characteristics (age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation), but excluding marriage and civil partnership.

3. What will the new equality duty mean for maintained school employers?
The duty will require an employer, when exercising its functions, to:

  • eliminate discrimination, harassment, victimisation and any other conduct that is prohibited
  • advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it
  • foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

This means that public sector employers will be under a duty to consider how their policies, recruitment, programmes and service delivery will affect people with protected characteristics.

4. Can individuals bring a claim for dual discrimination under the new bill?
Under current discrimination legislation, individuals can only bring a separate discrimination claim relating to one protected characteristic. The bill proposes a new law to protect individuals who experience discrimination because of a combination of two characteristics (eg, a minority ethnic woman or a religious man). Therefore, a black woman who was discriminated against could bring a dual discrimination claim on the basis of sex and race, rather than trying to fit her experience into separate sex and race claims. Marriage, civil partnership, pregnancy and maternity (which are covered elsewhere in the bill) are not potential grounds of dual discrimination.

5. What changes does the bill propose in relation to positive action?
As a new concept the bill proposes to allow an employer to recruit and promote an individual from an under-represented group where that individual is ‘as qualified as’ their competitor. Using this provision could allow an employer to select Candidate A (a woman) in preference to Candidate B (a man) where they have scored exactly the same marks in a selection process (but not where Candidate A has scored less than Candidate B).

An implication of this new form of positive action is that unsuccessful candidates will make claims against employers that they were better qualified and therefore that the defence of positive action cannot be relied upon. It will then be for the employer to prove that they were not.

6. Are there any changes proposed by the bill in relation to enforcement?
Yes, the bill provides for wider enforcement and allows employment tribunals to make wider recommendations in cases, so that the whole workforce benefits from improvements after an individual wins a claim. The recommendations need to be proportionate and based on evidence. This provision is supposed to overcome the fact that many employees who make a claim against their employer leave employment with them.

Any recommendation made by the tribunal will not be binding on the employer so no enforcement action against them can be taken. However, it is envisaged that if an employer does not implement a recommendation made by the tribunal, this fact could be used in evidence to support similar future claims.

7. What recommendations could an employment tribunal make?
Examples of recommendations that the employment tribunal could make are:• retraining of staff• ensure policies are more effectively implemented• set up a review panel to deal with equal opportunities harassment and grievances

• make public its selection criteria used for staff transfer or promotion.

8. When is the equality bill expected to come into force?
The bill is expected to come into force in October 2009. Until then, all existing discrimination legislation remains in force.

This e-bulletin issue was first published in September 2009

About the author: Sarah Houston