30 April 2009
The Equality Bill was published on 27 April 2009 and has received a cautious welcome from campaigning groups while business organisations are concerned that proposed regulations will place an additional burden on them.
Some of the more eye-catching proposals in the Bill are that it:
- allows positive discrimination during recruitment in favour of disadvantaged groups when faced with candidates who are otherwise equally qualified
- contains a clause allowing the Secretary of State to order employers with more than 250 employees to publish information about disparities in pay between male and female employees - although apparently the government has announced that this power will not be exercised in the next four years
- outlaws any clauses in employment contracts which impose a secrecy obligation stopping employees discussing their pay packages
- introduces a new duty for some key public bodies to pay due regard to socio-economic disadvantage in making strategic decisions,
- extends the existing public sector duty to promote equality in the areas of race, sex and disability to all of the discrimination ‘strands’ (ie age, religion, sexual orientation, gender reassignment, pregnancy and maternity) gives effect to recent European case law by outlawing discrimination by association
- provides express protection for women breastfeeding babies under six months old in the area of goods and services (this means eg that a restaurant owner could not require a breastfeeding mother to stop breastfeeding in the restaurant).
- expressly allows equal pay claims to be brought where there is no male comparator but where the discrimination in pay is direct discrimination.
Discrimination on the grounds of pregnancy
One area of concern to note is that the Bill appears to suggest that where the less favourable treatment of a pregnant woman is ‘reasonable’ it is not unlawful. This makes the protection for pregnant women much weaker than for other prohibited grounds where less favourable treatment cannot be justified on the grounds that it is ‘reasonable’. There seems little doubt that this would be a breach of European law from which much of the pregnancy protection is derived. If implemented it is a regressive step which will lead to many claims to the European Court of Justice.
The discrimination team at Leigh Day & Co is expert at handling all types of employment discrimination claims, particularly those in the area of pregnancy and maternity. Please complete our online enquiry form if you feel you have a possible employment discrimination claim and one of our team members will contact you.
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