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Employment Law Update: The New Equality Bill

Employment Law Update: The New Equality Bill. Positive Action and Harassment. Jackie Lane University of Huddersfield. Why an Equality Bill?. The White Paper “Framework for a Fairer Future – the Equality Bill” states that the government’s commitment to equality is:

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Employment Law Update: The New Equality Bill

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  1. Employment Law Update: The New Equality Bill

  2. Positive Action and Harassment Jackie Lane University of Huddersfield

  3. Why an Equality Bill? • The White Paper “Framework for a Fairer Future – the Equality Bill” states that the government’s commitment to equality is: • Necessary for the individual • Necessary for society • Necessary for the economy

  4. Time to de-clutter the law • 40 years of legislation • 9 major pieces of legislation • 100 statutory instruments • A “dog’s breakfast”

  5. Current statistics • The gender pay gap means that a woman’s pay is on average 12.6% less per hour than a man’s • If disabled, you are two and a half times more likely to be out of work than a non-disabled person • If from an ethnic minority, you are 15.5% less likely to find work than if you are white

  6. Further statistics • Only one High Court Judge from an ethnic minority • Only 8% of University Vice chancellors are women • Only 11% of Directors in the UK’s top 100 companies are women • No female Asian MPs

  7. Without positive action • Without significant POSITIVE ACTION, it would take 100 years for ethnic minorities to have the same job prospects • It would take 70 years to close the pay gap.

  8. Harassment • A fairly recent addition to the types of discrimination • It can cause marginalisation of minority groups, distress and possible psychological harm • Protection from other sources – defamation, trespass to the person, assault and battery, Protection from Harassment Act

  9. What are bullying and harassment? • Harassment – unwanted conduct affecting the dignity of men and women in the workplace • Demeaning and unacceptable to the recipient • Bullying – offensive, intimidating, abuse of power • Examples: unfair treatment, gossip, ridiculing, making threats, blocking promotion

  10. Results of bullying • Anxiety • Humiliation • Loss of self esteem or self confidence • Fear • Stress • Illness • Absence from work • Resignation

  11. Remedies? • General bullying and harassment – dealt with through internal procedures or, following resignation, action for constructive dismissal • Legal remedies only apply where harassment is on the grounds of a protected characteristic

  12. An extensive problem? • Sexual harassment – 0.9% in 2005 • Racial harassment a continuing problem according to TUC report 1998. • Sex discrimination generally – 18,637 cases dealt with by tribunals 08/09 – down 10,000 in 2 years • Race discrimination – 4,983 – up from 3,780 06/07

  13. Current protection • All areas except religion or belief, sexual orientation and disability outside the workplace • All areas covered within the workplace – religion or belief, sexual orientation, age, sex, race and disability.

  14. Aims of the Equality Bill • To achieve uniformity across all protected characteristics • Definition remains virtually unchanged: • Clause 24 gives three types of harassment: • 1. Unwanted conduct – purpose or effect – intimidating, hostile, degrading, humiliating, offensive environment – or violating dignity • 2. Unwanted conduct of sexual nature with above purpose or effect • 3. Less favourable treatment as a result of failure to submit to sexual harassment

  15. Purpose or effect • Effect – unintentional conduct is covered • Tribunal must take into account: • A. Perception of complainant • B. Other circumstances of the case • C. Whether it is reasonable for the conduct to have that effect • Thus, although law is not substantially altered, it is much simplified

  16. POSITIVE ACTION • Permissible in limited circumstances • Controlled by EU law • Existing positive action measures are limited (see accompanying paper)

  17. Proposed changes • S42A Sex Discrimination Act 1975 – makes lawful arrangements to reduce unequal numbers of elected men and women in political parties – clause extended from 2015 to 2030 • Less than 1 in 5 MPs are women • 14 EU states have greater female representation in national Parliaments • 68th in the world

  18. Disability • Not like other anti-discrimination laws – DDA protects disabled persons against discrimination and it is therefore lawful to give such persons preferential treatment – most positive action measures already used

  19. Age, sex and race • All provide for limited positive action in terms of “encouragement” and “training” to disadvantaged groups. • Religion, belief and sexual orientation – preferential treatment permissible only where this is a genuine occupational requirement

  20. Clause 152 and 153 • Clause 152 – general • Extends to ALL protected characteristics • Provides that Bill does not PROHIBIT positive action to reduce potential disadvantage, reduce under-representation in certain areas, and meet their particular needs. • Aims to ENABLE these groups to encourage PARTICIPATION in certain activities

  21. Examples • Providing training or health services to certain groups e.g. A school could provide extra English classes for white males if they were underperforming • E.g. If Asian women more prone to breast cancer due to lower take-up of screening, a local NHS trust could directly target this group • Regulations will specify what is NOT allowed

  22. Recruitment and Promotion • Clause 153 • Permits an employer to take into account a protected characteristic in decisions involving recruitment or promotion IF they are at a disadvantage or under-represented • Recruitment - Employers can give preference to under-represented candidate if all applicants are equally well qualified • Promotion - Could promote a female candidate in similar circumstances

  23. Conclusion • Bill simplifies existing legislation • Has addressed issues of positive action and harassment • Overall a restrained Bill, likely to have little impact • Close the pay gap in under 70 years?

  24. QUICK QUIZ • Which of the following will be lawful under the Equality Bill? • 1. A Chief Constable wants her (3 in 2007) force to be more representative, so advertises for “female only” police officers. • 2. An NHS Trust is recruiting new nursing staff. The HR officer has short-listed 3 equally well-qualified candidates, two white and one Asian. Due to under-representation of Asian workers in the trust, she appoints the Asian candidate. • 3. The local Labour party organisation has drawn up a female-only shortlist of parliamentary candidates • 4. The local BNP party has drawn up a whites-only shortlist of parliamentary candidates

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