Carers and the Equality Bill
The long awaited Equality Bill was published on Monday 27 April and is expected to come into force by autumn 2010. It is set to replace nine laws with one single Act to make it easier for employers and staff to understand their legal rights and obligations. The Bill covers England and Wales and, with the exception of one clause, part of the law of Scotland. There are also a few provisions which form part of the law of Northern Ireland.
Provisions of the Bill which relate to carers and employment:
Protecting carers from direct discrimination and harassment (by ‘association’)
For the first time carers will be protected from direct discrimination (and harassment) because of their association with people who are protected from discrimination themselves.
It is currently unlawful to discriminate against or harass someone because they are ‘linked to’ or ‘associated with’ a person who is of another sexual orientation, race, religion or belief. However, the same protection has not so far fully applied in respect of disability, age, sex or gender reassignment. The Bill strengthens the law in this area by protecting people from discrimination (and harassment) when they are associated with someone who is protected on any of the above grounds, ie including disability, age, sex or gender reassignment.
The inclusion of protection against this type of discrimination (and harassment) by association in the Bill follows the case of Sharon Coleman who has a disabled son and who faced this type of unfair treatment at work. In this landmark case the European Court of Justice ruled that treating employees less favourably because of their caring responsibilities is unlawful and that ‘disability by association’ should apply to British law.
The Bill has a big impact on carers as they are particularly likely to be associated with disabled people, older people or both. For instance, the Bill’s Equality Impact Assessment cites that ‘ an employer would not, for example, be able to treat an employee less favourably because the employee had an elderly or younger relative needing care (unless the employer could objectively justify this treatment). As with disability, the impact is likely to be greatest for those with caring responsibilities.’
Extending powers to use positive action
The Bill expands the way that positive action can be used by employers to increase the diversity of their workforce. It enables employers to recruit a candidate from an under-represented group when they have the choice between two or more candidates who are equally suitable. It gives employers 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. These new positive action measures will be available to all employers to use on a voluntary basis.
The Bill does not allow positive discrimination, which will remain unlawful, ie banning certain groups from certain jobs.
Strengthening the powers of employment tribunals
The Bill allows employment tribunals to make recommendations in discrimination cases which benefit the whole workforce and not just the individual who won the claim. Failure to comply with a recommendation could be used as evidence to support subsequent, similar claims.
Currently tribunals can make recommendations where an employer has found to have discriminated, but only if they directly benefit the person who has been discriminated against. However, as around 70% of employees involved in discrimination cases leave the organisation, this ties the hands of tribunals in practice.
Next steps:
The Bill is expected to enter the Commons Committee stage in June and the House of Lords at the beginning of the new Parliamentary session. Subject to the approval of both Houses, it is expected to receive Royal Assent in spring 2010 and to become law in about the autumn of 2010.
The Government has also said that it will be consulting on the following:
Spring 2009 – a forthcoming provision to protect people from multiple discrimination
Summer 2009 - proposals for detailed provisions under the public sector Equality Duty and on age discrimination.