Will it consolidate and harmonise discrimination legislation or “drive a coach and horses through … recruiting on merit”?
The most significant piece of new employment legislation for 2010 is likely to be the passing of the long awaited Equality Bill. However, there are widely varying opinions on the Bill’s likely impact from the negative “will also drive a coach and horses through the principles of recruiting on merit” (
www.recruiter.co.uk 31/3/10) to the positive “The Equality Bill has the potential to further improve recruitment” (Carol Baxter, Head of Equality, Diversity and Human Rights at NHS Employers).
The primary aim of the Bill is to consolidate and harmonise the existing discrimination legislation. However, it will also introduce some significant new provisions including:
- Extending the concept of positive action to allow employers to recruit or promote someone from an under-represented group but only where they have a choice between two or more equally-suitable candidates.
- Measures to make gender pay discrepancies more transparent. This includes curbing the use of secrecy clauses which prevent employees discussing their pay.
- A new ground of disability discrimination, called "discrimination arising from disability" and introduce indirect disability discrimination.
- A widening of the definitions of direct discrimination and harassment.
- New powers for Employment Tribunals to make recommendations in discrimination cases for the benefit of the whole workforce and not just the claimant.
The government intends for the Bill to get royal assent in April 2010, with the majority of its provisions coming into force in October 2010 or thereafter.
There is particular concern about the extension of positive action provision, along with the duty on public authorities to consider reducing socio-economic inequalities. Where two candidates are equally well qualified, public sector bodies will be allowed to choose the person who is from the group which is under represented in the workforce.
While the intention is to promote fairness in the workforce, according to
www.recruiter.co.uk critics argue that it is impractical. Chris Tutton, a solicitor in the employment department at law firm Irwin Mitchell warns that this ’tie-breaker’ provision could open recruiters, both in-house and agencies, up to the risk of employment tribunals. “It will still be unlawful not to select the best candidate, so this provision of the Bill could expose recruiters to claims from unsuccessful candidates on the basis that they considered themselves to be better than the successful candidate.”
Janice Joannou, who speaks on equality for the Public Sector People Managers Association, argues that people should still be recruited strictly on merit. “They should only be hired if they add value to that job”.
Whether it is seen as a positive or negative move it is clear that employers and agencies will need to review their recruitment systems. For example, it seems that the Bill will effectively ban health-related questions until after a job offer has been confirmed. Susan Scott-Parker, Chief Executive of the Employers’ Forum on Disability, believes this is the correct approach and employers only need to know if people need any adjustments to enable them to do the job.
More than ever employers and agencies will need to ensure selection is based on objective criteria.
“In view of these new rights, employers and agencies should review their selection criteria and interview procedures to ensure they are as objective as possible to avoid any claim under the Equality Act. There is no limit on damages for discrimination claims, so getting it wrong can be very expensive.”
Tessa Fry, a partner at GSC Solicitors.
Trevor Bottomley
Employment & Labour Market Adviser
Central London Connexions
April 2010