Do not be distracted by the Equality Bill sideshow

Out-Law Analysis | 09 Jul 2009 | 2:07 pm | 2 min. read

OPINION: Some employers may be afraid of the Government's Equality Bill. Others may hope that it will never come into force. The reality, though, is that key parts of it simply reflect today's commercial practices.

According to the Government, the Equality Bill will promote equality and fight discrimination in all its forms. Much has been written about it since its publication in April. The focus has been on contentious issues like the scope for positive discrimination in the event of a recruitment tie-break and the duty on employers with more than 250 staff to declare their equal pay gap.

Opinion is divided on the merit of these provisions; but the question we hear from clients is this: will they ever become law?

That is understandable: the earliest the Equality Bill can come into force is May 2010, though we're told by the Government Equalities Office that it probably won't happen before autumn 2010. We know that there must be a general election by May 2010 at the latest, so what will happen if David Cameron's party takes office, as opinion polls tell us it will? Will they scrap the law altogether, or parts of it?

Conservative MP John Penrose, who sits on a committee that is studying the Bill, says that the new law could become "an opportunity for yards and yards of extra red tape to strangle our economy". Scrapping the entire Bill seems unlikely – he says "most of the bill is fine" – but he makes clear his party's objections to the detailed provisions on age discrimination and equal pay.

So we should expect a Conservative Government to scrap or amend significantly the most contentious elements of the Bill.

That political debate, however, is a commercial red herring.

Key elements of the Bill simply codify what happens in business today. The Bill proposes that the existing duties on the public sector to promote sex, race and disability equality be extended to include religion or belief, sexual orientation and age. 

This is of real commercial relevance to public and private sector alike – because the public sector must ensure that any private sector contractor complies with these duties to promote equality.

In reality, the Bill codifies what we already see in practice. Companies in the construction sector, support services sector or technology sector need to demonstrate how they can support the public sector in meeting its obligations not just under existing equality law, but also under anticipated equality law.

On the other side, Central and Local Government, Universities and Healthcare sectors all want to include commitments about equality and diversity in their specification of services and contractual terms.

While parts of the banking sector are part owned by the Government, the same is true there. On one recent pitch to a bank, a client told me that the requirements in relation to equality were longer than the specification of services.

Because this is happening already, whether the Equality Bill becomes law or not is a sideshow. Working out how to comply with the duties to promote equality in their expanded form makes a difference now to winning work.

We have helped clients with this – delivering tailored training programmes in-house that focus on what equality at work means; putting in place the right policies and procedures; demonstrating how to conduct meaningful impact assessments; and offering guidance on what action to take based on these.

So a key aspect of the extension of equality law already applies in practice. The focus should be on that more than on what may be.

By Selwyn Blyth, an employment law partner at Pinsent Masons, the law firm behind OUT-LAW.COM.

Pinsent Masons will be running a series of half day seminars at its offices across the UK during November about the Equality Bill and the interface between the public and the private sector on the procurement of services. For details, email [email protected]