The Equality Act 2006 - Essay Example

The Equality Act was introduced in 2006. To what extent has this legislation had an impact on business management decisions The Equality Act 2006) is a step toward the long awaited Single Equality Act which is expected to consolidate all anti-discrimination legislation. The Equality Act (2006) covered: the creation of the Commission on Equality and Human Rights, anti-discrimination in the provision of goods and services on the grounds of religion, belief and sexual orientation, and for the first time placed a duty on public authorities to promote equality of opportunity between men and women and to prohibit sex discrimination in the workplace. The general and specific duties on public authorities enshrined in the Equality Act 2006 to promote gender equality of opportunity may have a ripple effect on private organizations who supply them1. They are aimed at making the most of the talent in the workforce - rather than excluding or marginalizing sectors of the workforce, which was happening universally prior to government intervention in the 1970s and since: "The general duty places a proactive responsibility upon all public bodies to ensure that their services, practices and policies are developed with the different needs of women and men in mind. This will lead to a more inclusive society with high quality contemporary services - targeted to meet the specific needs of men and women."2 Interestingly, this Act has already brought legal challenges. On 21 March 2007 the House of Lords refused to remove the Equality Act (Sexual Orientation) Regulations 2007, which came into force on 30 April. Catholic adoption agencies had routinely refused to place children with gay couples. The government gave the Catholic adoption agencies an additional 21 months to prepare, but as Baroness Andrews told the House: "This has been a long journey to us recognizing the rights of people irrespective of sexual orientation. It is a historic step forward towards dignity, respect and fairness for all." From a business perspective the current law is a minefield - not only the complexity of satisfying the tests for direct and indirect discrimination, but the sheer scale of the legislation: "At present there are 116 separate pieces of equality legislation in force - 35 Acts, 52 statutory instruments, 13 codes of practice, and 16 European Commission directives and recommendations. They come with 2,500 pages of guidance."3 It is expected that a forthcoming European Union Directive will require further legislation that will seek to provide redress for those discriminated against in the provision of goods and services on the grounds of gender reassignment. Trevor Phillips, the chairman of the Equality and Human Rights Commission (EHRC), was quoted as saying: "Even the most well-intentioned businesses, and there are an awful lot of them, don't know when they've complied [with the existing laws]. It's almost impossible unless you have vast armies of bureaucrats." 4 Mr Phillips alleged that many businesses resented the waste of time and money involved in being taken to an Employment Tribunal. Over a quarter of a million calls were received in 2007 from lawyers trying to comprehend the legislation5. For some time public bodies have been at pains to promote inclusion rather than anti-discrimination. The figures clearly show that direct and indirect discrimination continues to be used to exclude citizens from attaining self-fulfilment in the public domain, particularly in the workplace. For example, according to the Equal Opportunities publication 'Facts about Men and Women in Great Britain'6 women in full-time employment earn 18% less than their male counterparts, 45% of pregnant women allege discrimination in the workplace, whilst UK fathers work the longest average weekly hours in the EU. The difficulty for Parliament is to provide legislation which protects citizens from bigotry in all walks of public life, while not over-burdening businesses or other organisations - such as the voluntary and social economy - with time consuming and expensive regulations to implement. Whilst the Equality Act 2006 and the plans for the Single Equality Act may seem to indicate a more pro-business approach there appears to be no intention to remove existing levels of protection. Indeed one could argue that it makes sense to consolidate the existing legislation and regulations as part of a broader plan to alter the focus of citizens toward a more inclusive approach in their interaction with others. In 2006 the CBI rejected the Equal Opportunities Commission's demand for mandatory pay audits, arguing that: "Mandatory equal pay audits are not the answer to tackling the gender pay gap. The EOC's audits are cumbersome, labour and resource-intensive and it admits as much with its suggestion of a preliminary 'diagnostic check' to determine whether a full audit is required." 7 It went on to assert that the way to address the underlying causes of the gender pay gap was for employers to offer flexible working and encourage young women into better paid careers, which have been the traditional provenance of men, for example in the Financial sector of the economy. Nonetheless the government's target for the private sector is that 45% of companies will routinely undertake pay audits by 2008. This is easier for companies with 5,000 employees or more - 40% of whom had conducted a review by 2005.8 The United States of America is some way ahead of the United Kingdom in tackling the vexed issue of discrimination in the workplace. However, the debate rages there as to whether affirmative action and reverse discrimination are the best way forward. Affirmative action is proactively hiring "persons from groups previously discriminated against in educational and employment situations."9 In this sense the organisation has a goal to eradicate discrimination, rather than a quota or fixed figure to recruit. It could be argued for example that the United Kingdom has moved toward affirmative action - if not preferential hiring - with regard to disabled persons being guaranteed interviews for public sector appointments. Quotas result in reverse discrimination, which is defined as preferential treatment by P1 against P2, who had previously discriminated against P1. However, at the current time the British government has not gone as far as federal legislation in the United States of America which obliges ALL sectors of the economy to eradicate discrimination, equalise opportunities and to set goals to eliminate discrimination through affirmative action. Commentators in the United States argue that reverse discrimination violates the whole point of the exercise since it results in a 'some are more equal than others' argument. Unfortunately the newspapers and media continue to regale us with high profile stories of highly intelligent, capable and experienced personnel who are discriminated against in the workplace, particularly in the Finance sector and the Police force. More recently the treatment of personnel who choose to express their faith in the way they dress (be it a cross or a burkha) have exposed further weaknesses in the definition of inclusiveness. Organisations such as British Airways, and the public education sector have been criticised for their failure to grasp the spirit of the legislation. Women in the financial sector have successfully argued to Employment Tribunals that the male orientated culture they are exposed to places them in an untenable position, resulting effectively in constructive dismissal. These organisations in turn claim that the precise reverse - they go out of their way not to discriminate. Unfortunately, passive non-discrimination does not necessarily move one forward as there is a danger that nothing will change at all. It is not so much that existing systems in the public domain, particularly the workplace, are designed to keep certain groups out; rather that they unintentionally favour certain groups - notably high-flying, middle class males. As part of their corporate social responsibility, persons working in the public domain have a moral and legal responsibility to eradicate discrimination. This is crucial since it should be borne in mind in mind that business impacts on other "opportunities for the less-advantaged in other areas such as housing."10 Based upon the foregoing arguments it seems that the business sector have yet to whole-heartedly embrace the legislation and take proactive steps to counteract discrimination in the workplace. One takes comfort from the words of Mr Phillips - that the majority of organisations in the public domain are well-intentioned. Words (excluding title): 1,335 List of References Beauchamp, T.L & Bowie, N. E. (Editors). (1979). Ethical Theory & Business. New Jersey: Prentice-Hall Inc. (Chapter 9: 582-641) Davis, K & Blomstrom, R (1979:595) "Business, Minorities and Less-Advantaged Persons" in Beauchamp & Bowie Berry, M. (2006). 'CBI rejects calls of mandatory equal pay audits'. Personnel Today. [online]. Available from: . [27/03/2008]. Dennan, D. (2000). 11th Edn. Smith & Keenan's Advanced Business Law. London: Longman. (Chapter 16: 432-461) Leapman, B. (2008). 'New 'fairness' Act to replace equality laws'. The Telegraph, March 10th, 2008. Linskell, R. (2006). 'What is the Equality Act 2006 about' Personnel Today. [online]. Available from: . [27/03/2008]. Nottingham City Council (n.d.) 'Gender Equality Duty'. [online]. Available from: . [27/03/2008]. New 'fairness' Act to replace equality laws By Ben Leapman, Home Affairs Correspondent Last Updated: 2:38am GMT10/03/2008 A powerful new anti-discrimination Bill is to be unveiled by the Government, ushering in the biggest overhaul of equality legislation in 40 years. More than 100 Acts, codes and directives introduced since the Sixties to outlaw prejudice based on race, faith, sex and sexuality will be swept away in favour of a single requirement for employees to be treated fairly. Harriet Harman, the minister for equality, is expected to unveil sections of the Single Equality Bill by the summer, before it is formally announced in the Queen's Speech this autumn. Trevor Phillips, the chairman of the Equality and Human Rights Commission (EHRC), who has advised ministers on the new legislation, claims the new system will be easier for business to comply with. He is examining proposals that could reduce the number of alleged breaches that go to full employment tribunal hearings, resented by businesses as a waste of time and money. In an interview with The Sunday Telegraph, Mr Phillips said: "Even the most well-intentioned businesses, and there are an awful lot of them, don't know when they've complied [with the existing laws]. It's almost impossible unless you have vast armies of bureaucrats." advertisement Included in the Bill could be measures to prevent mixed-sex clubs, such as golf clubs, from holding "ladies' days"; and a right, enshrined in law, for mothers to breastfeed in public. At present there are 116 separate pieces of equality legislation in force - 35 Acts, 52 statutory instruments, 13 codes of practice, and 16 European Commission directives and recommendations. They come with 2,500 pages of guidance. They make it illegal for people to be given less-favourable treatment on six grounds: race or nationality, sex or having had a sex-change operation, disability, faith, sexual orientation, and age. Discrimination can be illegal in employment, education, provision of goods or services, or admission to premises, but the law is inconsistent. Since 2000, public authorities have had a legal duty to "promote race equality" - extended to include disability equality in 2006 and sex equality last year. Between them, the three watchdogs that merged last year to form the EHRC - the Commission for Racial Equality, the Equal Opportunities Commission and the Disability Rights Commission - took 250,000 calls a year from lawyers, businesses and individuals seeking advice on how the laws worked. Mr Phillips said: "The first equality laws were essentially about dealing with individual bigotry - the male employers who said they were going to pay the blokes more because they were the breadwinners, the bus companies who said they wouldn't employ black conductors because the customers would be uncomfortable. "Today, most people wouldn't even dream of wanting to do something like that, much less actually do it. Of course there's still individual bigotry but that's not the really big problem. "The problem, for example on gender, is job segregation where the girls go into one kind of work and the boys into another kind of work. We need to draw on the talent of everybody. "The existing law is really purely anti-discrimination, and what we need now is something I think of as pro-fairness law. Rather than vast bundles of law saying 'You must not', it's a law saying 'You can do this', 'You should do that', and sometimes 'You must do this'." Labour promised a new equality law in its 2005 manifesto, which also proposed the creation of the EHRC. A consultation document published in June 2007 was expected to lead to an announcement in last year's Queen's Speech, but it was delayed by uncertainty over the content of the Bill. Ministers have said the new law will "provide the necessary protection against real unfairness while taking a proportionate approach to the regulatory burdens this necessarily imposes on businesses". Unions have expressed alarm at the pro-business tone, prompting ministers to pledge that the reforms "will not erode existing levels of protection against discrimination". Ministers have so far resisted calls from campaigners to extend protection to new groups, including children under 18, carers, and people whose genes make them prone to disease. Unions have called for all employers to be required to carry out regular "equal pay" audits, with bigger penalties for bosses who lose tribunal cases. Current disability discrimination legislation is defined in its scope by a list of specific "capabilities". Anyone with an impairment to one or more of the listed capabilities is protected by the legislation. Campaigners have welcomed the Government's proposal to scrap the capability list, but want it to go further by extending protection to those with less serious impairments. Richard Linskell. "What is the Equality Act 2006 about" Personal Today. 28 February 2006 http://www.personneltoday.com/articles/2006/02/28/34141/legal-qa-equality-act-2006.htmlLegal Q&A Equality Act 2006. Last viewed: 27/03/2008 28 February 2006 08:00 This article first appeared in Personnel Today magazine. Subscribe online and save 20%. What is the Equality Act 2006 about Q What is the Equality Act 2006 about A The Equality Act, which received Royal Assent on 16 February 2006, has three main purposes: To establish the Commission for Equality and Human Rights (CEHR) To make discrimination unlawful on the grounds of religion or belief in the provision of goods, facilities and services, the disposal and management of premises, education, and the exercise of public functions To create a duty on public authorities to promote equality of opportunity between men and women, and to prohibit sex discrimination in the exercise of public functions. Q What does this mean in practice A The Equal Opportunities Commission (EOC) has called it the most significant change in gender equality legislation for 30 years. All public sector bodies will have a general duty in the exercise of their public functions to pay due regard to the need to eliminate unlawful discrimination, and to promote equality between men and women, known as the Gender Equality Duty (GED). This will affect all of their activities, from the provision of bus services to social care. Public authorities will also have specific duties that will impact them in their capacity as employers. These will be set out in regulations, but will include identifying gender equality goals and showing the action they will take to implement them. These will then need to be published, monitored and reviewed every three years. Public authorities will therefore need to ensure they take active steps to eliminate sources of discrimination in their own employment practices, for example, by ensuring the proportion of women they employ at a senior level is appropriate, or that they pay their workforce in accordance with the equal pay laws. Rather than wait for claims to be made, employers will need to investigate proactively and take action to correct inequalities. QWhat do employers need to do A Affected employers will need to review every aspect of their employment practices and processes, from recruitment (for example, ensuring jobs are advertised in places where they will be seen by both genders), to terms and conditions (for example, carrying out equal pay audits), access to promotion and training (for example, ensuring training is actively offered on an equal basis) and, of course, dismissal. It is likely that a wider range of information and statistics about employment practices than before will need to be collected so that employers can monitor and demonstrate that they are complying with the GED. This could include not just statistics on the gender mix of the workforce as a whole, but also information about equal pay, sexual harassment, occupational segregation, promotion and development opportunities and family-friendly working arrangements. Q So can private sector employers ignore the Equality Act A If only it were that simple. While there is no direct duty imposed on private sector employers, they may be caught by the Act's ripple effect. The most likely impact will be felt by private sector employers that are involved in the supply to public bodies of any goods or services or involved in the sub-contracting of local authority services, such as cleaning, home care or security. In seeking to comply with the GED, public bodies are likely in future to make gender equality a condition, or at least a substantial factor, in tender specifications. So, for example, they may contain a stipulation that all contractors must carry out an equal pay audit and confirm they have removed any inequalities arising from that audit. The absence of such confirmation could disqualify the contractor from winning the tender. Q What will the CEHR do A When the Act comes into force, the CEHR will be responsible for promoting understanding of equality and human rights issues and for challenging unlawful discrimination. It will initially replace the existing equality bodies, the EOC and Disability Rights Commission, and will take over the functions of the Commission for Racial Equality in April 2009. It will also have responsibility for promoting other specific areas of discrimination (sexual orientation, religion or belief and age) and will have a wider general remit to promote human rights and equality generally, even those areas not covered by specific pieces of legislation. Q When does the Act come into effect A Don't worry - you have more than a year to get ready for the Act. Although it has received Royal Assent, its principal provisions, including the GED, do not come into force until 6 April 2007. The CEHR will be established from October 2007. Q Will there be any guidance on how to comply with the Act A The EOC has already begun an online consultation, which lasts until 15 May, about a Code of Practice. It is also holding a series of events during February and March 2006 to explain the details and implications of the legislation and to enable discussion and feedback. By Richard Linskell, partner, Dawsons BOXTEXT: For more information, go to the EOC's website www.eoc.org.uk BOXTEXT: Access the consultation at http://eoc.dialoguebydesign.net/dbyd.asp BOXTEXT: Jenny Watson explains how the Gender Equality Duty will affect HR www.personneltoday.com/33196.article Bottom of Form RELATED PERSONNEL TODAY PRODUCTS AND SERVICES One-Stop Guide to Equal Pay Reviews This One-Stop Guide from Personnel Today includes a step-by-step guide to designing and implementing non-discriminatory job evaluation schemes, an overview of tools available to review pay, and clear explanations of the key concepts in gender pay equality. More... One-Stop Guide to Flexible Working Parents have the right to request flexible working by law. Make sure you know how to respond by getting your hands on the Personnel Today One-Stop Guide to Flexible Working. More... 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Conservative peer Baroness O'Cathain's attempt to get the legislation thrown out was defeated by 168 votes to 122, a safe majority of 46. The regulations, which come into force on 30 April, outlaw discrimination against gay or straight people by businesses and service providers. The Catholic Church has threatened to shut its adoption agencies rather than comply with equality for gay couples - putting vulnerable and difficult-to-place children at risk. Cardinal Cormac Murphy O'Connor has complained that the new regulations have not been sufficiently examined, in spite of hours of debate and discussion. He also claims, along with those in the Church of England's general synod who urged their bishops to vote against SORS, that its teaching is being compromised. But others, like the evangelical Faithworks movement, Christian peers like Lord Smith, lesbian and gay church groups and the Christian think-tank Ekklesia have disputed this idea. In California, Catholic adoption workers have teamed up with other voluntary agencies to offer a full service, with the church handling some cases and civic groups others. The Church in England, Wales and Scotland has been given 21 months to comply with the new rules. The Cardinal remains agnostic about prospects. The hope is that the extra time will allow expertise and knowledge to be passed onto the voluntary sector rather than being lost. Baroness Andrews, for the government, said: "This has been a long journey to us recognizing the rights of people irrespective of sexual orientation. It is a historic step forward towards dignity, respect and fairness for all." At prime minister's questions earlier, Tony Blair, a practicing Anglican with strong Catholic sympathies, said opponents were effectively backing discrimination. Several hundred people had protested against SORS outside parliament, and conservative evangelical groups said they were 'praying for a miracle'. "They got one, but not as they presumed", a gay Christian told Ekklesia last night. "Fear and prejudice did not win the day. I am grateful to God, and to those of faith and non-faith who got this through." The issue split the Conservative Party. I n the House of Commons on Monday 19 March, as David Cameron, the Tory leader, the measure. But in the Lords on a free vote, more than 80 Conservatives MPs voted against. Referring to a Christian demonstration, Labour peer Lord Alli said: "These regulations are fair and balanced. The sight of children holding up homophobic placards outside the Lords seems a good argument for these regulations." Read More