Member Article

At long last, the Government's proposals in relation to the development of a Single Equality Bill have been released for consultation. The proposals stem from the work of the Discrimination Law Review that was established in February 2005 to consider the existing framework of discrimination legislation and to develop proposals aimed at harmonising and simplifying the current law. 

An unhelpful level of confusion and uncertainty amongst those seeking to comply with, or rely on, current equality legislation, exists, and can sometimes act, as admitted by the Government, as a ‘barrier to fairness’.

The 'patch work' nature of equality legislation in the UK stems from its long history of development.  In the beginning, discrimination on the grounds of race and sex was outlawed , with protection being extended to disabled persons in the 1990s, and most recently sexual orientation and religion or belief were included. However, the piecemeal development of the law has left gaps and inconsistencies in the level of protection.  Some grounds of discrimination, for example age, remain prohibited only in employment, and most grounds have widely divergent exceptions that apply.

Against this background, the Discrimination Law Review was tasked with considering "the opportunities for creating a clearer and more streamlined equality legislation framework, which produces better outcomes for those who experience disadvantage".  A consultation paper on the Review’s proposals was launched on 12 June 2007.  Entitled Discrimination Law Review: A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain, the paper  is split into three parts: harmonising and simplifying the law; more effective law and modernising the law, with a number of proposals set out under each.

"Harmonising and simplifying the law" looks at promoting compliance and good practice, simplifying definitions and tests as well as simplifying the exceptions.  Importantly, this part looks at harmonising the varying definitions of indirect discrimination that apply across the statute book and considers adopting the same objective justification test for all existing indirect discrimination provisions. Equal pay will also be considered, with proposals to introduce equal pay provision within a Single Equality Act that incorporates some of the settled principles of equal pay law that have arisen from court and tribunal judgments in this area.

"More effective law" looks at the use of balancing measures to effectively address entrenched discrimination, the development of public sector equality duties and ways to improve the resolution of
discrimination disputes outside the workplace.  Balancing measures, such as the concept of “reasonable adjustment” in disability discrimination law and positive action measures in sex discrimination are a very sensitive area in discrimination law and the proposals in the paper are limited.  Instead, this part focuses on developing the public sector equality duties, proposing a single equality duty covering the three current grounds and considers extending the scope of the duty to cover age, sexual orientation, and/or religion or belief.  Finally this part looks at ways to promote effective dispute resolution in relation to claims of discrimination.

The final part of the paper entitled "Modernising the law" looks at whether changes should be made to the grounds of discrimination protected by statute, recommending against extending these to include a new ground of "genetic pre-disposition".  It also looks at whether the prohibition on age discrimination should be extended beyond employment; and the levels of protection afforded on grounds of pregnancy and maternity outside employment.  Perhaps most controversially it also proposes strengthening the prohibitions on discrimination by private clubs.

The Discrimination Law Review has clearly put a substantial amount of work into the development of this paper.  Sitting at just under 200 pages, it contains detailed consideration of various aspects of equality legislation.  While this consultation is clearly not aimed at initiating fundamental reform in this area, it will be interesting to see whether these proposals ultimately achieve their aim of creating a clearer legislative framework for discrimination law that produces better outcomes for those who experience disadvantage.

Consultation responses must be received by 4 September 2007.  Copies of the consultation paper can be downloaded from the Department of Communities and Local Government website at www.communities.gov.uk.

First Published in CA Magazine, August 2007

Kelly Harris is a solicitor specialising in public law with UK law firm Shepherd and  Wedderburn