Making things equal

Currently, discrimination law protects against less favourable treatment on the grounds of characteristics such as sex, age, race, religion, or disability. There is no effective remedy, however, for an individual subjected to "multiple discrimination".

An example of this might be a Muslim woman passed over for promotion as a hotel manager because her employer thinks that Muslim women do not perform well in high-level customer-focused roles. If the employer can point to a non-Muslim woman and a Muslim man who have equivalent qualifications and experience, and who have been appointed into a similar role, as the law currently stands it would be very difficult for her to successfully claim that she has been discriminated against.

The Equality Bill is expected to receive Royal Assent in the spring and come into force in October 2010 but this is largely dependent on the outcome of the Election. The final details of the Bill (or indeed whether it ever becomes law) will not be confirmed until any negotiations as a result of a change of Government have taken place. As things stand at the moment, however, its aim is to strengthen discrimination protection by enabling multiple direct discrimination claims. What that means is that claims might combine two of the following protected characteristics: age, disability, gender reassignment, sex, sexual orientation, race and religion or belief. Discrimination on the grounds of pregnancy, maternity, marriage and civil partnership are not included.

Although on the face of things this is a positive step forwards, the Bill is not without its shortcomings. Critics suggest that the proposals are over-cautious. They suggest that they should go further to include indirect discrimination and harassment, and should allow for combinations of more than two protected characteristics (although it will be possible for claimants to bring a multiple discrimination claim alongside single strand discrimination claims (bringing, for example, a claim of age discrimination, a claim of sex discrimination and a multiple claim of age and sex discrimination).

The Government estimates that the new provisions will lead to a 10% increase in the total number of tribunal claims brought each year. This is an additional 250 claims based on 2008/2009 statistics.

So what do you need to know as an employer?

The fact that employers will need to demonstrate that their conduct and decisions were based on legitimate non-discriminatory factors is nothing new. The difference lies in the basis of a multiple discrimination claim often being a cultural difference or stereotype. These can be much less obvious to spot than a single protected characteristic.

To prepare for this, employers need to ensure that they are full briefed in these changes and pass this briefing on to their employees. Whilst training would be beneficial, it is important the employers take steps to raise awareness of the Bill. Employers will have a defence if they can demonstrate that they took reasonable steps to prevent employees committing discriminatory acts. To support this employers should also review policies to include reference to stereotypes based on a combination of protected characteristics. As with all legislative changes it is important that your first step is to seek advice from an expert and work out the best course of action for you and your business.