On 26 June, Harriet Harman, Minister for Women, announced the Government’s proposals in a White Paper entitled “Framework for a Fairer Future – the Equality Bill”. While acknowledging that discrimination laws have aided progress on equality over the last 40 years, she recognises that they have become extremely complex. She has rightly declared that it is time to “declutter” the law. At the same time, she sets out the Government’s ambitions to strengthen the law to achieve greater equality across society for the future.
In seeking to deliver public policy objectives, a new equality duty will be placed on public bodies, to bring together the three existing duties (with respect to race, disability and gender) and extend it to gender reassignment, age, sexual orientation and religion or belief.
Inequality cannot be tackled if it is hidden. As such, transparency is a key theme in the White Paper. Public bodies will be required to report on important gender inequalities in pay, and the employment of ethnic minorities and the disabled. Particular emphasis is placed on the fact that £160 billion is spent by the public sector on private sector contracts every year. The equality duty will require public bodies to tackle discrimination and promote equality through their purchasing function. This has significant implications for the legal profession. Not only will lawyers be called upon to advise public sector bodies on how best to meet their duties but also to advise clients in the private sector whose business is wholly or partly dependent upon the provision of goods and services to the public sector. As service providers themselves, law firms will have to look to their own merits, in addressing the diversity agenda and equal pay issues.
The topic of pay is of no less interest to the legal profession than it is to other service providers. The reaction to the Government’s proposals for the Equality Bill are likely to be mixed. It is intended to ban secrecy clauses which prevent employees discussing their own pay. This will not mean that people will be compelled to disclose their pay details, but in situations where colleagues work closely together, on similar work, but are paid different rates or have different packages, the Government believes that it is right that they should be able to compare if they want.
Lawyers may need no encouragement to do so. In practice, their access to information may prove a real inhibitor to assessing the fairness of their pay.
The Government is keen to promote equal pay audits, entailing job evaluation. While these will not be compulsory (a matter of great relief to many employers) the Government will examine the impact which such audits have, in narrowing the pay gap and spreading best practice.
The White Paper reports that in the financial sector, which employs over one million people, the gender pay gap is 41.5% compared to the national figure of 12.6%. It is noted that there is an important role for the Equality and Human Rights Commission to play in highlighting such inequalities: the Commission will launch a series of enquiries into inequality in the financial and professional services and construction sectors, beginning this year.
Another development which has already generated some controversy is the commitment to permit further positive action where, all other things being equal, an employer can (but is not required to) take steps to recruit underrepresented groups or develop talent within these groups in their workforce. Is this likely to be embraced by the legal profession in practice? Those firms committed to a true meritocracy may well take the stance that, amongst highly qualified, skilled and talented lawyers, there will be many factors on which to rely in differentiating between job applicants or those under consideration for training or promotion.
One way or another, the Bill will make interesting reading for the legal profession. Meanwhile, there is some very tricky drafting to be undertaken by parliamentary draftsmen (and women).
Rachel Dineley is a partner and head of the diversity and discrimination unit at Beachcroft