Monday, 26 April 2010

What will the new Equality Act will do for you?

The Equality Act and its aspirations for the LGBT Community

The Equality Bill was approved by the House of Commons on 6 April 2010 and is expected to receive Royal assent within the next week. The new Equality Act is expected to start to come into force from October 2010. Its development has been five years in the making and its progress through parliament something of a political ‘hot potato’, as Pope Benedict XVI’s comments earlier this year encouraging Catholic Bishops in England and Wales to fight the UK’s Equality Bill with “missionary zeal” emphasised. Whilst there have been different views on what the new law will achieve, it’s overarching purpose has been to simplify existing discrimination laws by putting them together in a single place, and having greater consistency between the protections. The new Equality Act will replace almost all existing discrimination laws, it also aims to strengthen the law further to protect the LGBT community.

Some of the changes include the following:

  • All public bodies will be required to consider equality issues when exercising their functions as a public body. In particular, public body policies should aim to:
    • Eliminate discrimination and harassment on the grounds of a person’s actual or perceived sexuality;
    • Advance equal opportunities between gay, bisexual and straight persons;
    • Foster good relations between gay, bisexual and straight persons.

For example, local authorities should consider creating and promoting services to benefit the LGBT community specifically in order to assist integration and foster good societal relations.

  • The prohibition on civil partnerships taking place in religious premises has been removed – this amendment was made recently to the Bill during the House of Lords report stage. The government has made it clear however that this will place no obligation on any faith or denomination to do so if it does not wish to
  • Employers will be allowed to take “positive action” in recruiting candidates where one candidate is from an under-represented group. For example, where an employer interviews A and B, and both are as qualified as each other and A is female, the employer might decide to recruit A instead of B because women are under-represented in that workplace. This is likely to be harder to implement in situations involving gay people given that sexuality is frequently an invisible issue.
  • At present, if an employee brings a claim for sexual orientation discrimination against an employer, a Tribunal can only make recommendations regarding improvements in the workplace in limited circumstances. In most cases, employees will only bring a claim against an employer once they have left employment and recommendations cannot be made in such cases. Extending the power of employment tribunals will mean that Tribunals can make recommendations that benefit the whole workforce and not just the individual who brought the claim, even if the successful claimant has left the organisation. For example, if a lesbian is bullied at work because of her sexual orientation, the tribunal could recommend that her employer conducts some focussed awareness training to ensure homophobic bullying is dealt with specifically. A failure to follow tribunal recommendations could form important evidence in future tribunal claims.
  • The Equality Act also protects against “dual discrimination”. This is where an individual considers that discrimination has occurred on a combination of grounds – an example might be a lesbian couple refused IVF treatment on the basis that they are not trying “naturally” to conceive. This is unlikely to affect gay men, and so it would be hard to show that the treatment was on grounds of sexual orientation alone, when in reality it is based on a combination of discrimination due to sexuality and gender. However, the new dual discrimination protection applies only to two (and no more than two characteristics).
  • The Equality Act will also eliminate homophobic discrimination based on a perception of someone’s sexuality (even if they are not of that sexual orientation) or if they are associated with someone of a particular sexuality. For example, a child who is teased at school for having gay parents might be able to challenge the way the school implements its anti-bullying policy if the policy does not tackle associative discrimination.
  • The Bill will make it unlawful for private members’ clubs, and other member associations, to discriminate against gay members or guests of members. This means that a gay person invited to a private club could not be refused a drink, for example. However, it does not mean that the private club would have to allow a gay person to become a member even if the reason for the refusal is on the grounds of sexual orientation.

Having said all of the above, the new law does still leave some holes in anti-discrimination legislation: one area that is specifically excluded from the Bill is protection against harassment on the grounds of sexuality by goods, facilities and service providers. In other words, a lesbian cannot be refused a room in a hotel because of her sexual orientation, but if she was subjected to harassment by an employee at the hotel, she could not claim for harassment. In this example, however, she might still be entitled to bring a claim for discrimination. Gay people are also not currently protected against harassment on grounds of sexual orientation in the context of education in schools. During the consultation period prior to the drafting of the new laws, good evidence was produced to justify extending protection to gay people outside of the employment sphere, in particular to tackle homophobic bullying in schools, but no such provision is actually contained in the Act.

Overall however, although in some aspects it represents missed opportunities, the Equality Act is welcomed and is a positive step towards a more integrative and equal society.

Kiran Daurka, Solicitor at Russell Jones & Walker

www.rjw.co.uk

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