Labour’s race for equality

Last month, we reported on Labour’s manifesto promises on employment law. This month, at its race conference, Labour announced plans for a new race equality act.  The Guardian reported proposals to:

• Extend the full right to equal pay that now exists for women to disabled people and black, Asian and minority ethnic workers.
• Enact protections against ‘dual discrimination’, where people face prejudice because of a combination of protected characteristics.
• Place a duty on public services to collect data and report on staffing, pay and, where relevant, outcomes by ethnicity.
• Introduce mandatory ethnicity pay gap reporting.

Although the reception has been largely positive, some commentators have looked behind the headlines. Will the proposals effect the intended change?

Equal pay

At present, someone who suffers a disparity in contractual terms, including pay, because of their race or disability can bring a race or disability discrimination claim. Any disparity in contractual terms on the grounds of sex can be brought as a sex discrimination claim or an equal pay claim.  

Under Labour’s plans, it would appear that you could pursue either a standard discrimination claim or an equal pay claim for a disparity in contractual term on the grounds of sex, race or disability.

Equal pay claims are highly complex, often costly, and slow to conclude. Although there can be advantages in some cases, extending the ability to claim equal pay to race and disability may not be a particularly effective way to address pay disparity for ethnic minorities or individuals with a disability.

Dual discrimination

When the Equality Act 2010 came into force, provisions that enabled individuals to claim dual discrimination were not introduced. These provisions would, for example, allow a black woman who had been discriminated against to claim that she had been discriminated against on the grounds of two protected characteristics – due to being both black and female – in a single claim.  

In practice, however, the absence of the dual discrimination provisions is not particularly problematic in most cases. Recent menopause-related discrimination cases have shown that the employment tribunal will find that a claimant has been discriminated against on two or more grounds under separate claims. For example, claimants claiming discrimination as a result of menopause have been successful in claims for all or a combination of disability, age and sex discrimination.

Comment

Suppose Labour has the opportunity to follow through on its manifesto: further scrutiny will be required to avoid adding even more complexity to the existing legislation.  The Guardian further reports that the extension of the right to equal pay would be consulted on and phased in to give employers time to adapt. A simpler regime for claiming pay discrimination based on any protected characteristic would be better for both employers and employees, reducing cost, time and stress for both parties. 

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