What Does the Equality Bill Mean for You? The Equality Bill: 1.confirming/harmonising rights, and 2.confirming powers; strengthening equality duties Barbara Cohen July 2009 Discrimination Law Consultant

Protection against discrimination based on association and perception Existing law: “on grounds of” … race, religion or belief and sexual orientation – RRA case law: Showboat Entertainment Centre Ltd. –v- Owens [1984], Weathersfield –v- Sargent [1999] – ACAS Guidance: Employment Equality (Religion or Belief) and (Sexual Orientation) Regulations 2003 Existing law: Employment Equality (Age) Regulations: includes ‘perception’

Protection against discrimination based on association and perception ECJ decision in Coleman –v- Attridge Law [2008] IRLR 722 EC Framework Employment Directive must be interpreted as not being limited to protecting people who are themselves disabled, but also protects an employee who is the main carer of her disabled child, where the disability of the child is the ground for the less favourable treatment she receives or the harassment she suffers.

Protection against discrimination based on association and perception EQUALITY BILL Not mentioned on the face of the Bill Clause 13 Direct Discrimination: A discriminates against B if “because of a protected characteristic, A treats B less favourably than A treats or would treat others.” Explanatory note 75: more consistent approach, victim not required to have one of the protected characteristics; therefore includes direct discrimination based on association or perception for all protected characteristics.

Protection against discrimination based on association and perception EQUALITY BILL Clause 24 Harassment: A harasses B if A engages in unwanted conduct related to a relevant characteristic which has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. “related to” - wide scope - would protect B where B is associated with, or perceived to have, protected characteristic Not mentioned in the Bill or in explanatory notes.

Equality in public procurement as key element of public sector equality duty Existing law: EU Treaty principles: non-discrimination, equal treatment, transparency, proportionality EU law on public procurement Directive 2004/18 on the coordination of procedures for the award of public works, supply and services contracts clarifies: – possibility of incorporating social issues into contract specification, award criteria and contract conditions – encouraging SMEs – excluding suppliers with findings of unlawful discrimination

Equality in public procurement as key element of public sector equality duty Existing law: Race, Disability and Gender Equality Duties - applies to procurement function Guidance: CRE, DRC, EOC; OGC; and tailored guidance (local government, health etc.) – how to use purchasing power to promote equality when purchasing works, goods and services; Service provision and workforce performing the contract – how to build equality into the procurement process: Equality Impact Assessment Encouraging supplier diversity Relevance of equality at each stage of the process

Equality in public procurement as key element of public sector equality duty Equality can be relevant at each stage of procurement: 1.Planning *- consultation, EqIA, packaging, attracting diverse suppliers 2.Specification - what do you want to buy 3.Advertising and selecting tenderers 4.Invitation to tender - clarifying relevance of equality 5.Award of contract - equality criteria where relevant 6.Conditions of contract* - how contract is to be performed 7.Monitoring* - encouraging/enforcing equality

Equality in public procurement as key element of public sector equality duty EQUALITY BILL Clause permits regulations imposing specific duties (enabling better performance of the general equality duty) to impose duties in connection with an authority’s public procurement functions. Could apply to all public authorities listed in EU Directive Only contracts above threshold values; – NB far fewer restrictions under EU Directive for Part B Services contracts

Equality in public procurement as key element of public sector equality duty EQUALITY BILL Specific duties consultation: Q. 16 Are specific duties imposing equality duties on contracting authorities needed? Should authorities be required:- Q. 17 to state how they will ensure equality factors are considered as part of their procurement activities to help deliver their equality objectives? Q. 18 to consider using equality related award criteria where they relate to the subject matter of the contract and are proportionate? (See Directive Art. 53, recital 1) Q. 19 to consider incorporating equality related contract conditions where they relate to the performance of the contract? (See Directive Art. 26, recital 33)

Equality in public procurement as key element of public sector equality duty EQUALITY BILL Specific duties consultation: Q. 20: what would be the impact (benefits, costs, risks) of regulatory proposal aimed at dealing with suppliers who have breached discrimination law? (See Directive Art. 45(2)(d), recital 43) Q. 21 Should a national equality standard be established for use in the procurement process - as a specific duty? Missing questions: Specific duties to provide clarity: equality related criteria in selection, in drafting specification, monitoring/enforcing performance of equality requirements