Diarmuid Deeney: New equality law offers a recipe for confusion

Some five years in the making, and following extensive consultation, most of the provisions of the new Equality Act take effect from today. I find it surprising that this piece of legislation, one of the most important and wide ranging in recent years, has slipped by largely unnoticed by the public.

Legislation which seeks to eradicate prejudice and discrimination in the workplace would be welcomed by all right-minded individuals involved in industrial relations. This Act has, however, attracted some controversy.

Lynne Featherstone, then the Liberal Democrat equality spokesperson, accused the last Labour government of "running scared of anyone who says 'boo', condemning women to hideous unequal pay for another generation".

The Act has also attracted criticism from the Conservatives who have claimed the legislation is "ill thought-out and unworkable". The new Government has already indicated misgivings about parts of the legislation, particularly with regard to positive action programmes.

There can be no doubt that the new Act could not have come at a worse time for businesses. In the private sector, employers are struggling with the ever-present threat of a double dip recession. The last thing they want to do is to spend time (and, in all probability, money on legal and associated fees) reviewing advertising and recruitment

policies together with contracts of employments, service agreements and other policies to ensure compliance with the new legislation.

The Act also brings yet more new terminology and definitions to be mastered – "protected characteristics" and "perceptive discrimination" spring to mind. The new definition of disability discrimination will

make it much easier for employees and those seeking employment to bring a claim based on this protected characteristic.

Employers are also anxious about completely new heads of claim – what is this? – which can be made, particularly with respect to associative discrimination and harassment. These concerns assume added significance when placed against the background of the recent release of statistics from the Employment Tribunal Service which show a staggering rise of 56 per cent in filed claims for the year 2009-10.

This huge rise in claims is due at least in part to the challenging economic climate. Applications can be submitted online by employees themselves and crucially for no fee. Rarely are costs awarded against an unsuccessful claimant.

Similarly, there is concern in the public sector. Already under threat of widespread, substantial or even catastrophic cuts in funding, there is little appetite to divert already scarce resources to the task of assembling, collating and publishing gender pay statistics.

On the positive side, it can only be a good thing that all

discrimination legislation is now governed by a single act and under

the umbrella of one body –The Equality and Human Rights Commission. However, a great opportunity to bring clarity to cumbersome and complex law has been missed.

Take, for example, the new and convoluted concept of "combined discrimination", where a person suffers discrimination by reference to two protected characteristics. Why stop at two? A person who believes they have suffered because of three or more protected characteristics will now have to bring separate claims in respect of each head of discrimination. Nor is it clear to me why pregnancy/maternity or married/civil partner status are excluded for the purposes of combined discrimination claims.

If these questions perplex many employment lawyers then we really must spare a thought for owners and managers of SMEs.

The legendary economist and Nobel laureate Milton Friedman once

declared in typically bombastic fashion that "a society that puts

equality ahead of freedom will end up with neither". Although I do not share this simplistic view, it is a fact that for the past 40 years we have struggled to tackle discrimination and prejudice with a variety of legislative initiatives. Gross inequalities remain in the workplace.

Based on present trends, female managers will have to wait 57 years before their take home pay is equal to that of their male colleagues, according to the Chartered Institute of Management, while the Institute for Public Policy Research recently estimated that black young people aged between 18 and 24 were more than twice as likely to be unemployed as whites of similar age.

Is this Equality Act well intentioned? Undoubtedly it is. Will it

eradicate discrimination and prejudice in the workplace? Only time and eventually the decisions of the higher courts will tell. In the meantime, there will be a lot of confusion, uncertainty and many more claims to the Employment Tribunal.

Diarmuid Deeney is an employment law specialist and partner in the Sheffield office of Kennedys