Call for evidence on equality law

The Government has launched a call for evidence on equality law seeking evidence and views on potential reforms to equality law. Responses will inform the Government’s upcoming Equality (Race and Disability) Bill, and other measures including the Employment Rights Bill. Although the focus is on extending equal pay protections under the Equality Act 2010 beyond sex to race and disability, some of the more minor details in this call for evidence remain important. For example, pay transparency measures are back on the policy agenda, and the Government is also considering whether interns and volunteers should be protected from sexual harassment in the workplace.

In this Law-Now, we look in more detail at the key areas covered by the call for evidence and what further employment-related reform might be expected as a result.

Policy areas covered

The call for evidence covers six main policy areas, as part of the Government’s broader agenda to make work pay. These include: (i) equal pay; (ii) improving pay transparency; (iii) strengthening protections against combined discrimination; (iv) ensuring the public sector equality duty is met by those exercising public functions; (v) creating and maintaining workplaces and working conditions free from harassment; and (vi) implementing the socio-economic duty. The key areas are discussed in more detail below.  

1.     Equal Pay

The Government is considering extending the current equal pay framework which prohibits pay discrimination on the basis of sex to cover pay discrimination on the basis of race and disability. This would enable employees to bring equal pay claims using comparators of a different race or disability status within the same employment rather than relying on the existing general discrimination provisions in the Equality Act 2010. The Government is seeking views on the following specific matters:

1. Prevalence and patterns of pay discrimination. The call for evidence states that ethnic minority groups typically receive lower average wages than their white counterparts, based on their demographic, educational, occupational, family and health characteristics. Similarly, a disability pay gap exists between disabled and non-disabled employees across most impairment types. The call for evidence seeks evidence of pay discrimination and suggested measures to reduce this.
2. Making the right to equal pay effective for ethnic minority and disabled people. The Government is looking at barriers to redress faced by those who may have experienced pay discrimination on the basis of race or disability. The options include the existing equal pay regime, whether an amended version of the regime should apply or whether a different approach would be better.
3. Ensuring that outsourcing of services can no longer be used by employers to avoid paying equal pay. Currently, under the equal pay regime, employees must compare their pay to that of an actual comparator doing like work, work rated as equivalent or work of equal value for the same or an associated employer, which excludes outsourced workers from comparing their terms with in-house staff. Evidence suggests that outsourcing can increase pay inequality, prompting the Government to consider whether outsourced workers should be able to make equal pay comparisons with in-house employees. The Government is also examining how to structure protections and determine liability for equal pay claims in the context of the varied nature of outsourcing arrangements.
4. Improving enforcement, including through the implementation of the Equal Pay Regulatory and Enforcement Unit with the involvement of trade unions. The Government is looking at how enforcement of the equal pay regime could be improved, including the establishment of an Equal Pay Regulatory and Enforcement Unit with the involvement of trade unions. The Government considers that there are a number of ways in which that unit could strengthen equal pay provisions and overcome barriers to redress (such as the high volume of equal pay claims brought by individuals in the employment tribunals that has contributed to a significant backlog of claims) either in conjunction with the Equality and Human Rights Commission (EHRC) or through new functions. For example, the Unit could progress litigation by providing legal advice and representation to others, bringing legal proceedings in its own name, or intervening in legal proceeding brought by others. It could also make use of other enforcement powers such as seeking injunctions and entering into statutory agreements with employers, and facilitate informal dispute resolution.

2.     Improving pay transparency

The Government is committed to a range of steps to expand and strengthen equal pay rights and pay gap reporting requirements. Possible measures to achieve this commitment include making it mandatory to provide salary or salary range information in job advertisements, prohibiting asking candidates about their pay history, and providing employees with information on their pay level and how their pay compares to those doing the same role or work of equal value (similar to the existing right under the equal pay regime which permits certain information disclosures in relation to pay).

The call for evidence notes that existing legal requirements for pay transparency are limited to gender pay gap reporting and equal pay audits where there has been an equal pay breach. The Government is considering whether additional pay transparency measures would be proportionate and effective in improving pay equality.

The Government is consulting separately on mandatory ethnicity and disability pay gap reporting. For further information on the consultation, see our Law-Now Government launches consultation on mandatory ethnicity and disability pay gap reporting for employers.

3.     Strengthening protections against combined discrimination

Currently, individuals cannot bring claims for “combined discrimination” on the basis of a combination of two protected characteristics (e.g. a black woman experiencing discrimination not just because of race or sex but because of her particular combination of protected characteristics). This is because section 14 of the Equality Act 2010 which deals with combined discrimination was never brought into force. The Government has stated in this call for evidence that it is committed to bringing this provision into force.

4.     Creating and maintaining workplaces and working conditions free from harassment

The Government considers that better evidence of what works to reduce sexual harassment in the workplace is needed. It is therefore seeking evidence and views on what steps employers can take to effectively reduce and/or prevent sexual harassment and where work to strengthen the evidence base should be prioritised.

The aim is to inform any regulations enacted under provisions in the Employment Rights Bill to specify steps that employers must take to prevent sexual harassment. The Government is also considering extending existing workplace protections against sexual harassment to volunteers and interns who are not covered by those protections because they are linked to employment status. The Government is already clear about the range of matters that need to be taken into account in relation to interns (as a result of a consultation carried out by the Women and Equalities Unit in 2021), but would like to further explore the issues raised in relation to extending these protections to volunteers.

Finally, as part of its manifesto commitment to use every tool available to target perpetrators and address the root causes of abuse and violence, the Government also seeks evidence as to any other steps that should be considered to prevent workplace sexual harassment.

Comments

The question remains whether the existing equal pay regime will be extended to include disability and race, or whether a different framework will be implemented. It is widely recognised that bringing an equal pay claim in the UK is a long and difficult process. While it is not specifically addressed in this call for evidence (since it is the subject of a separate consultation), the extension of mandatory pay gap reporting to race and disability would be a significant issue for employers.

Although the timeline for implementation is not yet known, it is anticipated that these reforms will be long-term, providing employers with time to prepare. In the meantime, there is still time to contribute to the call for evidence before it closes on 30 June 2025 in order to help shape the Equality (Race and Disability) Bill.

For further information on the Employment Rights Bill, see our Employment Rights Bill hub.

If you would like to discuss any aspect of the employment-related reform outlined by the Government and its potential impact on your business, please get in touch with your usual contact in the CMS Employment team.

This article was co-authored by Rajdeep Virk, Solicitor Apprentice.