Following the launch of the consultation on mandatory ethnicity and disability pay gap reporting, the government has published a call for evidence looking at other policies that will form part of the Equality (Race and Disability) Bill. The call for evidence tackles six main areas of equality law, including equal pay and pay transparency, considering the existing legal framework, as well as areas for reform. It seeks views and evidence to inform future policy development.
Equal Pay
Extension to disabled and ethnic minority workers
The government’s intention to extend the equal pay framework (which currently only applies to gender) to ethnic minority and disabled workers has been well publicised. In the call for evidence, the government explains that, in contrast with the thousands of equal pay claims being brought each year, there are only limited instances of pay discrimination claims being submitted by disabled or ethnic minority workers. It notes that the discrepancy could suggest that equal pay offers a stronger form of redress but seeks views as to alternative explanations.
The government recognises that there are challenges inherent in the existing equal pay framework and raises the possibility that the current scheme may not offer the right model on which an extension of rights should be based. In particular, it acknowledges that the rules of procedure, governing how equal pay claims are heard, and the use of job evaluation schemes, could be simplified or adjusted for new claim types.
Outsourcing
The government considers that outsourcing has led to inequalities and the underpayment of staff. The current equal pay regime only allows a claimant to compare their terms with another worker employed by the same or an associated employer. This prevents claims being brought by outsourced workers comparing their terms with directly employed employees. The government notes that there is no existing definition of outsourcing and that it can encompass a range of situations, often involving complex labour supply chains. It seeks views on how the law could address this range of scenarios, without placing unreasonable expectations on companies, and where liability for equal pay claims brought by outsourced employees should lie.
Enforcement
Less than 1% of equal pay claims brought over the last 10 years have been disposed of via a full employment tribunal hearing. The government is therefore looking at how the enforcement regime could be improved. It proposes establishing an Equal Pay Regulatory and Enforcement Unit which would have the involvement of trade unions. It envisages that the new unit could have the power to provide legal advice and representation and to facilitate informal dispute resolution through mediation, arbitration or collective conciliation.
Pay transparency
To achieve its goal of ending pay discrimination at work, the government is considering other steps to strengthen equal pay rights. It is looking to build an evidence base to determine whether changes to pay transparency measures would help achieve this. Possible transparency measures include:
- Providing salary or salary ranges in job adverts,
- A ban on asking candidates for their salary history,
- Publishing data on pay, pay structures and criteria for progression,
- Providing employees with information on their pay level and how their pay compares to others performing the same role.
However, it recognises that such measures can involve a cost burden and so is seeking evidence as to whether such pay transparency measures would be proportionate and effective.
Combined discrimination
In the call for evidence, the government reaffirms its commitment to the implementation of s.14 Equality Act 2010 which prohibits discrimination based on a combination of two protected characteristics. This is a dormant provision of the Equality Act that was not brought into force when the legislation was enacted. The government seeks evidence and views on the prevalence of discrimination due to a combination of protected characteristics and the existing scope of the provision. For more information on combined discrimination, see our blog
Double or nothing. Would protection against dual discrimination improve the odds for claimants?
Public sector equality duty
The public sector equality duty contained in s.149 Equality Act 2010 applies not only to public bodies but also to private sector bodies exercising public functions. The duty requires bodies to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between different people. The call for evidence seeks views as to the extent to which non-public bodies are complying with the requirements of the duty and whether further steps should be taken to ensure compliance.
Sexual harassment in the workplace
The Employment Rights Bill includes a power for the government to make regulations specifying steps that employers must take to prevent sexual harassment occurring. The government is seeking evidence of what steps are effective to reduce or eliminate workplace harassment (such as training, reporting systems and the investigation of complaints) to inform the development of these regulations.
It is also looking to gather further evidence of the implications of extending protection against sexual harassment to volunteers.
Socio-economic duty
The government intends to enact the socio-economic duty contained in s.1 Equality Act 2010 which requires public authorities to consider how strategic decisions might help to reduce the inequalities associated with socio-economic disadvantage. This has already been brought into force in Wales and Scotland but not in England. It is seeking evidence to support the implementation of the duty and to ensure that it is as effective as possible.
Commentary
The call for evidence reaffirms a number of commitments to equality law reform. The most significant of these is the extension of equal pay laws to disabled and ethnic minority workers. Given the complexity and delay that is inherent in the existing equal pay framework, it is welcome news that the government is considering reforms to certain of the more challenging aspects of the regime.
Pay transparency has not previously featured in the government’s proposed reforms to equality law. It appears that the government is considering adopting some of the measures included in the EU Pay Transparency Directive which EU member states are currently in the process of transposing.
For more information, see our dedicated webpage on the EU Pay Transparency Directive.
Next steps
The call for evidence remains open for 12 weeks, closing on 30 June 2025. It is one of several evidence gathering exercises which the government intends to conduct to shape the Equality (Race and Disability) Bill. The Bill is expected to be published in draft before the end of the current parliamentary term.