The draft Equality (Race and Disability) Bill was announced in the King’s Speech in July. The new Labour government confirmed that the draft bill delivers its manifesto commitments to enshrine in law the full right to equal pay for ethnic minorities and disabled people, and to introduce mandatory and disability pay reporting for larger employers with more than 250 employees.
We have had over 50 years of equal pay law in relation to the protected characteristic of sex, with claims for equal pay being notorious for both their complexity and the length of time it takes to litigate.
Currently, if an employee wanted to make a claim that they are paid less than their colleagues because of race or disability, they would need to bring it as a discrimination claim under the Equality Act 2010. It is questionable whether introducing the new right to equal pay would be any more advantageous when there is already an existing avenue to bring claims, however we will have to wait and see the detail of the legislation once it has been published. Despite the uncertainty over whether any new rights will be created, without doubt the new legislation has certainly raised awareness of the issue and put equal pay regarding race and disability firmly on the table.
The data is widely available showing pay disparity for both ethnic minority groups and disabled people. The new government is committed to tackling the disparity by building on the success of the gender pay gap reporting. However, a consultation by the previous Conservative government on ethnicity pay gap reporting resulted in no change with the metrics and methodology of the reporting being found to be too complex. Again, we are awaiting the consultation document so that we can consider the proposed changes in detail.
In the meantime, there is a real opportunity now for employers to prepare for the changes on the horizon. Consideration should be given to reviewing data and identifying any potential gaps. Undoubtedly, some employers will be concerned that materials created may be disclosable in relevant future litigation, so specific legal advice should be sought.
The government has promised to carry out a thorough consultation, providing employers with the chance to shape the development of the law in this area. Employers with a genuine commitment to diversity, equity and inclusion will inevitably navigate the changes from a position of strength.
Ann Frances Cooney is a partner and employment specialist at DWF
