Equality law reforms: Government issues call for evidence

The Government has issued a call for evidence seeking views and evidence on its plans for bolstering equality laws through its Equality (Race and Disability) Bill. Its plans include extending the Equality Act’s equal pay provisions to race and disability, introducing measures to improve pay transparency, bringing the Act’s combined discrimination provisions into force and specifying what are to be regarded as the reasonable steps an employer should take to prevent sexual harassment. The call for evidence follows on from the Government’s publication of a consultation on how to introduce ethnicity and disability pay gap reporting which will also be included in the Equality (Race and Disability) Bill.

The call for evidence seeks evidence and views on the following:

Equal Pay

The prevalence of race and disability pay discrimination

The Government it is interested in evidence relating to the overall prevalence of race and disability pay discrimination; how levels and patterns of pay discrimination may differ across different situations, sectors, employer types or types of work; and how these levels and patterns of pay discrimination may differ where the discrimination is based on sex, race or disability.

Making the right to equal pay effective for ethnic minority and disabled people

Claims about sex discrimination relating to contractual pay must be brought as equal pay claims, whereas anyone who has experienced race or disability discrimination relating to contractual pay must bring direct or indirect discrimination claims. The call for evidence notes that far fewer race and disability discrimination claims relating to contractual pay are brought than equal pay claims in relation to sex, and considers this discrepancy could suggest that the equal pay regime offers a stronger form of redress. It is therefore considering whether enabling those bringing race and disability pay claims to compare themselves with colleagues doing different work of equal value, and introducing new remedies, such as permanent changes to employment contracts, could remove barriers to redress.

It is considering either extending the equal pay regime to cover race and disability; creating an amended version of the scheme for race and disability; or take a different approach.

Measures to prevent use of outsourcing to avoid paying equal pay

Currently equal pay claims can only be brought where an employee is able to compare themselves with another employee employed by the same or an associated employer at the same establishment, at a different establishment where ‘common terms apply’ or where a single body is responsible for setting the contractual terms of both employees and that body is in a position to ensure they are treated equally. These requirements therefore prevent many outsourced workers from comparing their contractual terms with those of ‘in house’ employees, as they are employed independently. The Government is therefore considering enabling comparisons between outsourced workers and "in-house" employees, with a view to preventing employers from outsourcing services in order to avoid paying all staff equally. The Government seeks views on how to define “outsourcing” and whether it should be the employer or end-user client who is liable for unequal pay of outsourced workers. It also seeks views and evidence on the pattern of pay discrimination experienced by outsourced workers of a particular race, disability or sex.

Improving enforcement of equal pay rights

To assist with enforcement of equal pay rights, the Government proposes to establish an Equal Pay Regulatory and Enforcement Unit, with the involvement of trade unions. The call for evidence notes that the vast majority of equal pay enforcement action requires individual complainants to bring their own claims through litigation, with equal pay claims being amongst the highest in number in the Employment Tribunal. The Equality and Human Rights Commission (EHRC) also has various enforcement powers. The Government is considering how enforcement of equal pay could be improved and what functions the Equal Pay Regulatory and Enforcement Unit should have. It therefore seeks views and evidence on the effectiveness of the current enforcement of the equal pay scheme by the EHRC, the effectiveness of the current system for individuals to bring equal pay claims and whether anyone other than the affected person or an organisation other than the EHRC should be able to bring equal pay claims.

Improving pay transparency

The Government is considering adopting pay transparency measures which could:

• Require employers to provide the specific salary or salary ranges of a job in job adverts or prior to interview
• Prohibit employers from asking candidates their salary history
• Require employers to publish or provide employees with information on pay, pay structures and criteria for progression
• Require employers to provide employees with information on their pay level and how their pay compares to those doing the same role or work of equal value, and
• Require employers to identify actions that they need to take to avoid equal pay breaches occurring or continuing.

The Government seeks views and evidence on the possible impact of such measures on pay equality in relation to sex, race and disability on different sectors, types of work and types of pay and employers of different sizes. It also asks whether certain transparency measures are more effective in addressing discrimination in relation to certain protected characteristics.

The Government also seeks view on the effectiveness of the current power for employment tribunals to order employers to carry out equal pay audits where they are found to have breached equal pay laws. It seeks evidence on how frequently employment tribunals are using this power and the effectiveness of the consequences of non-compliance (£5,000 fine, with further penalties of up to £5,000 until the order is complied with).

Combined discrimination

The Government is committed to ensuring discrimination protection for those who suffer discrimination because of a combination of two relevant protected characteristics, for example Muslim women. Combined (or dual) discrimination is already contained in the section 14 Equality Act 2010 but has never been brought into force. The Government seeks evidence about the prevalence of combined discrimination, the effectiveness of actions that can be taken to protect against it and the effectiveness of the remedies available. It is also interested in the extent to which indirect discrimination, harassment and victimisation in relation to a combination of protected characteristics is prevalent and the prevalence of discrimination on the basis of a combination of protected characteristics that includes pregnancy and maternity and marriage and civil partnership (protected characteristics which are not currently included in section 14).

Creating and maintaining workplaces free from sexual harassment

Reasonable steps to prevent sexual harassment

Since October 2024, employers have been under a statutory duty to take reasonable steps to prevent sexual harassment of their employees in the course of their employment, including by third parties. The Employment Rights Bill will extend this to a duty to take “all reasonable steps” and also contains a power to make Regulations specifying what are to be regarded as the reasonable steps an employer should take. The call for evidence indicates that this power will only be used where this is proportionate and there is a clear evidence base supporting the efficacy of particular steps in preventing workplace sexual harassment. The Government seeks evidence of effective steps employers can take to reduce or prevent workplace sexual harassment. In particular, it seeks evidence on:

• The effective steps that employers can take in relation to company culture, staff training, enforcing policies, reporting systems and procedures and recording and investigating complaints.
• How best practice may potentially differ according to an employer's size, sector, or other factors.

Protection for interns and volunteers

The Government plans to introduce protection against sexual harassment for interns and volunteers. The call for evidence indicates that it already has a clear picture (from an earlier consultation) of the range of issues that need to be taken into account when considering extending protection to interns. However, it would like to explore further the issues raised in relation to extending protection to volunteers. The call for evidence notes that there is a wide diversity of volunteering activity and relationships between volunteers and the organisations that engage them. This could pose difficulties in implementing a blanket arrangement. Evidence is sought on:

• The effect of expanding protection against sexual harassment to different types of volunteers
• Whether protection should only be extended to particular categories of volunteers
• The potential challenges or unintended consequences for employers if protection is expanded to different groups of volunteers
• Whether some types of organisation may be more likely to be adversely affected by the expansion than others
• The steps that could be taken to mitigate potential risks and challenges, and
• Other approaches or steps that could be taken to protect volunteers from sexual harassment.

What happens next?

The Government has previously indicated that it will publish the draft Equality (Race and Disability) Bill for consultation before the end of the current Parliamentary session in July. Responses to the call for evidence are required by 30 June which suggests timing is tight for publication by July. As with the Employment Rights Bill, there will be also be further consultations and secondary legislation needed and so it is likely that the earliest any of these changes will be in force is 2026.

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