Was it Harriet Harman who wrote that ‘all employees are equal, but some employees are more equal than others’? Whoever it was, they may well have foreseen some of the more interesting provisions of the latest version of the Equality Bill, which, we are assured, is still cranking its way (rather quietly) through parliament.

Although harsher critics might suggest that the most exciting aspect of the bill is debating whether or not it will ever become law, there remains much in the bill of interest – even if it is hard to get too enthused about something that may never see the light.

Whatever happens, the relative dearth of exciting employment law topics this year means that even the faintest whiff of a bill becoming law will bring out most firms in a seminar rash. Indeed, the first batch of invites has already started to land on my own e-doormat. As these cool on the printer, we must decide whether or not to trot along or just simply blag a copy of the notes from a friend.

Progress reportSo where are we with the Equality Bill? The latest version was revealed in July and, while further changes will be made, it is probably nearing its final form. Passing the bill remains one of the present government’s last manifesto promises in the field, and time perhaps remains for it to go on the statute book (though it will be tight). If it doesn’t make it in time, a change of government could spell the end of the bill, as it is doubtful the Conservatives will make its passage a priority.

This would be a shame. It has now been quite some time since it was suggested that the way forward would be for the various existing discrimination laws to be brought together into one place in an effort not only to simplify matters but also, perhaps, to bring each of the ‘protected characteristics’ (as they are now called) onto an equal footing and to move us nearer to a single concept of equality and dignity at work. It also affords the opportunity to do a quick updating exercise as required.

This has not been a simple task, as each of the separate laws raises specific distinct issues that must be catered for. For example, with sex discrimination, the law can easily work both ways (to protect both men and women simultaneously). With disability or maternity, however, the law can usually work in only one direction – protecting those with the relevant characteristics. As these may need preferential treatment, this can obviously be to the possible detriment of other groups (who cannot be protected from this by definition).

Concepts such as indirect discrimination, which do not presently feature in disability discrimination, are now to be applied universally to ensure parity. Although this will be alongside the special obligation to make reasonable adjustments, the debate about the application of indirect discrimination in this field will continue for some time. Mr Harassment and Mrs Victimisation must also make their now customary appearance at the Employment Law superhero’s ball, (perhaps awaiting a cheeky tweek in the final act of the bill’s passage).

Reading through the bill, this is all very tidy and, overall, the draft copes with these aspects well through exception, without much interrupting the clarity of a simple concept of protection for those with a ‘protected characteristic’ (which I shall now call a ‘PC’) from ‘prohibited conduct’. It also provides much-needed direct protection in the areas of gender re-assignment (whether or not under medical supervision) and marriage/civil partnership without their remaining essentially parasitic upon sex discrimination law.

The big change in practice, however, may be the movement away from the language of a prohibited act being ‘on grounds of’ a relevant characteristic to the simpler and broader wording of it being ‘because of’ that characteristic, with which we shall all have some fun. This not only fixes the impossible problem of finding a comparator in disability cases post-Malcolm (being presently someone without the disability who shares the same circumstances) but should also open the door more clearly for those with claims of associative discrimination (for example, carers and those discriminated against because friends or relatives are disabled, or of a different sexual orientation).

Positive action?There are, though, some oddities where the bill’s draughtsperson has perhaps got a little carried away. I am unsure, for example, how much use in practice the concept of combined discrimination will really be. This appears to allow individuals to bring a single claim, if female and disabled, on a ‘joint’ basis, if they believe a man or a non-disabled woman would have been promoted. At present they would simply have to bring two claims.

Equally, I am not sure the employment world is ready for the new section on recruitment that lurks in chapter 2. In keeping with much at the moment, this section in particular has been rather over-heralded in that it masquerades as something requiring ‘positive action’ but is, in fact, only permissive. In its current form, this permits employers who ‘reasonably’ think that those with a PC suffer a disadvantage or are under-represented to treat that person more favourably than another recruitment candidate.

The problems with this are manifold and lie at several levels (including what would be required for that belief to be ‘reasonable’), but in particular through the prescribed limitations. This approach can only occur where there is no ‘policy’ of preferring such candidates – interesting in the HR world, where for this to work there would need by definition to be some policy guiding managers. More significantly, it can only happen where A is ‘as qualified’ to do the work as B. Now, while this may be workable in rarified quarters where every candidate interviewed comes from the same Oxbridge college, for most of industry candidates will come in all shapes and sizes and this will either be unworkable or the subject of abuse.

It is also questionable whether this kind of positive discrimination is really the way forward. It is perhaps sad that, after almost 40 years of anti-discrimination legislation and litigation, this kind of approach is still believed to be necessary (or perhaps actually is necessary). Certainly the equal opportunity lobbies have been less than enthusiastic about this provision and approach, over the present one of ensuring a level playing field.

Perhaps we have strayed into dangerous territory in this update, but I wonder if others also find it ironic that to take positive action to ensure equality the candidates must in reality be equal. If made law, employers and unions may soon have to begin the debate of classifying the ‘equality’ of varying qualifications. Does that Media Resources qualification from Bognor really equate to Advanced Woodwork and Needlecraft at East Croydon? No doubt the equality minister has thought this all through but we must question how things will develop in the pursuit. Let us hope that such equality does not become a case of ‘four legs good, two legs better’.

So, as the draft Equality Bill lands on your desk and you decide whether or not to design the seminar invites and matching doilies, it’s right to wonder if you should throw it at the trainee or read it yourself. Perhaps both is the answer, since even if it doesn’t make it onto the books there can be little doubt that the bill signals the future of discrimination law. It will also make a handy note pad for those still practising their colouring in.

Darren Clayton, Doyle Clayton, London