Hong Kong: Proposed changes to discrimination laws

On 30 November 2018, legislation was gazetted which proposes various amendments to the Sex Discrimination Ordinance, Disability Discrimination Ordinance, Family Status Discrimination Ordinance and the Race Discrimination Ordinance. The proposed amendments reflect eight of the recommendations from the Equal Opportunities Commission Report on the Discrimination Law Review. Key changes include extending protections against discrimination on the ground of breastfeeding and extending protections against disability and racial harassment by customers.

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UK: Government consults on mandatory ethnicity pay gap reporting

The Government has published a consultation on ethnicity pay reporting, making clear its position that this should become mandatory (possibly subject to a trial or phased approach with ‘early adopters’). The consultation is open until 11 January 2019.

The consultation is a response to a one-year-on review of progress made following the 2017 McGregor-Smith independent review. The 2017 report recommended introducing a mandatory reporting duty, but the Government’s preferred response at that time was to encourage voluntary reporting and monitor progress. Since then, both the Equality and Human Rights Commission and the House of Commons’ Business, Energy and Industrial Strategy Committee recommended consultation on a mandatory duty to report ethnicity pay gap data. Given the limited voluntary progress made in the last 12 months, the government has now agreed that a mandatory duty is required. (The review found that only 11% of employees had their ethnicity pay data collected; EHRC research published in August 2018 found that only 36% of employers collect and analyse data to identify any differences in pay and progression between different ethnic groups, and very few publish that pay gap data.) Continue reading

UK: no new caste law

The Government Equalities Office has published its response to a consultation on how best to address caste discrimination in Britain, concluding that this is best dealt with by case law and that it will remove the Equality Act obligation to legislate in this field. Current authority suggests that caste is protected to the extent that it is bound up with racial origin.

UK: board diversity report and updated executive search code

The Parker Review Committee has published its final report into the ethnic diversity of UK boards. The final recommendations are substantively the same as those published in a 2016 consultation draft. The final report recommends that there should be at least one director of colour on each FTSE 100 board by 2021 and each FTSE 250 board by 2024. There are also recommendations on ensuring the pipeline, executive search principles, and that commentary on a company’s efforts to increase ethnic diversity within its organisation, including at board level, should be included in the description of the company’s diversity policy set out in the annual report. Companies that do not meet the board composition recommendations by the relevant date should disclose why this is the case. Continue reading

UK: Pay gap reporting – EHRC recommendations and HSF review of gender pay gap reports published so far

The Equality and Human Rights Commission has recently published research into gender, ethnicity and disability pay gaps, along with a strategy for reducing those gaps, available here. The strategy’s recommendations include Government legislation to make the right to request flexible work available from day one (rather than after 26 weeks as currently) and to introduce non-transferable ‘use it or lose it’ parental leave for fathers paid at a level incentivising take-up, as well as consultation on extending the pay gap reporting duty to disability and ethnicity.

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UK: Discrimination – burden of proof ruling highlights need for employers to present positive case

In Efobi v Royal Mail the EAT has ruled that it is not incumbent on the claimant in a discrimination claim to prove a prima facie case: it is for the tribunal at the end of the hearing to consider all the evidence from all sources in determining whether there are facts from which it can conclude that discrimination has occurred. If so, the tribunal must then consider if the employer has offered an explanation for its actions proving that it did not discriminate.

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UK: Legislation – Employment law reform proposals during the Summer 2017 General Election

The main parties' manifestos for the general election all contained numerous proposed employment law reforms, the Conservatives promising "the greatest expansion in workers' rights by any Conservative government in history" while Labour included a 20 point "plan for security and equality at work" proposing radical changes to the rights of individuals and strengthening the position of unions. The political uncertainty resulting from the outcome of the election means that it is now unclear which, if any, of these proposals will see the light of day.  However, it may be helpful to those planning HR strategy to note the key areas featuring in all the main party manifestos, as these can perhaps be seen as the most likely to see change at some point.  They include:

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UK: Indirect discrimination – Supreme Court ruling makes it easier for claimants to establish prima facie indirect discrimination

Employers should review whether their policies and practices could be disadvantaging employees with a particular protected characteristic. The Supreme Court has ruled that statistics showing a disparate impact may be enough to get an indirect discrimination claim off the ground; there is no need to establish why that particular group is disadvantaged by the policy, that the claimant suffers disadvantage for the same reason, or that all of the group are disadvantaged in the same way. It is enough for the claimant to produce statistics showing that the group is disadvantaged and that the claimant is a member of that group and also suffered the disadvantage. It will then be for the employer to show that it was something other than the policy that caused the claimant's situation, or to justify the policy.

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UK: Legislation – consultations on caste discrimination, electronic balloting and reforming the tribunal system

  • On 28 March the Government Equality Office published its long-awaited consultation on caste discrimination, announced back in September 2016. The consultation will run until 18 July 2017 and seeks views on whether preventing caste discrimination is best done by legislation expressly specifying caste as an aspect of race, or by relying on case law (given an EAT ruling that caste is already protected as it falls within the existing concept of "ethnic origin" to the extent that it relates to descent). The Government is concerned that the method chosen avoids "unhelpful and socially divisive consequences such as promoting, creating or entrenching ideas of caste or heightening caste consciousness where they do not previously exist". The Government asks whether there are aspects of caste which are not related to descent and which therefore would not be protected by case law. It is also concerned that, if aspects of the public sector equality duty and positive action provisions apply to caste (either because case-law is relied on, or because they are not expressly disapplied on legislating for caste), this might encourage employers to ask people about their caste, which the Government does not support on the basis it is potentially intrusive and socially divisive.

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