There are certainly elements of the Bill that simplify things. Gone are the discrepancies between the treatment of racial discrimination on the grounds of race or national or ethnic origin, and discrimination on grounds of nationality or colour.

And gone are the uncertainties about just who is protected, resulting from variations in the wording of the current legislation - for example “a person discriminates against a disabled person” in the Disability Discrimination Act but “a person discriminates against another … if on racial grounds” in the Race Relations Act. We now have direct discrimination “because of” any of the nine “protected characteristics” - wide enough to cover situations in which, for example, an individual is not disabled, but is treated less favourably because of the disability of someone else (a child or partner for example).

But, although the Bill has simplified these and other areas, equally there are a number of areas where it is unclear. One of the areas of the Bill that raises questions is “positive action”, particularly in relation to disability. At present, there is nothing to stop employers taking action in favour of disabled individuals (there is no provision allowing people to argue that they have been discriminated against because they don’t have a disability), and the explanatory notes accompanying the Bill indicate that this position will continue: “it is not discrimination to treat a disabled person more favourably than a person who is not disabled”. However, it is difficult to match this statement with the wording of the Bill itself, which suggests that positive action towards disabled people will be lawful only where the employer is complying with the duty to make reasonable adjustments or if the action meets the requirements of clause 152 or 153 on positive action.

Clause 152 certainly widens the grounds on which positive action is permitted, but it does not apply to discrimination in respect of recruitment or promotion, which is covered by clause 153. And clause 153 is interesting because, although it has been widely publicised as permitting positive action where there is a “tie-breaker” recruitment situation between two equally qualified candidates, an examination of the clause indicates that the exception is not necessarily applicable only to the final decision of whom to recruit. The clause relates to direct discrimination “in connection with recruitment or promotion”, and “recruitment” is defined as “a process for deciding whether to offer employment to a person”. Surely this could go well beyond the final decision about whom to recruit, and extend to selection for the interview shortlist or additional coaching prior to selection for the shortlist. And what is clear is that, in order for such positive action to be lawful, person A who is treated more favourably than person B must be “as qualified as” person B. So does this mean, for example, that an employer considering employees for promotion to managerial level, at which women are currently underrepresented in the organisation, would be able to arrange management training for women only if they were all “as qualified as” any of the men?

The concept of “as qualified as” also raises questions: for example, does “qualified” refer to academic qualifications only or to all the selection criteria, and who decides whether A is as qualified as B?

The Bill would, it seem, need some fairly substantial amendments if it is actually to simplify and clarify the law instead of raising new points for litigation. With the prospect of a general election looming, whether or not Parliament goes to its full term, the problem for the Government is that it may simply run out of time.

Darren Newman, consultant editor for XpertHR and author of the XpertHR initial series of articles on the Equality Bill, tracks the progress of the Bill
Lynne Featherstone MP tracks the Equality Bill through Parliament