RESPONSE TO THE DISCRIMINATION LAW REVIEW
A FRAMEWORK FOR FAIRNESS: PROPOSALS FOR A NEW
EQUALITY BILL FOR GREAT BRITAIN
Contents
1. Summary
2. Why is new equality legislation needed?
3. Basic principles
4. Principles into practice:
A. Aspects of the Discrimination Law Review with which the
Commission broadly concurs
B. Aspects of the Discrimination Law Review which the
Commission believes need to be further reviewed or developed
C. Issues the Commission consider should have been addressed or more adequately addressed in the Green
Paper
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1. Summary
The Commission for Equality and Human Rights (the Commission) welcomes the government’s declared intention to enact a modern legal framework for equality: a new equality act for Great Britain.
The Commission therefore also welcomes the publication of the
Green Paper Framework for Fairness , setting out the conclusions and recommendations of Discrimination Law Review (DLR) and inviting comments from the widest possible range of interested persons and organisations. The Commission regrets, however, that the proposed scope of a new equality act, as reflected in the
Green Paper, falls far short of m inisters’ stated ambitions when the
DLR was established and the expectations they had created for new legislation which is coherent, simple and derived from fundamental principles. In this response we set out a) why we believe new legislation is needed; b) what we believe should be the scope of the legislation; and c) a limited number of issues of principle which we believe need further development or review.
Our views are informed by consultation over a very short period of time with the three former equality commissions – the Commission for Racial Equality (CRE), the Equal Opportunities Commission
(EOC) and the Disability Rights Commission (DRC) – and with organisations concerned with tackling discrimination on grounds of sexual orientation and age, trade unions and business organisations.
As the main statutory body with responsibility for enforcement and monitoring of equality legislation in Great Britain, we expect to work closely with relevant officers and ministers as the detailed plans for a new equality bill are developed. Helping to shape the content of the legislation that will underpin a major part of our work in the foreseeable future is one of the most important tasks we will undertake; we are attempting to do so at this initial consultation stage before we are fully constituted and operational.
We have had the benefit of seeing the responses to the Green
Paper by the former equality commissions. Where these submissions relate to matters that are specific to their particular mandate (that is, matters relating to race, colour, nationality, ethnic
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or national origins for the CRE; disability for the DRC; and gender, marital status, pregnancy and gender-reassignment for the EOC), we broadly endorse their comments and recommendations. Where the proposals in the Green Paper raise wider issues, our response is based on principles we believe should apply across all the protected grounds. We have also benefited from access to the submissions of other stakeholders.
2. Why is new legislation needed?
It could be said that the government is the victim of its own success. Over the past ten years, the government has produced major legislative initiatives to combat discrimination and to promote equality of opportunity, which have been widely welcomed.
Existing legislation – the Race Relations Act 1976 (RRA), the Sex
Discrimination Act 1975 (SDA) and the Disability Discrimination
Act 1995 (DDA) – has been strengthened: its scope extended; new protections added; a shared burden of proof adopted; and new positive equality duties have been imposed on public authorities.
New laws now provide protection against discrimination on grounds of religion or belief, sexual orientation and age. And the new Commission for Equality and Human Rights has been established. So the first reason for new primary legislation is to replace the complex matrix of statutes, regulations and orders that employers, service providers, members of the public and the
Commission must negotiate, interpret and seek to apply, with a single piece of legislation that provides simpler, clearer, consistent anti-discrimination protection.
More fundamentally, new equality legislation is needed to meet the very different conditions and expectations – social, political and legal – that exist today, and which either did not exist or had not been fully appreciated when the major planks of our current equality law were laid out. Some of the major changes include the following: a) Demographic changes: a more diverse population in terms of ethnicity, national origins and faith, and an increased proportion of older people. b) Greater participation by women in the labour market.
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c) Greater appreciation of diversity accompanied by a greater public acceptance of the need to do something to eliminate unfair discrimination. d) Growing evidence of the need to increase the pace of change. e) Greater confidence among many disadvantaged or excluded groups in demanding rights to fair treatment and full participation in civil society. f) Wider appreciation of the role of institutional failure and bias in creating and perpetuating discrimination and inequality. g) Stronger evidence that meaningful and lasting change depends on consistent public policy and strong institutional support, in addition to well-drafted legislation. h) The gradual development of a human rights culture, following the enactment of the Human Rights Act 1998. i) New obligations under EC law to introduce equality legislation with appropriate institutional arrangements, rights to redress, and effective, proportionate and dissuasive sanctions. j) Growing awareness of the shortcomings of the current legal framework. k) Increasing concern about the complexity and inconsistencies of the existing law for those who have to comply with it, those who seek to use it and those who have to monitor and enforce it. l) Examples of policies and legislation under devolved powers that set higher equality standards for Scotland and Wales than those which currently apply across the whole of Great
Britain.
Taken together, these factors lead us to believe that what is needed is more than an overhaul of the existing law; the DLR and the present consultation should lead to a new equality act, which not only meets the new conditions and expectations, but also proclaims that rights to equality and protection against unfair discrimination are an integral part of our unwritten (or, in the future written) constitution. New equality legislation must therefore be based on profound principles which have wide support.
Basic principles
The DLR acknowledges that existing equality legislation has not achieved the change its proponents had hoped for, and that
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inequality, discrimination and disadvantages persist today for groups which for several decades have had rights on paper to equal treatment. Yet in this Green Paper, there is little evidence that the DLR has identified the factors that would ensure that a new equality act could make a significant difference.
We are not suggesting that equality law is the only tool to combat discrimination and promote equality, or that legislation by itself would be able to eradicate the main causes of inequality in British society. Indeed, the Commission was established with explicit powers and duties to use multiple means to change the cultures and practices that perpetuate inequality. We know that comprehensive strategies are needed to tackle the economic, as well as social and political, factors that perpetuate the unacceptable inequalities described in the Equalities Review.
Nevertheless, for most people and institutions, the law is regarded as the main 'driver' for change. This makes it vitally important that we use the opportunity provided by the DLR to get the law right.
A new equality act cannot be merely an exercise to tidy up and reduce inconsistency – though it should certainly achieve that end, and must do so without eroding the gains already made. It should reflect the changes listed above and meet new challenges. It needs to be more intelligible than the existing legislative patchwork, enabling those who seek to use the law to enforce their rights – and those on whom the law imposes obligations – to work without bureaucratic barriers. It must be a more fundamental statement of our commitment to equality in a diverse society; and it should provide us with the tools to tackle the range of issues which are faced by such a society.
While its terms of reference required the DLR to consider ‘the fundamental principles of discrimination legislation and its underlying concepts’, regrettably the Green Paper does not disclose the DLR’s conclusions, nor does it invite wider comment on these fundamental questions. The Commission believes that there is an urgent need for widespread debate among all relevant stakeholders on the essential principles on which the provisions of the new equality act should be based. Such debate must, necessarily, precede any final decisions on the detailed content of the new act. This process should be reflected in the legislation itself, with a first chapter stating the basic principles of equality under the law that should shape the provisions of the act. It should
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be against these basic principles that the provisions of the act are understood, applied and interpreted. They should be an integral aspect of any move towards a larger, written constitution or statement of rights for Great Britain.
The real promotion of equality and the elimination of discrimination require a ‘constitutional promise’, not merely the creation of a detailed set of rules and processes. Without such a constitutional vision, the creation of a single equality act will fail in its ultimate process. It will fail because, like previous legislation, it will be about outputs not outcomes, and because it will remain inaccessible and impossible to understand without lawyers. While there will always need to be exceptions and exemptions, such an important measure needs to be rooted in a set of values.
This constitutional promise needs to be something that we, as society, make to others about how we will treat them and how, in turn, we expected to be treated. However it is also a promise that the government and parliament make on their own behalf to us and, on our behalf, to everyone else. This is too important to leave to the details of an ordinary bill with all the vagaries and possibilities of amendments, counter-amendments and political compromise.
For these reasons, the Equality Bill needs to be predicated on a set of fundamental principles about what kind of society we want and what standards of treatment we can expect. This requires more than just a purpose clause: the principles should be the basis from which the rest of the bill derives its philosophical context and the reasons for its rules and procedures.
We have concerns about the details of the Green Paper and will work with the government, parliamentarians and others to ensure that we get the best possible set of rules to build a more equal and fair future, but we will also do more. We will draft the principles by which those rules should be judged and we will propose a new vision of how parliament can make law which will really make a difference. We hope that our set of principles might provide the first chapter of the Equality Bill and give real substance to that constitutional promise. Alternatively, they might form the basis of an equality guarantee in the proposed bill of rights suggested by the government in the ‘Governance of Britain’ paper.
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Whichever approach is taken, we need a set of principles which:
 create a constitutional promise on equality;
 are drafted to have some constitutional significance and to ensure that other procedures, rules and law are subject to them;
 provide a philosophical basis for judicial adjudication; and
 can be used as a basis from which to derive the rest of the more detailed rules in the new equality act.
Principles into practice
In the proposals for the contents of new equality legislation, the
DLR has considered a number of important discrimination law issues, which are addressed in the Green Paper – some with convincing solutions and many others without.
We divide our comments therefore into three parts:
A. Aspects of the DLR proposals with which the Commission broadly concurs
B. Aspects of the DLR proposals which the Commission opposes or which we consider need to be further reviewed or developed
C. Issues the Commission consider should have been addressed or more adequately addressed in the DLR proposals
A. Aspects of the DLR proposals with which the
Commission broadly concurs
1. The declared intention to create a clearer, more streamlined legal framework, which is simpler and more effective at tackling disadvantage and discrimination on all of the protected grounds; in doing so to ensure that that existing levels of protection against discrimination must not be eroded and that British discrimination law must meet the requirements of EC law.
While this is the declared intention of the DLR, many of its detailed proposals do not meet its intention. By proposing
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the retention of different levels of protection for different grounds and by retaining a large number of specific exceptions, the DLR’s proposals will not achieve a simpler framework. Certain proposals, if enacted in the form set out in the Green Paper for a ‘genuine service requirement ’, are likely to erode existing protection. In a number of instances, the DLR has rejected proposals to bring legislation in line with EC law. We discuss these issues in more detail below.
2. A single public sector equality duty covering all protected grounds: the Commission should retain its statutory enforcement role, without removing the right of the Commission, and others, to challenge non-compliance by judicial review
We fully endorse the proposal for a single equality duty covering all of the protected grounds. We agree that this does not require the same actions to be taken with regard to each ground, but rather actions relevant to eliminating discrimination and promoting equality on each of the grounds. The Commission strongly endorses the aim of having a duty that is focused on results and which avoids unnecessary bureaucracy, but we also recognise that, in order to ensure authorities achieve the desired outcomes, certain processes will need to be carried out. The form of a general and specific duty must be amenable to effective enforcement by the Commission. We need to make sure that, in extending the duty to new grounds, there is no dilution of protection against discrimination or of the obligation to ‘mainstream’ equality, which is explicit in the existing duties.
We include below, under section B, the aspects of the proposals relating to a single equality duty we believe need to be reviewed and further developed, including the form of the single equality duty, to whom it should apply and the content of any specific duties.
We agree that the Commission should retain the statutory enforcement role it currently has for the race, disability and gender equality duties. What our specific enforcement
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powers should be will depend on the final form of the general and any specific equality duties. It should be made clear that our statutory enforcement role would not in any way oust the rights of any affected persons or organisations, or the Commission itself, challenging noncompliance by judicial review.
3. The private sector should not be subjected to an equality duty equivalent to that which we endorse for the public sector. A ‘light touch’ should not, however, mean no touch
The Commission agrees that self-regulation, rather than externally imposed and enforced equality-related obligations, is more appropriate for private sector organisations. We do not agree that self-regulation should continue to be wholly voluntary. This approach, over more than 30 years, has produced some outstanding exemplars of good practice, but a far larger group of private sector employers who either do not see equality as relevant to them or, more worryingly, who deliberately perpetuate discrimination in recruitment, promotion and dismissals.
We set out below under section B our proposals for the private sector.
4. A positive approach to positive action, allowing the broadest possible scope for measures to achieve substantive equality
With regard to the findings of the Equalities Review, the
Commission believes that bringing in new equality legislation without addressing the urgent need to extend the scope of lawful positive action would make the whole exercise of little value. If a single equality law is to meet the needs of Britain today, it must address the incontrovertible evidence of persistent inequalities that blight the lives of major groups within our society and damage society as a whole.
We recognise the need for accelerated action to overcome entrenched inequalities, and the government’s proposals to make it easier and less restrictive for employers, providers of services and public authorities
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generally to tackle the barriers that prevent equality. Any positive action measures must be capable of addressing disadvantages which occur as a result of the intersection of two or more protected grounds – such as disadvantage in the labour market faced by Bangladeshi and Pakistani women.
That the new equality act should contain a first chapter stating clearly the underlying principles and purposes of the act is particularly important in relation to positive action. The aim of positive action must be to speed up action towards achieving those purposes. The positive action provisions in the new equality act should therefore be as broadly drawn as possible – using the objectives, for example, to prevent or compensate for disadvantage or to meet special needs without introducing any other statutory restrictions. Contrary to the DLR, we do not agree that positive action measures must meet a
‘necessary’ test, since undoubtedly, in many instances, there will be a wide range of measures that may be appropriate to meet an employer’s or service provider’s objectives, while none in particular could be deemed to be
‘necessary’. That positive action measures must be intended to meet objectives defined in the act would also impose time limits and a need for regular review, since such measures would cease to be lawful once their objectives had been achieved.
The stated purposes of the act would also provide the framework for employers or service providers to use when drafting, implementing, monitoring and evaluating positive action measures.
We would like to have further discussions about the ways in which positive action measures could be used by public authorities to meet their general duties relating to good relations between groups and/or full participation in public life.
Possibly the most significant problem in relation to existing positive action measures is that they are significantly under-used. Employers and service providers are risk-averse: they will not adopt measures which they
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fear may be legally challenged. They are also unclear about what is permitted under existing legislation. The
CBI, in its memorandum to the House of Commons
Communities and Local Government Committee, comments: ‘Employers who might want to take positive action to increase the diversity of their workforce are often confused about how to go about doing this without falling foul of the law.
’ This view was echoed to us many times at a recent meeting of business representatives. Current permitted positive action measures in employment are based on out-of date explanations for underrepresentation. They are also unduly restrictive in how they can be applied and in the forms of positive action they permit.
There appears to be even greater reluctance to take lawful positive action outside employment, including among public authorities currently subject to race, disability and gender equality duties.
Therefore, it is unlikely to be enough merely to permit positive action. There will be a need to encourage such measures and for us to produce a statutory code of practice to provide good guidance, with examples, on the scope of action that can be taken under the new equality act and EC law. Such guidance will be essential to overcome the uncertainty, doubts, reluctance and resistance that currently exist about positive action under existing legislation. In drafting a code for this purpose, we would seek to avoid being unduly prescriptive in order to achieve the right balance between clarity and flexibility, so that appropriate positive action measures can be adopted to suit the circumstances of the particular employer, public authority or other service provider.
We expect to take on a major role working with employers, service providers and public authorities generally to help them to appreciate the full scope of measures available to them, and referring them to the code of practice (which would, of course, be taken into account by a court or tribunal if their positive action measures were to be challenged).
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5. Specific proposals to simplify and/or to harmonise protections and definitions
We believe that one of the general principles which should underpin a new equality act is that there should be no hierarchy of equality, unless differential levels of protection can be objectively justified. The Commission therefore fully endorses proposals in the Green Paper that would provide the same protection for all the protected grounds. Regrettably, there are many instances in which what is proposed will establish or maintain differential levels of protection for different grounds.
We support proposals to simplify definitions, which generally will make the law more accessible to those who believe their rights in relation to equal treatment have been breached and to those with responsibilities to avoid discrimination, harassment and victimisation.
Our concern is that, in a number of instances, the proposed harmonised and simplified definitions in the
Green Paper conflict with the DLR’s aim to ensure that the new equality act meets the requirements of European law and does not erode existing levels of protection.
B. Aspects of the Discrimination Law Review proposals which the Commission believes need to be further reviewed or developed
1. The form, content and application of a single equality duty
We believe that an urgent priority in developing new equality legislation is further discussion and consultation on the form, content and application of a single equality duty.
There is wide agreement that to make eliminating discrimination and harassment and promoting equality a legal duty of public authorities offers real potential for sustainable change. The Commission would endorse, in slightly bolder and more optimistic terms, the aims of a
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positive equality duty set out in the Green Paper
(paragraphs 5.2 and 6.3):

to bring about a culture change so that promoting equality becomes part and parcel of public authori ties’ core business; and

to ensure that public authorities embed equality considerations throughout their activities.
The race, disability and gender equality duties have created a momentum towards such change, which must not be lost. Therefore, as stated above, any new formulation in a single equality act must not erode protections within the existing duties, nor dilute the obligations to which authorities are currently subject.
From our perspective, as the body with statutory powers to ensure compliance, it is essential that an equality duty is clear, intelligible and enforceable. We fully agree that it must focus on outcomes, but it will also need processes which make it possible to achieve the desired outcomes.
The single equality duty must be sufficiently robust to bring about long-term institutional change, affecting the mentality and culture of public authorities, making equality truly part of their core business, and affecting everything they do. As a result of complying with the equality duty, a public authority should be providing more appropriate, more effective services to all of its service users. A duty which is clear and intelligible, and which produces better service delivery overall, should be regarded as an aide to providing good public services, not an unnecessary burden.
In our view, bringing together the three current equality duties into a single equality duty, and extending it to sexual orientation, religion or belief and age, does not require the wholesale re-writing of the content and structure of the existing equality duties, as is proposed in the Green Paper. Instead, a single duty should incorporate the elements of the existing duties, including the wider duties that currently apply in Scotland under the legislation by the Scottish Parliament, which could be of
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benefit to all areas of equality under the act. This should help to ensure that any new formulation would not dilute the existing duties.
We do not agree with the proposal to leave it to public authorities to adopt their own ‘equality principles’ and to decide for themselves how to meet the equality duty in respect of their various functions. This has the potential to shunt the concept of equality from the core business of public authorities to the margins. While some authorities may adopt truly challenging priorities, the Commission is concerned that, based on current performance, some authorities will prioritise only the most obvious functions and will fail to explore how equality on one or more of the protected grounds may be relevant to the full range of its functions. One of the lessons of the Stephen Lawrence inquiry was that it was often in the less obvious, more routine actions of the police and other agencies that institutional racism continued unchecked. Additionally, there is a real risk that less popular issues, such as the discrimination and significant disadvantage faced by
Gypsies and Travellers, trans-gendered people or people with mental health disabilities, may never be a priority for authorities which could make a real difference to people’s lives.
For the above reasons, we do not agree that the duty which a new equality act would impose on public authorities should be described as a duty ‘to use proportionate means to achie ve equality priorities’. This form of a statutory duty would fail our requirements for being clear, intelligible and enforceable.
We fully endorse that the way in which an authority meets the duty – in respect of all its functions – should be based on relevance and proportionality; we would expect an authority to prioritise those functions where equality on all or some of the protected grounds is most relevant and to take steps that are proportionate to the nature of the functions and the degree of relevance of equality issues, as well as to their overall resources and their other legal and policy obligations. This is the approach that the three
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commissions’ codes of practice prescribe in respect of the existing duties.
We further recommend that further discussion is needed about whether any specific duties are necessary to make sure that the general equality duty is effective, and if so what such specific duties should require. It is perhaps in relation to any processes prescribed in secondary legislation that the need to focus on outcomes is particularly important. It will not be possible, in our view, for public authorities to make real progress towards equality for employees or for their services or other functions without reliable, objective data on their current performance. Such data will also be necessary as part of any assessment of the likely effects of new policies.
We note the recent review of section 75 of the Northern
Ireland Act 1998 by the Equality Commission for Northern
Ireland (ECNI).
1 Under section 75, the duty on public authorities to promote equality of opportunity on nine grounds (religious belief, political opinion, racial group, marital status sexual orientation, gender, disability and having dependants) is rigidly process-led. The Act prescribes the contents of equality schemes that must be approved by the ECNI and requires public authorities, in deciding whether to adopt a policy, to consider equality impact assessments and consultations on that policy. In undertaking this review, the ECNI wanted to learn whether the law needed to be changed to make it more effective.
They comment 2 that ‘neither the findings from the research nor the contributions from individuals and organisations advocated such an approach ’. The main recommendation from the review is for the ECNI and public authorities to have a greater focus on measurable outcomes in relation to promoting equality of opportunity and good relations under an unchanged section 75.
A further question raised in the Green Paper is how to identify those public authorities subject to a single equality duty. We appreciate arguments for different approaches:
1 Section 75 – Keeping it Effective: Reviewing the Effectiveness of Section 75 of the Northern Ireland
Act 1998, Equality Commission for Northern Ireland, May 2007.
2 Ibid, page 80.
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a closed list of designated public authorities, as in the
RRA; all public authorities in respect of their public functions, following the HRA model as in the DDA and
SDA; or a list or the HRA model, supplemented by a generic description such as bodies subject to investigation by the Ombudsman or other inspectorates, as in the
Northern Ireland Act. Therefore we urge that this issue should form part of early discussions and further consultations.
2. National priority equality objectives and/or national strategic equality outcomes for public sector equality duties
We believe that there is a need to review and discuss further the proposal that there should be national priority equality objectives, which would form part of every public authority’s performance of their equality duties. We also recommend further consideration of the proposal to adopt national strategic equality outcomes against which to measure the equality performance of public authorities.
We recognise the value that national objectives and strategic outcomes could have. They could guard against a ‘post-code lottery’ for equality protection and could help authorities to measure their own progress. They would provide national standards that could be used by the public service inspectorates to assess compliance.
We believe that the equality act already gives the
Commission powers to set national equality outcomes and indicators to measure progress: where we set outcomes, we have a duty to monitor progress.
Therefore, within the wider debate regarding the form and content of a single equality duty and any specific duties, consideration should be given to whether some form of national standards should be included, and if so whether there should be a single standard for all public authorities or whether standards should be function-specific, referring for example to health, housing, education, criminal justice or social benefit functions.
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3. The public service inspectorates should have a statutory duty to audit or i nspect public authorities’ compliance with their general and specific equality duties
Underpinning the existing equality duties has been the expectation that the key players in enforcing these duties would be the various public service inspectorates, including the National Audit Office, the Audit Commission, the Wales Audit Office, Audit Scotland, the Inspectorates of Constabulary, Prisons, Probation, OFSTED and relevant inspectorates within the fields of social services and residential care. For the organisations which they audit or inspect, the inspectorates carry far greater clout than the equality commissions: they already have welltested methodologies for inspections and audits, and they have the relevant knowledge and experience to allow them to identify the effects of any equality duty. It had been expected that this would occur automatically, merely adding one further aspect of legal compliance to the long list the inspectorates already monitor.
It is our understanding that some inspectorates have embraced their equality obligations under the RRA, while others have not done so, or have done so in limited ways.
We accept that it should not be necessary to introduce further legislation to make sure that inspectorates check for compliance with statutory equality duties in the same way as for other statutory duties. Nevertheless, despite the fact that all the public service inspectorates are themselves subject to the equality duties, on the available evidence, it would seem that some mandatory requirement may now be necessary. We expect the public service inspectorates to take a front-line role in securing compliance with equality duties. For many authorities, inspectorate judgments are likely to be more acceptable than ours because of these agencies’ established expertise in public authorities’ areas of work.
The Commission therefore recommends that a new equality act should include a separate statutory
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requirement for public service inspectorates to audit or inspect public authorities’ compliance with their equality duties. Where there are existing statutes which set out powers and duties of the inspectorates, the new equality act should merely amend those statutes.
4. The new equality act should require public authorities to incorporate equality considerations into all aspects of their procurement processes
As the Green Paper confirms, there is now wide agreement that public procurement can be an extremely effective lever for change within the private sector. This is the real business case for equality, as it affects the core concern of enterprises of all sizes: namely, the opportunity for business. As the CBI stated in its evidence to the
Equalities Review:
Employers believe public procurement is a highly effective lever for increasing diversity and share the position of the National Employment Panel that there must be more systematic use of public purchasing power. This lever should be used more effectively by the public sector to further spread good practice in the private sector.
Using the purchasing power of public authorities to make sure that good equality practice continues further down the supply chain is consistent with the principles of good regulation.
3
Each of the existing commissions has issued detailed guidance for public authorities on incorporating equality considerations into their procurement processes to comply with their race, disability and gender equality duties, yet most authorities fail to do so.
3 In 1999, the Better Regulation Taskforce, while rejecting any statutory obligation on private sector organisations to monitor their workforces, rec ommended that the government should use its ‘purchasing and funding muscle’ to promote equality among contractors and suppliers, with a review of UK or EC procurement policies if necessary.
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The argument that, in principle, procurement should be used as a lever for change has been mostly won; 45 the challenge is to make it happen.
The Commission disagrees with the DLR’s conclusion that public authorities ’ reluctance can be overcome by issuing further guidance. We believe that legislation is needed.
This was the conclusion of the Equalities Review.
We accept the DLR’s arguments against making equality in procurement part of the general or specific equality duties. Instead, we recommend that the new equality act includes a separate provision requiring designated public authorities to incorporate equality considerations into all aspects of their procurement of works, goods and services. Such requirement would be complementary to the single equality duty, but could not be avoided by authorities that would prefer other priorities. It would apply to all authorities listed in regulations. It would provide a statutory equality context for procurement that would, of course, also need to be consistent with EU and UK procurement legislation and the fiduciary duties of public authorities.
Regulations, a statutory code of practice and further guidance could help and reassure public authorities.
Making equality in procurement an explicit statutory obligation would send a clear and unequivocal message to the Office of Government Commerce to be incorporated into their policies and guidelines; to public authorities as purchasers; and to prospective private sector suppliers. It would avoid unresolved differences about the legal status of procurement within the existing equality duties, and should also make compliance a matter that the public service inspectorates would automatically examine.
We agree that there should be comprehensive guidance produced jointly by us and relevant government departments. Such guidance will be essential to ensure
4 The Green Paper also refers to endorsement of procurement as a means of promoting equality in HM
Treasury’s budget report 2005 and in the 2006 report of the Women and Work Commission. In 2003, it had the prime m inister’s endorsement as one recommendation in the 2003 Cabinet Office report on ethnic minorities in the labour market.
5 Possibly leaving only the Office of Government Commerce to be fully persuaded.
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that public authority purchasers and private sector suppliers or potential suppliers understand their statutory obligations in relation to procurement.
We anticipate that one of the main ways in which this equality in procurement duty will be enforced is by contractors whose tenders that do not meet equality requirements are rejected.
5. Measures to promote equality within the private sector
We welcome the fact that many businesses – predominantly large ones – have embedded procedures in place, not only to avoid unlawful discrimination, but to promote equality of opportunity within their workforces.
Some private sector employers have been outstanding exemplars, embracing the business case for diversity and building equality and diversity objectives and practices into their training and management systems; regularly reviewing their equality performance; and taking positive steps to recruit and retain a diverse workforce. They have found that this can improve their overall efficiency and public profile, and can also expand their customer base.
Regrettably, this approach has not been adopted by the majority of private sector employers, and the need to embed good practice among recalcitrant or reluctant private sector employers is not a minor issue.
Some 80 per cent of the British workforce is employed by the private sector, and with the continuing trend of introducing the private market into the provision of public services, this percentage is only likely to increase.
The Equalities Review brought together some of the research on inequalities within the labour market during
2005, and the extent to which discrimination was a contributing factor to such inequality, for people aged between 16 and 64: o Full-time female workers earn, on average, 17 per cent less per hour than men working full-time. For women
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who work part-time, the gap in pay relative to full-time men is 38 per cent per hour.
6 o The average weekly net earnings of Bangladeshi men are about half those of white men.
7 o The employment rate for men with disabilities is 52 per cent, compared with 85 per cent for men who do not have a disability. The employment rate for women who have a disability is 49 per cent, compared with 75 per cent for women without a disability.
8 o The employment rate for Muslim men is 58 per cent, and the employment rate for Muslim women is 24 per cent.
9
Other research has highlighted employment discrimination on other grounds, for example:
 Fortynine per cent of employers with five or more employees had a maximum recruitment age, and 8 per cent acknowledged that being under 22 or over 60 counted against job applicants.
10
 Thirteen percent of the UK workforce – almost four million people – have witnessed homophobic bullying at work. Over 1.2 million people have witnessed the physical bullying of lesbian and gay workers.
11
The only specific proposals in the Green Paper for the private sector are a ‘light touch “equality check tool”’ and a voluntary equality standard, which could be externally accredited, or a non-accredited good practice and compliance tool. We agree that such measures could be useful, although these too could involve a disproportionate burden on smaller employers. With an historical perspective, however, we are not persuaded that they will make a significant difference.
6 ONS (2005) Annual Survey of Hours and Earnings, revised December 2005.
7 Equalities Review, Interim Report, page 25.
8 ONS (2005) Labour Force Survey Spring 2005 dataset.
9 Ibid.
10 Survey of employers’ policies, practices and preferences relating to age, Hilary Metcalf, DWP
Research Report No 325, DTI Employment Relations Research Series No 49, 2006, page 92.
11 YouGov poll, commissioned by Stonewall, October 2006.
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Discrimination in employment was first outlawed in the
Race Relations Act 1968; the Equal Pay Act was fully in force by 1975. The CRE, EOC and DRC have published codes of practice for employment and supplementary nonstatutory guidance; Acas offers an advisory service to employers; and toolkits, checklists and standards have been produced by organisations such as Opportunity
Now, Race for Opportunity, Stonewall and the Employers
Forum on Disability, to help employers who want to adopt good equality practices.

In a survey published in March 2007, 12 the
Chartered Institute of Personnel and Development evaluated the responses of 285 employers on a scale they had devised to measure ‘sophistication in diversity man agement’. They found that only seven per cent of private sector organisations achieved the highest levels of sophistication, compared with 34 per cent of public sector organisations.
Given that most jobs are in the private sector and, as the data confirm, many ethnic minorities, women (especially women with children), disabled people, young people and older people continue to face inequalities and discrimination in employment, while the gender pay gap persists, this must, to a significant degree, be attributable to the failure by private sector employers to operate fair, non-discriminatory employment practices.
There are still far too many private sector employers who are prepared to risk being challenged in an employment tribunal rather than taking steps to avoid unlawful discrimination or harassment. In a highly competitive business environment, businesses may fear that any costs invested in equality of opportunity could put them at a disadvantage, either in terms of profits or being underbid for contracts. Of course, this is where public procurement can make a difference, but only for those businesses likely, or hoping, to have public contracts.
12 Diversity in Business
– A Focus for Progress
, survey report March 2007, Chartered Institute of
Personnel and Development (pages 5 -7).
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Therefore, in relation to those businesses unaffected by requirements for public contracts, the Commission considers that more than ‘light touch’ voluntary measures are needed. In our view, without some legal obligation that applies to all employers (or, as discussed below, all employers of a certain size or turnover), there will not be a level playing field and the business case for business and profits will continue to outweigh any business case for equality.
The Commission regards equality and non-discrimination as fundamental social rights; there cannot be a trade-off between equality and the needs of business. We understand the government’s ongoing commitment to deregulation wherever possible. We also understand the views expressed by business organisations that, provided private employers do not break the law, any regulation of their employment practices must be self-managed. Our concern is that to rely solely on voluntary self-regulation will not lead to a change of culture and practice; it will merely maintain the status quo, allowing the inequalities which affect large sections of British society to continue.
Therefore we recommend the introduction of limited compulsory obligations, which are suitable to be ‘policed’ by businesses themselves. Any such option must however be accompanied by a greater degree of transparency.
The Commission fully agrees that the focus must be on achieving desired outcomes, rather than applying processes. This should be the case for private sector employers as well as for public authorities. It is also important to consider the principles of good regulation and the need to avoid unnecessary bureaucratic burdens on businesses. If the desired outcome is greater equality of opportunity in employment, the evidence of past inertia has led us to conclude that, other than a relatively few exceptional and positive examples of good practice, we will not achieve this in the private sector by relying on voluntary self-regulation alone. We are therefore now recommending giving consideration to using the new
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equality act to move employers towards effective selfregulation.

The Chartered Institute of Personnel and Development survey of employers referred to above found ‘that the law has the top influence on organisations in progressing diversity, with 32% of respondents identifying it as the most important of the top five drivers ’.
We propose what could be described as ‘light touch’ regulation in the form of business self portraits and selfimprovement plans . As stated above, we agree that private sector employers should not be expected to comply with enforceable positive duties equivalent to those for the public sector. The scheme we describe relies wholly on each employer determining for themselves what action, if any, they need to take.

As an essential first step, a self portrait would require an employer to look at their employment practices objectively, monitoring the composition of the workforce, pay and benefits, and processes such as recruitment and dismissal. How this is done should be determined by each employer in consultation with their trade unions and employees. As part of this, employers should be expected to identify any gender pay gap within their workforce.

A business self improvement plan would require an employer to use what they have learned from the self portrait to plan with employees and unions what steps it proposes to take to improve representation and to comply with equality legislation in relation to all the protected groups. The data from the self portrait would be a solid basis for positive action measures. If the employer had identified a gender pay gap, which appeared to be as a result of discrimination, then the plan should include the carrying out of an equal pay audit and taking action to implement equal pay over a reasonable time period (agreeing with unions and employees a proportionate protection against equal pay claims during that period).
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
The self portrait should be updated annually. The self improvement plan should be reviewed and revised, if necessary, every three years; in the intervening years, some minor changes to the plan might become appropriate in the light of up-to-date monitoring data.

The self improvement plan and data or summary of data from the self portrait should be published or made easily accessible to the whole of the workforce, and, if the business is a company, to its members or shareholders. It could be used to promote the corporate social responsibility of the business or to recruit new staff and compete for public contracts.
Additionally, although we do not regard our proposals as burdensome, we recommend that implementation could be phased over a number of years on the basis of the size of the employer, beginning with employers having more than 250 employees. Phasing could also apply to the steps an employer would be expected to take.
Regulations made under the new equality act could provide details for the phasing in of these requirements, as well as specifying what information from self portrait s and self improvement plans should be given to employees.
The Commission agrees with the views expressed to us by a range of employers’ organisations that one of our important roles is to provide clear, accurate advice to employers. If this scheme of self-regulation is incorporated into the new equality act, we would suggest that, even for the first tranche of large employers, the first stage of the duty should not come into force until some time after we have published relevant guidance, including on positive action, to clarify what employers are expected to do, including examples of what they could do, and to reassure them that these obligations will not be unduly burdensome. For most employers, the relevant data are already available. It is often suggested that smaller employers are less likely already to have data about their workforce: we feel that the smaller the employer, the
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easier it will be to discuss with employees and agree on suitable methods to collect such data. It is our view that, over a relatively short period of time, the limited processes that we propose as mandatory will become normal, routine processes for all employers, leading to fairer employment practices without oppressive burden.
We are not proposing that employers of any size should be required to report to us or to any other external organisation on their compliance with these self-regulating duties. This would not, however, be an invitation to do nothing, since the fact that an employer failed to meet these duties and/or failed to implement its self improvement plan could be exposed in a number of ways.
We recommend that the new equality act should make clear that, in parallel with the status of Commission codes of practice, non-compliance with these requirements would not in itself make an employer liable to legal proceedings. However, compliance or non-compliance as well as the data collected in self portrait s and the contents of self improvement plans would be admissible as evidence in any proceedings, and should be taken into account by a court or tribunal in any case in which they appear to the court or tribunal to be relevant.
The first challenge to a non-compliant employer would be likely to come from the employees and the trade unions within a workplace, who would be entitled to call their employer to account if they failed to carry out any part of their equality obligations.
Failure to prepare and publish a self portrait and self improvement plan will be relevant to the Commission in our statutory enforcement capacity. If we were considering whether to conduct an inquiry (under section
16 of the Equality Act) or an investigation (under section
20) into an employer or group or sector of employers, we would ask for data collected for self portraits and self improvement plans . Once an inquiry or investigation was underway, we would have powers (para 9, schedule 2 of the Equality Act) to require that information to be produced. Non-compliance and/or a lack of evidence that the self improvement plan was being implemented would
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be a factor we would take into account in deciding how to use our enforcement powers most effectively. This information would also be highly relevant if we were considering seeking an undertaking from an employer
(under section 23).
The Commission would like to see consideration given to requiring the data employers collect for their self portraits included in company reports. The Companies Act 2006
(section 417) requires quoted companies to include in their di rector’s annual business report information about the company’s employees, including information about any company policies that relate to employees and their effectiveness. This Act (section 468) also gives the secretary of state power to extend the range of companies required to make such reports and to require additional information to be reported. We see the advantage, in terms of compliance, of incorporating into the Companies
Act equality regulations that apply to companies.
6. Harmonisation, simplification and modernisation of the law should achieve consistency across all grounds. There should be no hierarchy of equality and the new equality act should meet the requirements of European law
As we have indicated throughout this response, we want to see a new equality act that is simple, clear and consistent in its application to all of the protected grounds, unless there is objective justification for distinguishing particular grounds. We consider that common definitions should be used wherever possible and that these should be as close as possible, if not identical, to the definitions set out in the relevant EC equality directives.
13 Where the
DLR proposes differential levels of protection, this is likely to make the law more complex and confusing.
13 Council Directive 2000/43/EC, implementing the principle of equal treatment between people, irrespective of racial or ethnic origin; Council Directive 2000/78/EC, establishing a general framework for equal treatment in employment and occupation; Directive 2002/73/Ec of the European Parliament and of the Council amending Council Directive 76/207/EEC, on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions; and Council Directive 2004/113/EC, implementing the principle of equal treatment between men and women in the access to, and supply of, goods and services.
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Exceptions
One of the reasons for the complexity of current equality legislation is that within each, there are certain exceptions permitting discrimination in particular circumstances or by specified bodies. At Annex A, the Green Paper contains
51 categories of exceptions that the DLR recommends should be retained, and a much shorter list of nine categories of exceptions the DLR considers should be removed (of which five are to regularise the RRA in relation to exceptions already partially removed). Within these 51 categories, some exceptions apply to only one ground, some apply to two or three grounds, and some apply to all six protected grounds. Other exceptions, such as those that relate to enforcement, could be added.
There is no discussion in the Green Paper as to how the
DLR reached a conclusion about retaining or removing each exception as it applies to each ground. If a primary purpose of equality legislation is to prohibit unfair discrimination, then exceptions should be as few as possible and no wider than absolutely necessary. The
Commission strongly recommends that, before including in a new equality act any of the existing exceptions, each should be tested against the following objective standard derived from the EC directives: does it have a legitimate aim and is it an appropriate and necessary means of achieving that aim? Where there is evidence that an exception goes beyond its intended aim or beyond exceptions permitted under EC law, then it should either not be retained, 14 or should be redrafted at the very least.
If all of the exceptions are retained in a long list, the new equality act will be far from simple; for example, the prohibition of direct discrimination on any protected ground (or any combination of grounds) would be qualified by a list of exceptions permitting discrimination on those grounds in particular circumstances.
The Green Paper seeks views on a generic genuine service requirement, which, if it replaced all or most of the
14 See, for example, Response by Stonewall, Discrimination Law Review, September 2007, para 17.
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specific exceptions, would go some way to simplifying the legislation. The form of ‘genuine service requirement’ proposed in the Green Paper would not be acceptable, however; it is potentially regressive, as it could open the door to justification of direct discrimination on all grounds, and could put the UK in breach of the EC Race Directive.
The Commission can see a real benefit in a generic test for exceptions, but only if such a test required any exception to be justified as a form of positive action consistent with the clearly stated purposes of the act as a whole.
Compliance with EC equality directives
While the new equality act will set the standard for equality rights in Great Britain, it must not set standards below those minimum standards prescribed in the EC equality directives and relevant decisions of the European
Court of Justice (ECJ). To achieve this in new legislation may involve some re-drafting of provisions in existing legislation as part of the harmonisation/simplification process. We submit that the costs of minor changes when drafting a new law are considerably less that the costs to the government of trying to defend non-compliant provisions in our law to the European Commission or the
ECJ or before UK courts. In harmonising the definition of indirect discrimination, as is proposed, the new equality act should adopt the full definition under EC equality directives. This would bring the added benefits of enabling indirect discrimination to be challenged prospectively (that is, before a provision, criterion or practice, which would put members of a protected group at a disadvantage, had been applied), as well as making the justification test a more rigorous one. Harmonisation would also mean that indirect discrimination on grounds of disability would be prohibited, which we believe is required for compliance with the EC Employment Framework Directive.
Discrimination based on perception or association
One example of the need for simplification and the removal of a hierarchy of protection (as well as compliance with European law) is in relation to protection, or lack of protection, against discrimination based on perception and association. If the DLR’s proposals were
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adopted, then the new equality act would offer protection from discrimination based on association or perception relating to race, religion or belief and sexual orientation, but not for disability. When it comes to age, protection would cover perception but not association, and for gender reassignment protection would cover association but not perception.
This wholly unacceptable situation follows from inadequate transposition of the EC equality directives as they apply to disability, age and gender-reassignment.
The Joint Committee on the Draft Disability Discrimination
Bill recommended that ‘the DDA should be amended to prohibit discrimination and harassment against people who are associated with a disabled person or are perceived to be disabled.
’ 15
This issue may soon be determined by the ECJ, in the case of Coleman v Attridge Law, concerning discrimination against a person because of her association with a disabled child. The ECJ is asked to consider whether, in order to comply with the EC
Employment Framework Directive, such discrimination should be prohibited under the DDA.
Harassment
Another area in which the Commission urges consistency and the removal of different levels of protection is in relation to protection against harassment. We agree with the unambiguous statement in the Green Paper
(paragraph 14.2) that ‘part of the basic decent values of our society should be to protect people from this type of harm ’. The Commission therefore submits, as a matter of principle, that the new equality act should contain consistent express statutory protection against harassment on all grounds and in relation to all activities within the scope of the act. We do not agree that there should be any statutory exceptions for particular grounds or in particular circumstances. The Commission of course, has human rights responsibilities as well as responsibilities for equality, and we accept that particular
15 Report of the House of Commons House of Lords Joint Committee on the Draft Disability
Discrimination Bill, May 2004, para 109 page 38.
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issues may arise in relation to the prohibition of harassment on grounds of religion or belief. The
Employment Equality (Religion or Belief) Regulations
2003 already include an express prohibition of harassment that applies in employment and vocational training. To remove this protection would conflict with the principle of non-regression. Thus the outstanding issue on which the DLR has sought views relates to harassment on grounds of religion or belief in the provision of goods, facilities or services, education, housing and the exercise of public functions, where currently there is no express prohibition.
The Commission considers that an express prohibition of harassment on grounds of religion or belief would not result in a breach of rights under the European
Convention of Human Rights (ECHR), as courts and tribunals are required under the Human Rights Act 1998 to take articles 9 and 10 of the ECHR into account in any claim of unlawful harassment, particularly when considering whether it is reasonable to regard the conduct in question as having the effect of violating the person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Where the conduct is intended to violate a person’s dignity or create such an environment, it would fall outside the protection of the ECHR.
7. Extension of protection against discrimination on grounds of age
The Commission recommends that the new equality act should provide protection against age discrimination and age-related harassment in relation to provision of and access to goods, facilities and services, disposal and management of premises, education and all other functions of public authorities. This would fill the major gap in the existing matrix of anti-discrimination legislation, as the other grounds are already protected. This extension of protection against discrimination and harassment should apply to people of all ages, and should
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not be limited to those over 18, as proposed in the Green
Paper.
The Commission recognises the wide range of positive benefits provided by both the public and private sectors for children and young people and for older people, as well as certain statutory age requirements or age limits.
We do not consider that this is a reason not to legislate.
Rather, it is necessary to ensure that the new equality act, in prohibiting discrimination that adversely affects people on the basis of their age, takes into account justified requirements or restrictions based on age and does not deter organisations from providing positive age-related benefits.
There is considerable evidence of less favourable treatment of children and young people and of older people on grounds of age.
16
In the provision of goods, facilities and services, education, management and disposal of premises and other functions of public authorities, there are many areas in which age is used as a defining criterion; it occurs both in regulating or restricting access as well as in providing positive benefits. The process of enacting new age discrimination legislation offers an opportunity to review current practice – is age a suitable proxy, for example? – and the day-to-day experiences of people of different ages.
Thus we agree that the new equality act should permit direct age discrimination in the provision of goods, facilities and services, management and disposal of premises, education and other public functions – where this can be objectively justified. The aim would be to provide real protection against discrimination which adversely affects people based on their age, while enabling and encouraging positive age-related benefits.
16 See, for example: Equality for Children and Young People Too ,
Children’s Rights Alliance for
England, August 2007, and publications by Age Concern England, including The Age Agenda 2007,
Public Policy and Older People , and by Help the Aged, including the policy s tatement ‘Age
Discrimination in Goods, Facilities and Services’.
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In the areas to be covered, there are numerous instances of age criteria imposed by statute which have universal application: for example, compulsory school age; age of entitlement to state pension or pension credit; voting age; ages at which alcohol and cigarettes may be consumed or purchased; minimum age to enter into certain types of credit arrangements. Where the application of these age criteria meets the objective justification test, then it may be appropriate for these to be set out in the act as permanent exceptions.
Turning to the other end of the spectrum, we believe it is essential not to discourage voluntary decisions by private and public sector providers of goods, facilities or services to provide age-related benefits, in the form of exemption from payment, concessionary rates, reserved access and so on. Many of these can be justified against an objective justification test; others may come within the scope of positive action to prevent disadvantage or to meet special needs based on age. We are aware that many private sector organisations, which currently provide positive benefits for older people on a wholly voluntary, discretionary basis, are now very worried that new age discrimination legislation may make their schemes unlawful; a first reaction could, understandably, be to stop providing positive benefits rather than to have to justify them before the county or sheriff court. This cannot be the aim of the DLR and is certainly not a consequence of new legislation that we would wish to see. Therefore, at every stage, it will be essential to give a clear indication of what will be unlawful and what will be permitted.
We agree that a closed list of exceptions would be impractical, since new situations for which exceptions are needed will inevitably arise; age-related activities that are not set out as specific exceptions would be lawful if they meet the statutory test for justification.
The Green Paper discusses extending the public sector equality duty to all six protected grounds, including age. In our view, to extend a statutory duty to promote age equality without extending protection against age discrimination to all of the functions of public authorities
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would create a hierarchy and inconsistency within the public sector duty that could not be justified.
C. Issues that the Commission considers should have been addressed or more adequately addressed in the
Discrimination Law Review proposals
1. Effective data collection
In various sections above, we have indicated that before an organisation in either the public or private sector can take effective action to eliminate discrimination and to work towards substantive equality, it must have good, objective and relevant data – whether about the composition of a workforce, access to and take up of services, people within the criminal justice system as victims or as suspects, academic achievement and exclusions and so on. Without such data, desired outcomes cannot be specified, action cannot be properly targeted and progress cannot be measured.
Collecting relevant data, which may be in different forms depending on the group involved and the nature of the activity, should not be regarded as an ‘unnecessary bureaucratic burden ’. Good systems for collecting data should make the collection less bureaucratic and burdensome, and, as we have said, collecting relevant data is in any case a necessity. Once collected, data should be available to anyone who is interested in seeing it, in accordance with the better regulation principle of transparency.
Therefore we recommend that, to avoid doubt and allay any reluctance, the new equality act should refer to the collection and publication of equality data, wherever this is relevant.
2. Protection against discrimination on multiple or intersectional grounds
We believe that a new equality act should include protection against discrimination and harassment on
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multiple or intersectional grounds, reflecting the reality of many people’s experience.
In the White Paper which preceded the Equality Act 2006,
Fairness for All: A new Commission for Equality and
Human Rights , one of the main arguments for a single equality body was that: ‘In its policies and approach, a single organisation will be better equipped to address the reality of the many dimensions of an individual’s identity, and therefore tackle discrimination on multiple grounds ’
(paragraph 1.16).
The House of Commons Community and Local
Government Committee, in its report on Equality (July
2007) states (paragraph 34):
A Single Equality Act provides the opportunity to protect against discrimination on multiple grounds in a more coherent manner. This is, indeed, one of the principles behind the formation of the CEHR.
It should not be surprising, therefore, that we are especially concerned that the DLR has omitted protection against discrimination and harassment on multiple or intersecting grounds in its proposals for a new equality act.
Example: multiple or intersectional discrimination would occur where an employer refuses to employ an older woman, and already employs a number of women and a number of older men. The discrimination cannot be said to be on grounds of age or on grounds of sex, but on the intersection of sex and age.
It is now well known and well documented that individuals experience discrimination and harassment because of more than one dimension of their identity.
17
17 See for example, the Equalities Review (page 63), which showed that employment penalties suffered by Pakistani and Bangladeshi women were far greater than those suffered by either Pakistani or
Bangladeshi men or all women; the EOC report, Moving on up: the way forward , March 2007, which demonstrates the increased disadvantage suffered by ethnic minority women; the National Aids Trust report in 2004, Outsider Status: Stigma and discrimination experienced by Gay men and African people
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This is an issue for the DLR because existing equality legislation does not accommodate complaints of discrimination on intersectional grounds ( Bahl v Law
Society and others [2004] EWCA Civ 1070), but only on each of the grounds separately proven.
We therefore recommend that the definitions of direct and indirect discrimination and harassment in a new equality act should easily apply to conduct based on intersectional grounds: the act’s positive action provisions should recognise that disadvantage may be related to the intersection of protected grounds. We do not see this as a major legislative hurdle; in practice, it should simplify the law, rather than make it more complex. Further, we consider that employers’ worries about additional burden are ill-founded. If, for example, the new equality act enables a black woman to take a case to an employment tribunal on intersectional race and sex grounds, her employer would need to respond only to one complaint, while under the existing law she would need to complain under the RRA and the SDA and her employer would need to respond to two separate complaints.
An additional gain from extending the public sector equality duties to cover all the protected grounds will be the inclusion of multiple or intersectional equality issues.
The Commission recommends that a single equality duty should be explicitly defined as applying to multiple or intersectional grounds, and in compliance public authorities should be expected to identify and take appropriate action in relation to multiple or intersectional equality issues.
3. Access to justice, enforcement, representative actions and sanctions
The Commission asserts that the best possible antidiscrimination law will be of little value if it cannot be easily enforced; un-enforced and un-enforceable with HIV , which observed that ‘all African people with HIV suffer racism and xenophobia in a heightened form’.
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prohibition of discrimination and harassment can bring the law into disrepute and ultimately do more harm than good.
We regret that the Green Paper has not sufficiently addressed issues of enforcement, access to justice and sanctions.
We believe that an effective enforcement regime is essential to support responsible businesses, which adopt good equality practice and do not discriminate. They need to feel confident that businesses that seek to undercut them by flouting anti-discrimination law will be sanctioned.
To the extent that enforcement of the new equality act will occur in the context of individual complaints, complainants should have real access to justice: each case should be heard by suitable people with good understanding of the law and of the effects of discrimination on individuals and society. Remedies and sanctions must be effective, proportionate and dissuasive.
Access to justice
The Commission supports early resolution of discrimination disputes, which generally benefits all parties. Where that proves unsuccessful or where the victim feels unable to enter into discussion with the respondent because of the nature of the discrimination or harassment they have experienced, then any person who considers that they have been the victim of unlawful discrimination or harassment must have good access to justice. a) Representative actions
For certain types of cases, representative claims should be permitted. This was anticipated in the EC directives, all of which require member states to ensure that ‘associations, organisations or other legal entities, which have … a legitimate interest in ensuring that the provisions of this Directive are complied with, may engage, either on behalf of [our emphasis] or in support of the complainant, with his or her approval, in any judicial and/or administrative procedure provided for the enforcement of obligations under this Directive ’.
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A number of years ago, the Law Commission consulted on representative claims in civil actions; although there was general support for the greater access to justice this would provide, it was decided that representative actions should be introduced only where there is a clear need for them. Last year, the Department of Trade and Industry (DTI) set out proposals to introduce representative actions for consumer protection legislation where breach of consumer protection legislation affects a number of consumers in a similar way.
18 In order to ‘avoid exposing business to spurious or vexatious claims or unwittingly creating a compensation culture ’, the
DTI proposed several safeguards, including requirements that representative actions could only be brought by a body designated by the secretary of state and with prior permission of the court. In relation to discrimination or harassment, the new equality act could provide for representative actions requiring similar safeguards – such as designating the Commission and registered trade unions, and allowing the Secretary of State to designate voluntary sector organisations with a demonstrated interest in discrimination and equality. The
Commission, a trade union or other organisation could bring a representative action on behalf of a group of people who have shared the same unlawful discrimination and who would otherwise all make an identical complaint. b) Removing barriers
In the context of ensuring good access to justice for all victims of discrimination, we recommend an early review of the current restriction that applies to complaints by serving members of the armed forces against the Ministry of Defence and/or one of the
Services as their employer, and complaints of discrimination by qualification bodies. With the ending of the statutory dispute resolution procedure,
18 Representative Actions in Consumer Protection Legislation
– Consultation
, Department of Trade and
Industry, July 2006.
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it is only in these two cases that a victim is unable to seek redress in an employment tribunal without first bringing a complaint within an internal complaints or going through an appeal procedure.
Fair hearing
Complainants should be able to expect a fair hearing by skilled adjudicators with knowledge and understanding of equality legislation and the effects of discrimination on individuals, their health and wellbeing, their relationship with their employer and society generally. a) We are aware of recommendations by the DRC,
EOC and others for non-employment discrimination complaints to be heard by employment tribunals
(possibly renamed ‘equality tribunals’ for discrimination cases) instead of the county or sheriff court. We are also aware that there is not universal support for this proposal. This debate raises wider questions relating to our system of civil justice, and we strongly recommend further discussion and consultation. b) The Commission agrees that lay assessors should be involved in all county or sheriff complaints under the new equality act. Their role should be clarified, and they should be able to take an equal part in the final decision-making process, as do wing members in employment tribunals.
Enforcement and sanctions
We regret that the DLR has chosen not to discuss, in any detail, employment tribunal enforcement procedures on the basis that these have been the subject of separate consultation processes.
19 As the majority of discrimination cases are heard by employment tribunals, this omission is problematic in what is meant to be a full review of discrimination law, for which the terms of reference include ‘an investigation of different approaches to enforcing discrimination law so that a spectrum of
19 The Dispute Resolution Review conducted by Michael Gibbons and the DTI consultation on resolving workplace disputes.
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enforcement options can be considered ’. If the DLR carried out such an investigation, there is no evidence of it in the limited discussion on enforcement.
As there is no reference in the Green Paper to enforcement and sanctions in other jurisdictions, respondents to the consultation cannot know what options the DLR team considered and rejected. For example, in
Ireland, the equality tribunal is able to order reinstatement or re-engagement and to order employers and service providers to take a specified course of action. The latter option has included orders for formal training of interview boards, review of customer service practices, equality training for staff, and inviting complainants and their companions for a complimentary meal. In other EU jurisdictions, sanctions can include publishing the decision, prohibiting the exercise of a profession or activity which depends on authorisation by the public authorities, and suspending licenses or other authorisations.
Remedies and sanctions for unlawful discrimination and harassment must be effective, proportionate and dissuasive. This is required of all member states under the recent EC anti-discrimination directives. Remedies and sanctions in an individual case will be directly relevant to the victim and the alleged discriminator, but also indirectly relevant to other potential victims and discriminators. a) We recommend that, if an employment tribunal finds that a victim’s dismissal was an act of unlawful discrimination (and where the victim is unable to complain of unfair dismissal), the tribunal should be able to order reinstatement or re-engagement. b) Current case law does not permit a person who has been repeatedly refused a job because of discrimination to be automatically offered the next equivalent post.
20 This ruling may well be in breach of the European law obligation to provide a
20 Noone v North West Thames Regional Health Authority (no 2) [1988] IRLR 530.
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proportionate remedy: indeed, frequently it will be the most appropriate remedy. The new equality act should permit tribunals to make such orders. c) The main form of sanctions faced by respondents is financial – the compensation they are ordered to pay. Although compensation awards may be substantial (the highest award in 2006 was
£144,931, the average award was £13,260 and the median award was £7,500), 21 the large number of complaints that continue to be submitted to employment tribunals (including a number of complaints against the same employer in successive years) is strong evidence that the current sanctions are not dissuasive.
In order to make sanctions more effective and, in particular, more dissuasive, the Commission recommends that the new equality act should give employment tribunals in Great Britain those powers which already exist in Northern Ireland under the
Fair Employment and Treatment Order 1998 (Article
39). This would enable employment tribunals to make recommendations that the respondent ‘take within a specified period action appearing to the
Tribunal to be practicable for the purpose of obviating or reducing the adverse effect on a person other than the complainant of any unlawful discrimination to which the complaint relates ’.
Tribunals would only make such recommendations if at the conclusion of a case, based on the evidence received and their findings, they considered it just and equitable in all circumstances to do so. Their recommendation could not go beyond the matters that had been put before them by the parties. We note that the government has rejected this proposal, 22 although without stating their reasons; we urge them to reconsider and to engage in consultation with trade unions, employers’
21 Equal Opportunities Review, issue 167, August 2007, pages 4-5.
22 Success at Work: Resolving Disputes in the Workplace, Consultation , DTI, March 2007 para 4.24-
4.25.
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organisations, the Commission and others on such recommendations and how they might be enforced.
A parallel approach could be instituted for equal pay cases, so that where an employment tribunal upholds an equal pay claim, it should have the power to recommend that the employer carry out an equal pay audit of all or certain sections of its workforce. Such a sanction would, of course, have to be carefully considered in the light of the evidence before the tribunal, the tribunal's findings and the size and complexity of the employer's workforce. d) The results of employment tribunal and county or sheriff court discrimination cases should be easily accessible by members of the public.
In 2003, the large corporate law firm Pinsents (now
Pinsent Mason) surveyed nearly 350 employers from their client and business database about their reasons for promoting equality. Approximately half of those surveyed were large companies; the rest a mix of small- to medium-sized enterprises and public sector organisations. The survey illustrated the importance of reputation and image to employers. Around three-quarters (72 per cent) tackled discrimination because they wanted to be seen as a good employer, whereas one in three respondents said they wanted to avoid any negative publicity. Further, eight out of 10 employers said the effect on their reputation of a discrimination claim was a major concern. This could explain why, whether a claim has substance or not, many employers are choosing to settle claims in order to minimise the damage a tribunal case could do to their reputation.
The Chartered Institute of Personnel and
Development survey referred to above (page 22), which found the law was most frequently identified as the key means of promoting diversity, also found that among the top five ‘drivers’ were ‘corporate
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social responsibility ’ and ‘to be an employer of choice ’ – both of which reflect the importance of reputation.
If reputation is a significant factor in influencing decisions by employers to avoid discrimination and to adopt good equality practice, then employers who have not adopted this course, and who are found by a tribunal or court to have discriminated unlawfully, should be ‘named and shamed’. Discrimination proceedings in employment tribunals and county or sheriff courts are, with very few exceptions, open to the public. There is no reason why the results of such cases should not be easily accessible to members of the public; to achieve this is not a matter of law, but merely of setting up the necessary procedures and systems within the Employment
Trib unal Service and Her Majesty’s Courts Service.
Where decisions are subject to appeal, this should be clearly indicated. Such information would, of course, be important for the Commission in relation to our own enforcement powers. It would also be of interest to public authorities in selecting contractors who will be invited to tender: they would be able to exclude contractors with a recent finding of unlawful discrimination which has become final. e) As well as making tribunal and court decisions accessible to the public, we suggest that consideration should also be given to a system to refer findings of unlawful discrimination to any relevant licensing or qualification body. If the licensing or qualification body is a public authority then, in order to meet its equality duty, it would be expected to consider equality issues when giving out or renewing licenses, permits, certificates and so on within the limits of its statutory powers.
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