Equality Bill

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Q 118Mr. Boswell: Thank you. My second question is a bit more of a structural one. It struck me when I read the Bill that the attempt is to bring together all the concepts of equality in one single process, in one single house. In the interests of legal clarity and better enforceability, I have no difficulty with that.
The one anomaly, which the Fawcett Society dealt with in response to the Green Paper, is the continuing inconsistency between the provisions of the Equal Pay Act and the Sex Discrimination Act. I want to unpack that a bit for the Committee. Is your concern about what might be termed the legal tidy-mindedness of the Bill, in the sense that it would be better to have a one-stop shop for everything—it is all expressed in one Bill but in different provisions? Is there a formal objection?
The second possibility is that there are effects on what might be termed the litigation enforcement role in relation to discrimination; that is, you can have a different regime for pay and there can be breaches there, and for advertising and employment law, which could be a separate issue. Thirdly, is there a material issue about what actually happens in the delivery of gender pay equality?
If I could just add a loop to that, to complicate it further, I know that the Fawcett Society has gone on about the equal treatment amendment directive, which deals with having no comparator, or a hypothetical comparator. Could you unpack some of those issues? If we are to do a once-in-a-lifetime job, ought we to be doing more than we are, and, if so, how do we do it?
Katherine Rake: The Fawcett Society always asks for more, of course, because we are very impatient with the rate of change in achieving gender equality in respect of this issue and others, but you put your finger on an important point. There has always been a dual track in legislation with the 1970 and 1975 Acts. Obviously, tearing up the Equal Pay Act is a very tricky thing to do politically, especially a year in advance of its anniversary—
Q 119Mr. Boswell: If I might interpose for a moment, I think that one of the arguments is that, because an implied contract is built in, it gives greater protection.
That is part of our argument about the Equal Pay Act. It was designed for its time, and its life has very much come to an end. Inconsistencies remain regarding the need for a real comparator in equal pay cases, for example, and, as I understand it, regarding the current recommendations on employment tribunals, which are able to make binding recommendations on all other cases, but not in equal pay cases. That now seems totally nonsensical, and one thing that we need to do in this and subsequent legislation is to make sure that the strong contractual protection that is offered in the Equal Pay Act is maintained, but that we do not persist with these anomalies that weaken the cases that come through the courts. We need better cure when they come through court, but we also need to mirror the positive approach to equality that has happened with the gender duty, and to make sure that that is in the provisions on equal pay. That is why we argue that organisations need to prevent pay discrimination from happening in the first place by using mechanisms such as audit, which would be a preventive measure.
Joyce Gould: The Bill as a whole is, almost by default, going to raise women’s living standards overall. If you take each part of the Bill and put them together as a package, I think that is what you achieve and that is its real value. In terms of some of the specifics, Katherine mentioned the gender duty that we currently have, and the Women’s National Commission supports the new equality duty, but we are concerned. We will continue to argue that, when that is looked at, which will be in terms of sector, not strands, the gender duty concept is not lost, because it is terribly important that gender goes across every strand.
Q 120Mr. Boswell: Do you think there is a danger of that?
Joyce Gould: I hope not, but we do not know. There will be consultation, and, obviously we will play our part by putting our evidence into the consultation. In fact, we make sure that we maintain a very strong gender element, because, as I say, it covers every strand of the areas we are talking about; in every issue, women are involved. For us, that is terribly important. I see the Bill like that, rather than as something where I can pick out the differences in terms of equal pay and sex discrimination. Of course, there are anomalies, which I am hoping that the Bill will sort out, rather than the anomalies continuing to exist.
On the specifics, on equal pay, society has changed from when the Equal Pay Act came in. We have a different employment environment out there, and we therefore need different legislation to counter that.
Emma Stewart: I do not have much to contribute above and beyond what my colleagues have said. Legislation is not necessarily a core focus of our organisation, so I will leave that to my colleagues. In answer to your question on what more the Bill could do, we advocate assessing the 250 benchmark of the number of employees that an organisation has to have in order to be open for an equal pay audit. We advocate looking to reduce that number, because our understanding is that organisations that have 100-plus employees often have a dedicated HR resource and therefore should potentially be able to contribute their experience of auditing. If you do not consider that, I think you are looking at missing out a huge proportion of businesses in the UK, because we know that half the people in the UK are employed in business with under 250 staff.
Q 121John Mason: I want to continue the point about comparators. You all seemed quite optimistic, but perhaps I am more pessimistic. Having been in Glasgow city council for a number of years, I found that eventually the women home-help workers got to compare themselves with the men city builders in building services, which was good because it brought up the women. The council’s problem was that it was competing with the private sector, which was not operating under the same bounds. So, you had one company employing men for building at a higher rate and another company employing women at a lower rate for home helps. The council ends up in an impossible position. Its answer has been to chop itself into bits so that it can get round the equal pay rules in the longer term. I just wonder about this. It is all built on having a colleague. If organisations or employers are able to split colleagues off from each other, does that make all of this useless?
Katherine Rake: The issue of contracted-out services and the splitting of particular services that used to be within public sector boundaries but now are run by smaller private organisations is massively important. That is why the issue around hypothetical comparators becomes so pressing—you will not have an actual colleague to compare yourself with. So, if there is a traditional and historical under-evaluation of women’s work, and it is a public function that is being done by another organisation, that organisation should still have a responsibility under the gender duty to promote equality and to eliminate pay discrimination. Unless you get rid of the provision that says that you have to have an actual comparator, you disable that process. That is why it is so critical in the complex world of contracted-out services to ensure that we get rid of the anomaly that hampers those equal pay cases being taken. Your argument is very well made, and it supports even more the need for hypothetical comparators within equal pay cases.
Joyce Gould: Equal pay is the only area of discrimination laws where claimants are not allowed to have a hypothetical comparator. We are talking about the Equal Pay Act, and the Sex Discrimination Act is a classic example of the incompatibility between the two Acts. We feel that because of occupational segregation, if women are to be able to make that challenge, we have to have hypothetical comparators. I think—and Emma may agree—that it is particularly important for part-time workers because who, in reality, are they going to compare themselves with? The only way in which they will be able to make a comparison is if they have some criteria from hypothetical comparators. Therefore, there is a very strong case for them. My understanding is—and I stand corrected if this is wrong—that they are permissible under European law.
Q 122John Mason: Thank you. My second point concerns the public sector equality duty where we are asking public authorities to take on board all the protective characteristics. Is that helpful to yourselves and the issue that you are talking about, or is it less relevant?
Katherine Rake: The single duty needs to make sure that it protects the characteristics of the existing duties in terms of the specifics that are under the gender duty—that will definitely need to be carried over into the single duty. Legislatively, there is no problem in having a single duty. I think that it makes it much clearer for those organisations. Our concerns come much more from on-the-ground practice of those bodies that are bound by the duty. We have certainly had evidence from our work in the criminal justice system, as elsewhere, that there is a fundamental misunderstanding of what the duty means. A lot of organisations think that the gender duty obliges them to treat women and men equally and provide exactly the same services, when in fact the obligation is to produce circumstances in which you can produce equality, so that you would have different treatment in order to get to the same outcome. There is a big process of education and sharing of best practice that needs to happen among those agencies that are bound by the duties, which is not happening at the moment.
The Equality and Human Rights Commission clearly needs to play a much more active role, both in identifying where there is not compliance with the existing duties, which unfortunately affects Whitehall, as it does our local authorities, but also much more positively to make sure that organisations learn from each other as to what the duties should be in practice. I do not think we have any problem with the legislative framework. The problem is on the ground, and people’s misunderstanding that this is about men and women being treated the same, when actually it is about different treatment in order to get the same outcome. That argument has not necessarily been understood.
Joyce Gould: Absolutely. We believe that it is the right direction to go, but as I said before, we have to be absolutely clear that we do not lose anything that we currently have with the gender duty. I do not think that has been examined in the way that it should have been—to find out what has actually happened on the ground—and we are trying to negotiate with the EHRC to do some work for the Women’s National Commission on what has happened in terms of gender equality on the grounds of how much it has been complied with, how much awareness there is and so on. I think that will be very helpful when we get the public sector equality duty in helping to provide proper guidance and proper awareness measures of what is expected of the public services when that happens.
I also think that, as part of that, there has to be transparency in the way the duty is going to work so that people can see it working, in the way that they do not see the gender duty working, except in some areas. That is important.
One of the consequences of the gender duty—Katherine touched on it—is that somehow there is the feeling that single-sex activities are no longer relevant. If there is anything that I would have liked to see in the Bill, it would have been a bit more strength and emphasis on giving support to single-sex establishments such as Rape Crisis to make sure that they do not get closed down, because there is the feeling that somehow we are into a generic society and therefore the individual organisations do not matter.
Having said that about the gender duty, the concept, where it is working, is extremely good and we absolutely support it. When the Government gave their evidence to the Committee on the Elimination of Discrimination Against Women, which they have to do every four years, this was one of the key points that they made. The panel at the United Nations was extremely favourable towards the actions the Government have taken and said that it is a world-class model that they would actually use and advertise for other countries to use. We have got a basis there. We have to make sure that it works well.
Emma Stewart: I endorse those points. I welcome the fact that it is a very clear and simple way of bringing together a number of measures. The key will be how to promote best practice and how to unpack that for a large number of public sector organisations so that they understand what they can do in practice to implement this, and how then to measure those opportunities that are put to them.
For instance, looking at flexible working practices, a large number of public sector employers have highlighted the fact that they offer flexible working practices but the take-up within those organisations needs to be clearly monitored.
In relation to the socio-economic duty of public sector organisations, in London we have seen some good examples of that working in practice and those initiatives need to be better promoted. We know that with some of the local authorities that we work with in Haringey there is an emphasis on tackling child poverty, specifically in relation to tackling inequality for women. There are initiatives looking at providing services in PCTs and GP surgeries for women who face both health inequality and poverty to be able to access welfare rights services. Very practical initiatives, which I think can be promoted, are very valuable.
The Chairman: Two more hon. Members have caught my eye. Bearing it in mind that we have to keep an eye on the clock, perhaps answers can be slightly shorter so that they can both get in.
Q 123Sandra Osborne: Having worked for Women’s Aid for many years, I am aware that, under the Sex Discrimination Act 1975, there was an exemption in relation to employing only women. Baroness Gould, are you suggesting that that is in question under the new Bill? Would it be put at risk?
Local authorities are using that argument and closing down such centres at a substantial rate, although, to be fair, I have to say that more money has gone into Rape Crisis, which has helped it in particular. However, it has not changed the concept of local authorities and how they perceive single-sex organisations, which I think are terribly important.
I have concentrated on women because that is what we do in the Women’s National Commission, but a number of men are asking for men-only organisations, particularly health-type organisations, and they have not been able to get funding for them. That is something we should look at a little more.
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