Memorandum submitted by Discrimination Law Association (E 12)
Submission to the House of Commons Equality Bill Committee
DLA has a varied membership of approximately 300. It brings together a broad range of discrimination law practitioners, lawyers, legal and advice workers, policy experts, academics and concerned individuals, all united around a commitment to improving equality law, practice, education and advice for those who face discrimination.
The DLA has been actively involved in all of the stages over the preceding four years during which the Equality Bill has been developed, making written submissions and engaging in meetings with officials in relation to many of the issues contained in the Bill.
Given our mandate and our membership described above, it is not surprising that we are concerned that the Equality Bill should be as effective as possible as a legal instrument to eradicate discrimination and to promote true equality of opportunity.
The DLA convened a meeting of members yesterday, 18 May, for the purpose of developing our response to the Equality Bill. In order to meet the Committee's very tight timetable with today as a final deadline, we are not able to provide a detailed submission; we set out below a list of key issues, with brief annotations expressing our concerns.
It is our intention to prepare briefings for Committee members in relation to the issues we have identified. If there are particular issues about which Committee members would specifically welcome advice in relation to the possible legal implications of provisions in the Bill, we would be pleased to try to provide this.
Discrimination Law Association - list of Equality Bill issues
· Clause 13 Direct Discrimination The introduction of new terminology to define well-established and well-understood provisions: a key example occurs in Clause 13 which would use "because of" in its definition of direct discrimination, as a replacement for the now established "on grounds of" which is contained in all of the current anti-discrimination legislation.
o The DLA sympathises with a "plain English" approach but is concerned that the introduction of this new formulation may increase confusion rather than clarity.
o We are concerned that "because of" may be read by some as requiring the kind of conscious motivation or intent not currently required (and with good reason) for proof of discrimination.
o Further, the "on grounds of" formulation is found in all of the EC anti-discrimination law provisions with which UK law must be compliant and must implement (Directives 2000/43/EC; 2000/78/EC; 2002/73/EC; 2004/113/EC; 20006/54/EC). We wonder, therefore, about the prudence of replacing this central, and now well entrenched, aspect of the definition of discrimination.
o While the courts will be bound to interpret UK law to be consistent with these EU measures in areas covered by EU law, there are key areas within the Equality Bill which are not currently covered by EU law, for example the application of non-discrimination to all public functions, for which the courts would be expected to apply the ordinary meaning of the words in the statute.
· Clause 26 - Exclusion of protection against discrimination for children and young people under age 18.
o The DLA welcomes the Government's recognition that age discrimination outside the field of employment and vocational training should be outlawed. We are concerned, however that the Bill in its present form will not protect children and young persons against such discrimination despite good evidence of their experiences of disadvantage and harassment in relation to public and private sector services as well as a range of public functions, including for example treatment by police services.
· Part 1 Chapter 2: Discrimination on the basis of association or perception
o Whilst these forms of prohibited discrimination are referred to in the Explanatory Notes (para.71), indicating that they are encompassed within direct discrimination, in the view of the DLA it is important for them to be referred to explicitly on the face of the legislation. In other words, the prohibition on discrimination by way of association and/or by reason of perception should be expressly stated.
· Clause 24 Exclusion of Pregnancy/Maternity and Marital/Civil Partnership status from Harassment protection:
o The DLA is concerned about the specific exclusion of the protected characteristics of pregnancy/maternity and Marriage and civil partnership from protection against harassment in all circumstances under Clause 24 (5). We do not think the Explanatory Notes provide a satisfactory explanation.
· Exclusion of protection against harassment on grounds of religion or belief and sexual orientation in the context of services and public functions, disposal and management of premises and education in schools - Clauses 27, 31, 32, 33 and 80.
o Despite a sound evidence base for extending harassment provisions to cover harassment on grounds of religion or belief and/or sexual orientation to the non-employment sphere (e.g. evidence of homophobic bullying in schools), no such provision is contained in the Bill.
o In making regulations to provide protection against sexual orientation discrimination outside the field of employment there was an undertaking to review the omission of harassment when a single equality bill was proposed.
o The obligation of the courts to apply human rights protection, including Article 9 re freedom of religion or belief and Article 10 re freedom of expression provides a guarantee that these rights will be maintained and not eroded by enacting protection against harassment on grounds currently excluded.
· Clause 18 Indirect Discrimination - justification provision fails to meet the standard required under EU law.
o The justification provision (Cl 18(2)(d)) does not use the language of binding EU Law. For example, in Article 2(2)(b) of the Framework Directive (2000/78/EC), it is stated that an indirectly discriminatory provision, criterion or practice will be prohibited unless it "is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary".
o Cl. 18(2)(d) does not correctly transpose the formulation in the Directives. Whereas it repeats the language used in domestic statutory provisions, the DLA is concerned that this formulation has always provided weaker protection than envisaged by the Framework Directive and other EU anti-discrimination directives.
· Clause 14 Discrimination arising from disability - too limited in scope
o As the explanatory notes suggest, this clause is intended to provide protection for disabled people comparable to the protection under the "disability related discrimination" provision in the Disability Discrimination Act 1995 which, since the House of Lords decision in Lewisham -v- Malcolm last year has not provided the protection Parliament had intended. The DLA's concern is that by using the term "because of B's disability" rather than "related to B's disability" the scope of protection will be far narrower than the provision it replaces.
o As discussed above, we are concerned that the term "because of" implies or will be understood as implying intention or motive, while the critical aspect of this particular form of protection for disabled people is that intention or motive should not be relevant. The provision it replaces uses "related to" which does not convey any intention. A sub-clause requires the discriminator to know or to have reasonably be expected to know that B had a particular disability. Knowledge should be more than sufficient, and any suggestion within the law that B must also show intention to treat her/him in a way that amounts to a detriment would seriously limit the benefit of this provision.
· Clauses 19-22 and numerous Schedules and Regulations - Duty to make reasonable adjustments
o The DLA welcomes the proposal to have a single 'trigger' for the duty to make reasonable adjustments, namely "substantial disadvantage". We are concerned however about the wide scope for regulations which will not form part of the Bill and which could significantly dilute this important form of protection for disabled people.
o Clause 19 states that the comparison in assessing substantial disadvantage should be with persons who are not disabled. We are also concerned that the strict definition regarding comparators in Clause 22, which applies to comparators for purposes of the duty to make reasonable adjustments, will narrow the scope for application of the duty.
· Clauses 59 - 65 Equal Pay -
o The provisions in the Bill maintain, and in some instances make less favourable, the law as set out in the Equal Pay Act 1970 and relevant case law.
o These provisions fall short of the requirements of EU law.
o The DLA will be working with trade unions and others to recommend important amendments to these clauses in the Bill.
· Secondary legislation
o The DLA is concerned that in a number of important parts of the Bill the actual content is not stated on the face of the Bill but is left to regulations to be made by the Secretary of State.
o This removes from full Parliamentary scrutiny issues like the scope of protection against age discrimination in areas such as insurance and financial services, health and social care, including which types of preferential treatment based on age should remain unlauwful.
o It permits regulations to remove rights, for example under Clause 152 concerned with positive action or under Schedule 18 in relation to the public sector equality duty.
· Multiple discrimination - not included in the Bill
o It is now fully recognised that people are complex and multi-layered, sometimes they are discriminated against or harassed because of a combination of protected characteristics, that the law needs to be able to recognise this complexity.
o The DLA strongly urges that the Equality Bill should include an explicit provision to outlaw multiple or intersectional direct or indirect discrimination and/or harassment.
· Clause 118 Enforcement by employment tribunals
o The DLA welcomes the new power that employment tribunals will have to make recommendations requiring employers to take action in relation to the wider workforce and not merely the individual complainant, and urge that this provision remains part of the Bill.
o We are concerned about its enforceability and will propose measures in this regard.
We would be pleased to provide any clarification or amplification of the above if that would be helpful to the Committee.