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Memorandum submitted by Equality and Human Rights Commission (E 17) Contents
Who we are and what we doThe Equality and Human Rights Commission (the Commission) was
established on 1st October 2007. We are here for the 60 million people of
1 Protecting and promoting equality; 2 Protecting and promoting human rights; and 3 Ensuring good relations.
This briefing contains the Commission's views on key elements of the Equality Bill. A separate briefing from our Disability Committee covers disability issues. The Commission will also produce further detailed briefing for the Committee as the Bill progresses through Parliament. Introduction1. The
Commission strongly welcomes the Government's landmark Equality Bill which we
believe will ensure that 2. We are particularly supportive of the following measures: · extension of protection from age discrimination in goods, facilities and services; · the duty to consider socio-economic disadvantage; · the new single public sector equality duty (PSED), including the extension to the new grounds; · measures to tackle the gender pay gap; · power to ensure that procurement is a lever to tackle inequality; and · extension on positive action. 3. We believe that the Bill as drafted is strong, but would like to use this submission as an opportunity to set out areas where we think the Bill could be strengthened or should go further. Public Sector Equality Duty 4. The Commission welcomes the new Public Sector Equality Duty (PSED) and believes it will encourage public sector bodies to tailor public services more closely to community need. The new outcomes-focussed, streamlined approach will help public bodies deliver fair public services more efficiently. 5. We are currently analysing the Bill to ensure that it maintains the key requirements of the current duties. We plan to discuss further with Government a number of stated exemptions/exclusions, particularly in respect of schools. 6. We are
concerned at the necessity of Religion and belief
7. We support
provision in the Bill to extend the duty across all the strands of discrimination
that people face. The Commission recognises that there are concerns about
extending the duty to include religion and belief, mainly due to fears that
this will lead to active promotion of religion and belief in 8. We believe this is unfounded, as the duty is designed to protect people from discrimination on the grounds of religion and belief. There is no requirement on public sector organisations to promote particular religions or belief systems and in fact doing so may run counter to the duty. 9. In practice the duty would mean that a public authority in considering service provision, would need to have due regard to advancing equality of opportunity for those with a characteristic who suffer a disadvantage. For example, Muslim women are sometimes reluctant to access services because of concern about their modesty and so may be reluctant to access vital health services at an early stage. 10. The
duty will focus the minds of policy-makers and service providers so they
identify disadvantage and find solutions, as can be seen by the experience of 11. The Commission welcomes Clause 149 which sets out provisions for a Minister to impose specific duties on public authorities in respect of public procurement. We are aware of concern that this will add red tape and be a burden on business. However, we believe that this will actually be beneficial to business as it will level the playing field as all firms will understand what is expected of them. 12. We also believe that in explicitly obliging public bodies to deliver public services that are designed for and accessible to everyone, this will provide better value for money for the taxpayer. The Government Equalities Office will be consulting the Commission and other stakeholders on the content of any specific duties on procurement over the summer. Socio-economic duty13. We welcome the Government's decision to require strategic public authorities to consider socio-economic disadvantage in the planning and monitoring of the strategic services they provide. The Commission was an early supporter of this provision as we believe there is a clear linkage between inequality and socio-economic disadvantage. 14. As strategic authorities begin to proactively monitor the impact of key policies for their socio-economic impact, we could start to see significant differences in the way that public services are configured and targeted. It is at this level that the duty could have an impact in shaping public services. We also believe that the proposed duty could enable these authorities to fully explore the relationship between the traditional equality areas and socio-economic inequality. 15. As the
Bill stands, in 16. We are
aware that a continuing dialogue is taking place between the Welsh Assembly
Government and AgeProtection against age discrimination in Goods, Facilities and Services (GFS)17. The Commission supports measures outlined in the Bill to ensure providers of GFS treat older people fairly and equally. We would like to highlight that it is possible to shape the legislation in order to ensure that older people do not lose targeted services and benefits where they can be justified; for example, free bus passes and flu jabs. 18. The issue of financial services has been raised consistently by stakeholders as an issue of concern, because of the widespread use of age as a determining factor for access to and pricing of products. The Commission shares the concern that there is no specific mention of age in relation to financial services on the face of the Bill and it appears that any exemptions on age will be dealt with through later regulations. The aim of the Bill should be to ensure that financial services providers are not permitted to refuse to quote, or prohibit individuals from purchasing products (e.g. bank accounts) on the basis of any of the protected grounds. 19. The Commission is looking for legislation that ensures where age (or another protected ground) is used as a risk factor, this is based upon actuarial data, rather than assumptions, and that age is not used as a proxy for other more relevant risk factors. If insurers wish to use any of the other protected grounds then these should all be subject to the same limitations, except race which should remain prohibited. 20. We are keen to support service providers and employers and will produce statutory and non-statutory guidance on the implementation of the new age provisions. We also accept the need for a transitional period in order to get the legislation right but would like the Bill to commit to a clear timetable for implementation. Mandatory retirement age (MRA)21. The Commission believes removing the MRA will put age discrimination legislation on an equal footing with the other equality strands and make the law simpler and clearer - for both employee and employers. Being forced to stand down from a job because of your age rather than your ability is one of the most blatant forms of age discrimination older people face. 22. We
understand that employers are concerned that abolition of the default
retirement age will mean an increase in both red tape and legal claims.
However, in the 23. There are positive business and economic benefits to scrapping the MRA as well as demographic drivers. By 2021 there will be four million more older people and one million fewer adults under 50. Employers will have no choice but to rely on a more age diverse workforce. 24. Following
a Protection against discrimination in GFS for under-18s 25. The Commission believes that children and young people should also be protected from discrimination; it is one of the recommendations of the Committee on the Rights of the Child that the UK Government ensure full protection against discrimination on any grounds, including by taking all necessary measures to ensure that cases of discrimination against children in all sectors of society are addressed effectively, including with disciplinary, administrative or - if necessary - penal sanctions. 26. As a matter of principle we believe protection from discrimination should be the default position. We understand that there are concerns about the complexity of exceptions for age-specific services and that service providers fear they may be vulnerable to legal action. However, in other areas of discrimination law there are exceptions which are made clear and workable due to robust legislation, guidance and codes of practice. Gender pay gap 27. Nearly 40 years after the Equal Pay Act we still live in a society where for every pound earned by our sons, our daughters will take home less than 85 pence. The Commission therefore welcomes measures in the Bill to create transparency around pay by lifting gagging clauses, as well as the Government's request for the Commission to embark on a programme of work with social partners to develop a set of metrics for reporting on the gender pay gap. Hypothetical comparators (Clause 66) 28. The Commission welcomes Clause 66 which allows for hypothetical comparisons in direct discrimination cases. Although this is an improvement on the current requirement for an actual comparator in equal pay cases, we believe this is limited in scope, as it will not address instances of indirect pay discrimination. 29. The
explanatory notes give the example of an employer telling a woman that he would
have paid her more had she been a man. However, direct discrimination of this
kind is rare, and most pay discrimination would probably arise from pay
structures and general practices that could only be tackled as an indirect
discrimination claim, which this clause does not address. The Commission
believes extending this clause to include indirect discrimination will have a
greater impact in reducing the pay gap. Recommendations of Employment Tribunals (Clause 126 (2)) 30. Equal pay is a systemic problem and the current remedies available for individuals who succeed in equal pay claims do not address nor resolve this. The Commission believes that the power to make recommendations would have the effect of reducing the gender pay gap without the need for costly and lengthy individual litigation, reducing the number of equal pay claims taken against an individual employer, as well as the number of equal pay claims employment tribunals (ETs) currently hear. There are approximately 44,000 equal pay claims in the Tribunal system, and a further 30,000-40,000 NHS claims outstanding. 31. The Commission believes Employment Tribunals should be allowed to make wider recommendations on a complaint relating to a breach of an equality clause (for example, on pay practices, which would be of future benefit to the employee, the employer, and its wider workforce). Representative actions 32. In light of the number of equal pay claims in the ET system, we recommend the introduction of representative actions which would allow the Commission, trade unions and other representative groups to bring claims on behalf of groups of employees. Currently, only individuals can bring a claim of discrimination or unequal pay, and while this is obviously appropriate where the claim is one that affects only one individual, it is cumbersome and wasteful in circumstances where a group of people may have a claim. Root and branch review 33. Beyond the Bill, the Commission is calling for a high-level review to explore further options for radical reform. Positive Action (Clause 152) 34. The Commission welcomes the provisions in the Equality Bill on positive action. Many employers recognise the benefits of a diverse workforce, recruiting from a wide pool of talent ensures that there are new perspectives which can give business an edge. 35. The aim of the Equality Bill is to simplify the law on positive action with a view to encouraging greater use in certain limited circumstances and to lift restrictions in order to permit harmonisation with EU law on tie breaks. The new provision on tie-breaks would allow, in certain limited circumstances, employers choosing between two equally-qualified candidates to select the successful candidate on the grounds that they are from an under-represented or disadvantaged group. 36. It should be stressed that positive action provisions are permissive only; there is no obligation on employers to adopt positive action measures. Positive discrimination i.e. the automatic preference of applicants from particular groups in the recruitment process so that a less qualified applicant might be given a job over a better qualified rival, would remain unlawful. Direct discrimination (Clause 13)37. The Bill proposes to prohibit direct discrimination thus: ''A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others". 38. Currently most domestic equality legislation and all European equality legislation uses the phrase 'on grounds of' when defining direct discrimination. The only exception domestically is the Race Relations Act which uses the phrase 'on racial grounds'. 'On grounds of' and 'on racial grounds' have been clarified in case law and are well understood. The Commission is therefore concerned that the use of 'because' may be interpreted as requiring a higher standard of proof than is currently required under domestic legislation (i.e. requiring the complainant to show that the discriminator intended to treat them less favourably). Also, we are concerned that it will lead to costly litigation to test if it adequately implements EU law, which uses the 'grounds of' wording. 39. The Commission also believes that protection from discrimination on grounds of perceived protected status and association should be included on the face of the Bill and not hidden in the explanatory notes (which do not have legal force). This would clarify the provisions and avoid regression: currently discrimination on grounds of perception and association with the protected characteristics of race, religion and belief and sexual orientation is prohibited under domestic legislation. Finally, it is necessary to prohibit discrimination on grounds of perception and association to comply with EU requirements (as demonstrated, for example, in relation to association by the Coleman decision[1]). Trans related issues Definition 40. The Commission welcomes the removal of the requirement to undergo medical supervision. However, as stated above, the explanatory notes set out the intention that the Bill should prohibit discrimination against those who are perceived to belong to a protected group, or associate with people from that group, including on the grounds of someone's perceived gender reassignment (and because they are associated with someone who has undergone gender reassignment).This is potentially of significant benefit to those who experience discrimination on grounds of their gender identity, but who are not protected under the current definition as they do not intend to live full time/permanently in their acquired sex (which is about 40% of transgender people). However, protection from perceived discrimination (and association) is not set out in Clause 13; this will lead to legal uncertainty and is potentially regressive for other protective grounds. Young people 41. The Commission would like to see protection for trans children from harassment in schools. The protection offered by existing education legislation, common law and the Human Rights Act does not provide the same level of protection from harassment as is granted to other equality strands, such as race in education.
Pregnancy and maternity discrimination (Clauses 16 and 17) 42. The Equality Bill weakens the legal protection of pregnant women and women on maternity leave and would be a regression from what currently exists. 43. It is a well-established principle that unfavourable treatment on the ground of pregnancy or maternity leave is automatic direct sex discrimination. The inclusion of a reasonableness test in the definition of pregnancy and maternity discrimination the Equality Bill, for work and non-work cases, is likely to encourage employers and service providers to believe that they can discriminate against pregnant women where it would be awkward, disruptive or somewhat costly to the business not to do so. The Commission seeks the removal of this new test by deleting Clause 16(7). 44. We also believe that changing the test from "less favourable" to "unfavourable" treatment would better reflect the EU Directives and case-law on pregnancy and maternity discrimination, and would be a more transparent and accurate statement of the law Other issues 45. The Commission is also scrutinising a number of other issues including discriminatory adverts, and we will keep the committee up-to-date as our work develops. June 2009 [1] Sharon Coleman, who has a disabled son, brought a case claiming she was forced to resign from her job after being harassed by her employers and refused flexible working, which was allowed to other employees. The European Court of Justice (ECJ) has found that treating employees less favourably because of their caring responsibilities for disabled relatives is unlawful and that 'disability discrimination by association' should apply to British law. |