Memorandum submitted by the TUC (E 22)

The TUC welcomes the Equality Bill and supports the overall approach taken to consolidating the existing discrimination laws and to levelling up and improving protection in some areas. However, it has concerns with the drafting of some of the specific provisions and is disappointed that bolder steps have not been taken to ensure equal pay for equal work between men and women.

Direct discrimination

The TUC questions why the wording of clause 13 on direct discrimination deviates from the wording in existing discrimination laws and the wording of the European anti-discrimination Directives by replacing "on grounds of" with "because of". While "because of" may appear simpler to the lay person, there is extensive case law around how "on grounds of" should be interpreted and domestic courts and tribunals are obliged to interpret the law in line with the European Directives which use "on grounds of" so the change could create unnecessary confusion.

Perception and association discrimination

The TUC is pleased that clause 13, which defines direct discrimination, and clause 24, which defines harassment, have been drafted broadly enough to enable claims from people who associate with someone who has a particular protected characteristic or because they are wrongly perceived to have a particular protected characteristic. This recognises that prejudice does not just affect those who are themselves disabled, older, or of a particular race, sex, sexual orientation or religion or belief etc., but affects those who are related to them, seek to stand up for them, or who are targeted because they are thought to have a particular characteristic. This measure partly responds to the European Court of Justice ruling in the Coleman v Attridge law case, in which it was held that a mother of a disabled child who it appeared had been harassed and treated less favourably than other working parents by her employer, should be allowed to bring a claim of discrimination and harassment under the Disability Discrimination Act. It is also a simplification measure as, at present, some discrimination laws provide protection from discrimination arising from association or perception (e.g. race, religion/belief) and some do not (e.g. sex, disability).

Discrimination arising from disability

Clause 14 of the Bill includes a new provision on 'discrimination arising from disability'. This replaces a provision in s.3A of the DDA, which was frequently relied upon by disabled workers to challenge practices or policies that unfairly excluded them for reasons linked to their disability, but which was made virtually redundant because of the interpretation the House of Lords gave it in the case of Malcolm v Lewisham Borough Council. Clause 14 reinstates the protection for disabled people by removing the need for any comparison between a disabled and a non-disabled person when trying to establish if there has been discrimination. The TUC supports this approach, recognising that disability discrimination should not be defined solely in terms of whether disabled people are treated equally to non-disabled people, often different treatment is needed in order to achieve real equality of opportunity. The TUC would question why the words "related to" used in the DDA were replaced by "because of" in clause 14.

Pregnancy and maternity discrimination

The TUC is very concerned with the drafting of the pregnancy and maternity discrimination clauses. The Bill effectively introduces a reasonableness defence to pregnancy and maternity discrimination, significantly weakening the provisions in the Sex Discrimination Act and making the Bill incompatible with EU law. Clause 17 provides that discrimination occurs when a woman is treated "less favourably" at work because of her pregnancy or maternity. It does not specify less favourable than whom. This is because it was always problematic trying to identify an appropriate comparator for a pregnant woman because of the uniqueness of her situation and the need to sometimes take special steps to protect pregnant women and those on maternity leave from detriment. Domestic and EU case law established that a comparator is not required, the equal treatment Directive simply refers to "less favourable treatment of a women related to pregnancy or maternity leave" and eventually, in 2008, the pregnancy discrimination provisions in the SDA were amended to delete the comparator requirement after a successful judicial review action by the former Equal Opportunities Commission. It is therefore disappointing that in clause 16(7) of the Bill, new wording has been added to weaken the position that was so recently arrived at in the SDA. It reads: "In this section and section 17, a reference to a woman being treated less favourably is a reference to her being treated less favourably than is reasonable". It is these underlined words that open the way for a reasonableness defence to a pregnancy or maternity claim when there was previously no defence and no such defence is permissible in EU law. In order to clear up the confusion that appears to arise from the reference to "less favourable" treatment, the TUC believes that sub-clause 16(7) should be deleted and that the pregnancy and maternity discrimination provisions in the Bill should be re-drafted so that they refer to a woman being treated "unfavourably" for reasons "related to" her pregnancy or maternity.

Indirect discrimination

Clause 18 applies the same indirect discrimination definition to all cases (in some race and sex discrimination cases an old definition applied) and it extends protection from indirect discrimination to disability and gender reassignment, which the TUC welcomes as a levelling up measure.

Reasonable adjustment duty

The TUC is pleased the reasonable adjustment duty for disabled people that appears in the DDA is retained in clause 19. However, we do not understand why clause 22 which sets out specific requirements for comparators has been applied to clause 19. It is unhelpful and confusing to introduce such requirements for the duty.

Third party harassment

Clause 37 includes a specific provision aimed at ensuring employers take steps to protect their workers from harassment by third parties. A similar provision exists in the Sex Discrimination Act and it has been extended to cover all protected characteristics. Sub-clause 37(2) provides that an employer will be liable for harassment by a third party if the third party harasses the worker in the course of their employment and the employer "failed to take steps as would have been reasonably practicable to prevent the third party from doing so". The problem is that sub-clause 37(3) provides that a worker will not be entitled to such protection unless the employer knows that the worker "has been harassed in the course of ...employment on at least two other occasions by a third party". This 'three strikes' provision means that an employer could send a worker to a client who they know has caused problems in the past, for example, a young female recruit could be sent to a client that the employer knows has sexually harassed other female members of staff. In such a situation, the employer can reasonably foresee that such harassment may occur and it is therefore reasonable to expect them to take action to try and protect the worker from being exposed to such degrading treatment. Similarly, because of the 'three strikes' requirement, this provision would not offer any protection to the workers in the classic 'Bernard Manning' case, in which black members of staff were subject to racial abuse on a night when the comedian was performing at their hotel without the employer intervening or taking any steps to protect them. The TUC believes that sub-clause 37(3) should be deleted.

Equal pay

In 2007-08, there were 62,706 individual equal pay claims lodged at employment tribunal. Equal pay is now the most common form of litigation, making up a third of all claims. However, equal pay claims can take decades to complete (only 9,471 equal pay cases were disposed of in 2007-08), with appeals to the Employment Appeal Tribunal, the Court of Appeal, and sometimes the House of Lords or European Court of Justice on various complex points of law, before returning to the tribunal for decision on the facts. The progress in narrowing the gender pay gap and ensuring equal pay for work of equal value between men and women has been painfully slow in recent decades. The TUC had hoped through the Discrimination Law Review, which was set up to inform and advise on the creation of a single Equality Act, the Government would take the opportunity for a thorough review of the legal framework for equal pay. The TUC is disappointed that the Bill does not contain provision for mandatory equal pay audits that would require employers to take proactive steps to review their pay systems and practices and to take action to ensure equal pay, without individuals having to resort to lengthy and costly litigation. The TUC is also disappointed that the narrow approach of the Equal Pay Act which relies heavily upon the identification of actual comparators is retained and that there is no provision for collective redress.

Direct discrimination equal pay claims

One of the greatest obstacles to challenging discriminatory pay practices is the need to identify an actual male comparator doing equal work in the same employment. Clause 66 enables a woman who is unable to identify an actual comparator to bring a sex discrimination claim under clause 13 of the Bill if it relates to a directly discriminatory practice. This would enable her to argue her case in terms of how a man would have been treated. While this slight broadening of opportunity is welcome, nowadays most equal pay cases tend to involve indirect discrimination, often arising from the segregation of women into particular kinds of work, which makes it particularly difficult to identify comparable men in the same employment in such cases. The TUC believes that the use of hypothetical comparators should be permitted in such cases too.

Pay secrecy clauses

Clause 72 makes a pay secrecy clause in a worker's contract unenforceable and provides protection from victimisation. However, a worker will only benefit from if they have been involved in a "relevant pay discussion", which is defined as being about pay and whether there is discrimination because of one of the protected characteristics. Under existing law if a worker were providing information to assist a colleague them with a potential discrimination claim then they would already be protected from victimisation. The TUC believes this clause is too narrowly drafted and the "relevant pay discussion" requirement should be removed.

Powers to enable gender pay gap reporting

Clause 73 will enable Regulations requiring private sector organisations with more than 250 employees to publish gender pay gap information. The Government has said it does not intend to use this power before 2013 to enable time for a voluntary approach to work. The TUC has been asked to work with the EHRC and with other stakeholders to develop a set of metrics for such reporting. It believes there should be publication of information that enables meaningful comparisons to be made between men and women doing equal work.

Enforcement

The TUC supports the extended powers in clause 118 for tribunals to make recommendations when there has been a finding of discrimination against an employer. Tribunals already have powers to make recommendations to alleviate the discrimination that the individual claimant suffers and if an employer fails to abide by such a recommendation then the tribunal can award compensation or increase the amount of compensation awarded as in sub-clause 118(7). The TUC is concerned that a Conservative amendment seeks to leave out this sub-clause and therefore to weaken existing statutory measures. The new part of clause 118 is the power for tribunals to make recommendations that could reduce the discrimination another person in a similar situation faces (118(3)(b)). Given that 70% of individuals who bring a discrimination claim have already left employment with that employer, this is an important provision that will enable tribunals to recommend changes to employment practices to ensure lessons are learned from individual cases and that the chance of further tribunal cases arising is minimised.

Single public sector equality duty

The creation of a new single public sector equality duty in clause 143 covering all the main protected characteristics is welcomed by the TUC. A wider single duty, replacing the three separate race, disability and gender duties, should ensure public authorities are providing public services to all parts of the community and be easier to comply. The TUC welcomes the enabling power in clause 147 for regulations to be drafted imposing specific duties that will ensure public bodies are meeting the requirements of the general duty in clause 143. The specific duties to the existing race, disability and gender duties, guide public bodies on what good equality practice is and the steps they need to take e.g. monitoring and gathering information, assessing the impact of policies on different groups and consulting and involving those affected. The enabling power in clause 149 for specific duties to be drafted setting out how public bodies should pay due regard to equality when procuring goods and services from the private sector is particularly welcome. This should ensure that public money is not spent in a way that furthers discrimination and that it encourages good practice from the private and voluntary sectors.

Occupational requirements

Paragraph 1 of Schedule 9 allows an employer to appoint someone of a particular protected characteristic where the nature of the job and the context in which it is carried out requires it and so long as it is a proportionate means of achieving a legitimate aim. This replaces and simplifies various similar provisions in existing legislation. The TUC is concerned that in drafting this generic provision the rights of transgender people have been weakened. In the SDA employers can apply an occupational requirement related to gender reassignment status, but there is an additional provision which came in with the Gender Recognition Act 2004 that provides that where a person has a gender recognition certificate then their gender is their acquired gender and they must be treated as such and the requirement does not apply (s.7A(4)). The Bill should contain a provision that disapplies any exceptions to equal treatment on the grounds of gender reassignment status where an individual is in possession of a gender recognition certificate.

Employment for the purposes of an organised religion

The TUC is pleased that the exception for "employment for the purposes of an organised religion" which appears in Reg.7(3) of the Employment Equality (Sexual Orientation) Regulations 2003 has been more narrowly drafted in the Bill, although it would still question whether it is needed at all given the general occupational requirement exception. A group of trade unions challenged this provision in a judicial review case and the court, while upholding the provision, had explained that it should be interpreted to apply to a narrow range of jobs, such as clergy positions, and the tests it contains should be applied objectively. The amendments made in the Bill reflect the court's judgement. Paragraph 2 of Schedule 9 explains that applies to jobs that wholly or mainly involve "leading or assisting in liturgical or ritualistic practices, or promoting or explaining the doctrine of the religion" and that the exception should be applied where it is a "proportionate" to do so.

Other exceptions

There are a range of other exceptions in existing discrimination law that are replicated in the Bill which the TUC believes should be challenged. The exception limiting the backdating of benefits for civil partners in paragraph 18 of Schedule 9 means that the survivors of civil partners are not given equal treatment compared to married partners despite the same contributions being paid into occupational pension schemes, often over many decades. Furthermore, a recent ruling by the ECJ in the Maruko case held that it was direct discrimination on grounds of sexual orientation not to provide a surviving partner with "a survivor's benefit equivalent to that granted to a surviving spouse". The TUC also believes that the age exceptions in Schedule 9 should have been reviewed, not least the continuation of the statutory default retirement age and the age bands in the National Minimum Wage. Finally, the TUC has long been concerned with the exception in s.9 of the Race Relations Act that allows discrimination against foreign seafarers in pay and is in breach of EU law. It notes that clause 76 of the Bill allows its provisions to be applied to seafarers and work on ships and hovercraft "only in such circumstances as are prescribed". The TUC would like further clarification as to the Government's intentions with regard to this clause.

Union Equality Representatives

The TUC has been supporting the development of the role of union equality representatives in the workplace. These are union representatives who are given specialist training to represent and advise workers on equality matters, including equal pay, and working with employers to tackle discrimination where it occurs. Unlike other union representatives, including union learning reps and safety reps, equality reps have no right to paid time off to do their duties and to be trained. The TUC will be seeking an amendment to the Bill to put union equality representatives on the same statutory footing as other union representatives. This would make an important contribution to helping employers get things right in the workplace and avoid costly litigation.

June 2009