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Additional Memorandum submitted by Equality and Diversity Forum (E 52)
Summary EDF supports (in order of their position in the Bill): · A reduction in the number of occurrences of third party harassment permitted before protection is triggered (clause 37(3)), · Deletion of clauses 65 and 66 (equal pay) and new provisions to allow hypothetical comparators in equal pay cases, · Protection against harassment on the grounds of religion or belief, sexual orientation and gender reassignment in schools (deletion of clause 80(10)), · Powers for tribunals to make recommendations in all discrimination cases including equal pay cases (clause 118), · The new public sector equality duty applying to all public sector bodies working with children, including schools and children's homes, · Clarification that procurement is a public function (clause 149), · Simplification and widening of positive action powers (clauses 152-3), · A time limit for Ministers to exercise the power to make exemptions from the ban on age discrimination in service provision (clause 190), · A purpose clause for the Bill (NC 22), · Powers for representative actions (NC10), as well as · Amendments that remove risks of regression, particularly in relation to clause 64 (equal pay) and clause 143 (disability within the public sector equality duty).
About the Equality and Diversity Forum The Equality and Diversity Forum (EDF) is a network of national NGOs committed to equal opportunities, social justice, good community relations, respect for human rights and an end to discrimination based on age, disability, gender and gender identity, race, religion or belief, and sexual orientation. Most of EDF's member organisations have submitted their own briefings to the committee, either singly or together. EDF as a whole supports many of the points made in members' individual submissions although for the sake of brevity they are not repeated here. However, we would particularly like to draw the committee's attention to our shared concern that some provisions risk weakening current GB law on vitally important issues. In particular, we share: · The Disability Charities Consortium's concerns that the new public sector equality duty (clause 143) appears to be weaker than the existing disability equality duty, and · The concerns of Unison, the Fawcett Society and others that clause 64 would weaken (already inadequate) existing equal pay legislation. We recognise that Ministers do not intend to weaken existing law and hope the committee will make sure there is no regression in practice.
The Bill overall The Equality and Diversity Forum (EDF) strongly welcomes the Equality Bill because: · Despite existing equality legislation and policies achieving much change, many inequalities still exist; · The Bill makes it easier for employers, service providers, advisers and individuals to follow the law in practice by bringing together numerous pieces of sometimes inconsistent and inaccessible legislation; · It strengthens the law by, for example, making it unlawful for service providers to discriminate unfairly against older people; and · It makes it easier for employers and service providers to act in ways that will advance equality of opportunity.
This document This briefing covers parts 5-15 of the Bill. It highlights areas of the Bill that EDF members collectively particularly welcome and also those where they think the Bill could be further improved.
Employers' liability for third party harassment - clause 37(3) Clause 37(3) limits an employer's liability for third party harassment to circumstances in which the employer knows that there has been three occasions of harassment. We recommend that the words "on at least two other occasions" should be replaced by "on at least one occasion". An employee should not have to wait until there have been three occasions of harassment that s/he has brought to the attention of the employer. One occasion is enough to alert the employer that there is a need for action and we would like to see the words 'on at least two other occasions' removed.
Equal pay - clauses 65 - 66 Clauses 65 and 66 seek to prevent women from using the ordinary direct and indirect discrimination provisions in relation to terms and conditions save where there is no actual person with whom they can compare themselves. The clauses are excessively complicated and are in any event inconsistent with European law in the Directive of the European Parliament and of the Council of the 5th July 2006 on the implementation of the principle of equal opportunities and equal treatment for men and women in matters of employment and occupation (recast). This Directive does not permit the exclusion of provisions outlawing direct and indirect discrimination in relation to terms and conditions and therefore requires that hypothetical comparisons must be possible in that regard in just the same way that they would be in relation to a race case etc. The Directive has been fully in effect from 15th August 2008.
We recommend these clauses be deleted and that the Equality Bill be amended to allow claimants to identify hypothetical comparators in cases for sex equality clauses.
Harassment in schools - clauses 80(10) Clause 80 would allow schools to harass current or potential pupils on grounds of gender re-assignment, religion or belief or sexual orientation.
There is evidence that harassment on these grounds within schools is a problem and it is difficult to see what good purpose is served by allowing this to be lawful. Unlike users of some other services, school pupils are in effect a 'captive population' who cannot readily swap to an alternative provider. In this instance we also do not see that there is any danger of a fettering of the right to freedom of expression. It is generally accepted that the right to free expression that teachers enjoy as citizens is constrained to some degree when they are acting in their professional capacity. For example, teachers would not usually be able to claim their right to free expression was constrained by rules that prevented them expressing their personal political opinions in the classroom. Accordingly we do not believe that preventing teachers from acting in ways that could be defined as harassing pupils on grounds of religion or belief, gender identity or sexual orientation would create a potential conflict with free expression.
Enforcement (clause 118) In addition to the existing remedies available to employees who have been subjected to discrimination the Bill will allow Employment Tribunals to make recommendations in discrimination cases which will benefit the whole workforce and not just the particular applicant who won the case. This will help to prevent similar types of discrimination recurring within the same workforce and will act to counter systemic patterns of discrimination. Failure to comply with any such recommendation could be cited in any future action against the same employer.
The EDF very much welcomes this provision as a cost effective way to combat discrimination. However, to be fully effective it is important that Employment Tribunal decisions are publically accessible, for example, on the internet. They are currently not easily accessible and this needs to be remedied.
We would also recommend that tribunals should be able to make recommendations on equal pay cases. Individual equal pay cases are particularly likely to highlight more widespread of systemic issues within a workplace and it is therefore particularly likely that the problems highlighted by successful equal pay cases could be usefully addressed by recommendations from a tribunal.
Public Equality Duty (clauses 143 - 151) The purpose of the public sector equality duties is to prevent institutional discrimination and make sure public services fulfil their potential to tackle unequal opportunities and foster good relations between different sections of the community.
The EDF broadly welcomes the proposal to have a single public sector equality duty. However, there are a range of views about whether all aspects of the duty should be extended to the characteristic of religion or belief: the majority think that it should be but others have significant concerns.
Children and young people We welcome the fact that children will be covered by the public sector equality duty but do not believe it is appropriate or necessary to exclude schools and children's homes from the provisions. It is now widely accepted that inequalities are formed and become entrenched in childhood. Schools and children's homes consequently are uniquely placed to lead the public sector's drive towards advancing equality of opportunity and fostering good relations between people of all ages.
Schools can contribute
greatly towards developing intergenerational projects that foster greater
tolerance, understanding and respect between old and young people and research
by the Children's Rights Alliance for
Research suggests that older children are treated less favourably by safeguarding and child protection services than younger children: for example, many teenagers report being refused help by children's services, apparently because social workers and their managers assume they are old enough to cope on their own. Recent research carried out for the Department for Children, Schools and Families by the Open University bears out these reports, suggesting that 'unspoken assumptions' are often made that older children have in some way brought abuse upon themselves, in contrast to perceptions and treatment of younger children experiencing the same treatment. A 2007 Children's Society review of police and local authority responses to young runaways found that some local authorities had 'unwritten policies of refusing any [social services] accommodation for 13 to 15 year olds'. Thresholds were so high for teenagers accessing child protection services that in some areas only a risk to life led to action. In the context of this evidence, it is very important that children's homes should be covered by the public sector equality duty in relation to age.
Public Procurement (clause 149) All public bodies spend significant parts of their budgets on purchasing goods, works and services from external contractors. This includes contracts for major construction projects such as schools, roads or office buildings, for equipment or supplies, buying in specialist services, such as IT support, or 'contracting-out' services which the public body itself previously carried out, such as school dinners, hospital cleaning, training, or management of a prison. This is referred to as public procurement. Overall, excluding major defence contracts, public bodies are spending more than £175 billion each year in contracts for works, goods or services.
One way for public bodies to meet their equality duties and to secure effective employment equality is to include equality requirements in their contracts for works, goods or services. The Bill clarifies that public bodies can use procurement to promote equality. It will allow Ministers to specify how public bodies should do so. This will be subject to further consultation and regulations.
The EDF strongly welcomes this clarification, which will enable public authorities to use their powers to promote equality, when it is appropriate, when they buy in goods and services.
Positive action (clauses 152 and 153) The Bill's positive action provisions: · Simplify the law on positive action in general · Allow so-called 'tie breaks' when employers have two equally well qualified candidates · Extends women-only shortlists to 2030 and makes it explicit that political parties can use positive action to ensure better balanced representation on other grounds
We welcome these provisions[1]. The most important is the simplification of the law on positive action in general. Currently, employers and others, such as educational bodies, who want to take action to redress the disadvantage facing some actual or potential employees or service users have to deal with a plethora of different rules about when positive action can be used. This discourages action that would help secure equality of opportunity. Simplifying the law will help employers and service providers who can see a case for action to do something about it. However, it is worth noting that it is not necessary specifically to include disability as a protected characteristic for this clause as positive action in relation to disability has never been unlawful nor will it be if these provisions are brought in.
The so-called
'tie break' provision will allow employers to recruit or promote a person from
a disproportionately under-represented group where that person is 'as
qualified' as the other candidate/s. It has been drafted with the intention of
bringing
So, for example, if a primary school head whose workforce is predominantly women has one male and one female candidate for a teaching post who are equally well qualified for the job, the head can opt to employ the male candidate in order to redress the under-representation of men in the school's workforce.
The proposed provision does not permit recruitment or promotion only because a person has a protected characteristic, it only applies to candidates who are equally qualified and in a situation where a group is under-represented. Nor does it permit the operation of quotas.
The EDF welcomes this provision as a possible step, not a requirement, that employers can take to facilitate employment or promotion of people with protected characteristics who are under-represented. It needs to be acknowledged that rarely are two candidates for a job or for promotion identically qualified so it is unlikely to be used very frequently. However, in view of the chronic under representation of certain groups within particular sectors of the workforce this clarification could be beneficial.
We also welcome the clarification that no discrimination is permissible in relation to the selection for political parties (clause 99) together with the ancillary provision that political parties may take limited steps to counter under representation of people with a particular protected characteristic.
Power to create exemptions from the ban on age discrimination in service provision - clause 190 The Bill gives Ministers power to make exceptions to the prohibition on age discrimination in order to permit age appropriate treatment such as concessionary travel, targeted disease prevention programmes and holidays aimed at particular age groups. The EDF strongly welcomes this extension of protection: there is ample evidence of unfair treatment of older people in some services and these provisions are therefore essential.
Currently clause 190 of the Bill gives very wide ranging powers to ministers to create orders to exempt from the age provisions any industry or practice - proposals for the use of this power should be set out during the parliamentary process to ensure the commitment to stamp out age discrimination is not misinterpreted or overridden in the future.
We are also concerned that the ban on age discrimination should be brought into force as soon as possible, which requires the powers conferred to clause 190 to be exercised promptly.
We therefore support amendment no 206 being proposed by Dr Evan Harris and Lynne Featherstone that would require orders to be made under clause 190 within six months of Royal Assent.
A Purpose Clause
Purpose clauses set out the goals and underlying aims of the law in question. They are to provide guidance for courts and tribunals interpreting the legislation in question. Unlike preambles and recitals, purpose clauses are operative parts of legislation, with the same status as other provisions, and are applied as integral parts of the statute. They are intended to give clear legislative expression to the underlying purpose of the statute in question, and to set out its objectives, goals and conceptual basis. This in turn can give guidance to the courts and tribunals in interpreting other provisions of the legislation.
Given the interpretative difficulties and lack of clarity that have
dominated the application of anti-discrimination legislation in the
EDF members would recommend that the Bill be amended to include a purpose clause and support the amendment being put forward by Tim Boswell. We believe that this concise clause stating the goals and underlying principles of the Bill would be a useful tool for all those involved in applying the law in practice.
We therefore support amendment no NC 22 being proposed by Tim Boswell which would insert a purpose clause into the bill.
Representative Action EDF welcomes the steps the Government has already taken to identify a basis on which representative actions could be taken in relation both to discrimination cases and on a wider basis. Powers for the Equality and Human Rights Commission and suitable other bodies, such as registered trade unions, to take representative cases would remove the burden from groups of individuals and ease the effective operation of the tribunal system.
EDF therefore supports the new clause NC10 proposed by Sandra Osborne and David Drew to introduce representative action powers.
June 2009 ANNEX ONE - EDF MEMBER ORGANISATIONS Advice Age Concern and Help the Aged Board of Deputies of British Jews British Humanist Association British Institute of Human Rights Children's Rights Alliance
for Citizens' Advice Discrimination Law Association End Violence Against Women Campaign Equality Challenge Unit Fawcett Society Forum Against Islamophobia and Racism Institute for Public Policy Research JUSTICE Law Centres Federation Mind National AIDS Trust Policy Research Institute on Ageing and Ethnicity Press for Change Race on the Agenda ( RADAR Refugee Council RNIB RNID Scope Stonewall The Age and Employment Network (TAEN) TUC UNISON Unite the Women's Budget Group Women's National Commission Women's Resource Centre [1] The British Humanist Association is opposed to the 'tie break' provision |