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Memorandum submitted by Michael Connolly (E 57)
1. Equal Pay
2. Clause 66 - Indirect discrimination
3. Clause 66 is welcome, but by omitting indirect discrimination, it omits from the Bill's reach some sex discriminatory pay situations, and does not comply with the Equal Treatment Directive.
4. The most obvious exclusion is relative pay differences between different grades of workers. For instance, a grade occupied predominantly by men may be evaluated at 10% more onerous than another grade, occupied predominantly by women. Yet the more onerous grade may be paid 30% more.[1] This indirectly discriminates against women (subject to the difference being objectively justified), yet the Bill offers no remedy. This omission leaves a gap between the Bill's aim to achieve equal pay[2] and what it can achieve, and will contravene the 'Recast' Equal Treatment Directive,[3] which permits pay claims (such as this) to made under the 'conventional' sex discrimination regime.
5. Clause 66 - Hypothetical and successor comparators
6. Clause 66 appears to allow the use of a successor as a comparator in an equal pay claim (thus reversing Walton Centre for Neurology v Bewley [2008] IRLR 588 (EAT)), and complying with the Equal Treatment Directive. It would add clarity and certainty if the explanatory notes expressed this.
7. Clause 74 - Associated employers/cross-employer and cross-establishment comparisons
8. This replicates section 6(1) EPA 1970, which is narrower than EU law,[4] which does not restrict one of the associated employers to being a 'company'. The limit is that there must be a single source of pay (e.g. legislation or a collective agreement) so that there is a 'body which is responsible for the inequality and which could restore equal treatment.'[5]
9. The broader reach of Article 141 was illustrated in South Ayrshire Council v Morton,[6] where the discriminatory problem was that the salary scales for primary school head teachers (75% women), were lower than for secondary school head teachers (25% women). A primary school head teacher, employed by South Ayrshire Council, could use as a comparator a male secondary school head teacher, employed by Highland Council.
10. This principle should be included in the Equality Bill.
11. Clause 13(2) Age - Defence for Direct Discrimination
12. The European Court of Justice[7] (ECJ) ruled recently that this defence (currently in the Age Regulations 2006) must be justified by social policy aims in the national interest, not merely the employer's interest, although of course, on occasion the two could coincide. Clause 13(2) permits an employer's purely private interests to be used as a defence.[8] Thus, the validity (under the parent 'Framework' Directive 2000/78/EC) of this defence must be in doubt because it is too general. If the Bill is to exempt direct age discrimination at all, more specific defences purely with a social policy aim in the national interest should be used.
13. Clause 13(1) - The Scope of Direct Discrimination
14. Explanatory Note 71 makes clear that direct discrimination covers 'association' and 'perceived' discrimination. However, it should make clear also: 1) That the definition covers 'third party' discrimination, where for example, a black person is not hired because of pressure from the workforce, or customer preference. 2) It covers treatment because of a protected characteristic of no particular person. For instance, less favourable treatment of a person on the premise he is gay, or Muslim, even though the perpetrator knows that the victim is straight, or Christian, as the case may be. The Court of Appeal[9] has held that there should be liability in these scenarios because, among other things, a victim should not have to declare his/her sexual orientation, or religion, etc, in order to bring a claim. Otherwise, it would be lawful to use a hostile campaign in an attempt to 'out' a worker. The Explanatory Note should clarify these two matters.
15. Clause 27 - Scope of Harassment
16. The same logic set above in para 14 applies to Explanatory Notes 100 and 101.
17. Clause 36 (2)(d) - Discrimination in Employment - 'any other detriment'
18. The phrase 'any other detriment' is troublesome because it demands that the claimant has suffered a tangible loss.[10] It should be noted that 'wrongdoing' (i.e. direct and indirect discrimination, harassment, victimisation) is defined elsewhere and that the purpose of Clause 36 merely is to identify the field (i.e. employment) where such wrongdoing becomes unlawful. Therefore, it is not necessary that this clause identifies any wrongdoing or suffering. The phrase 'any other detriment' excludes some claims where the victim has suffered no tangible loss. This is inconsistent with the available remedies in the Bill: a tribunal may make a recommendation to reduce any adverse effect of the employer's conduct upon other workers, and award damages purely for injury to feelings.[11] It would be neater, logical, and coherent to replace the phrase with 'other work-related treatment'. See also para 31.
19. Schedule 9, Part 1, Clause 1(1)(c) - Defence of Occupational Requirement
20. This provides that the exception can apply to a person whom the employer has 'reasonable grounds' not to be satisfied that the person does not meet the occupational requirement. This added phrase allows an employer to discriminate because it made a mistake over the protected characteristic of the candidate. Such mistakes can come about by, say, a white person's stereotyped perception of characteristics typical to any particular racial or religious group. For instance, an employer requiring a Christian worker may reject a candidate named Barrack Hussien Obama, being 'reasonably satisfied' he is a Muslim. Discrimination based on 'honest mistakes' and stereotyping is clearly contrary to the policy of the legislation. In AMICUS v Secretary of State for Trade and Industry[12] the Government argued (successfully) that the basis of the same exception in the Sexual Orientation Regulations 2003 was to enable employers to reject a person who refused to disclose his sexual orientation, 'without having to impinge on the applicant's privacy unnecessarily'. Whatever its credibility in that context, the argument is barely relevant when applied to other protected grounds. As such, as well as diluting the Bill, there is a risk that this added phrase will breach the EU Directives on discrimination.
21. If this clause were retained, attention should be focussed on the ambiguity of the word 'reasonably': are the employer's grounds reasonable by the standards of mainstream society, or by the standards of legislation intended to combat the prejudices that exist in mainstream society? To minimise the risk, the Explanatory Notes should clarify this in favour of the latter.
22. Clause 25 - Victimisation 23. The implication of the ECJ decision in Coote v 24. A worker issues discrimination proceedings against her employer (the 'protected act') and: No. 1: Pending the proceedings, the worker applies for another job. Acting on standard legal advice, her employer refuses to provide a reference, in case anything said in it could prejudice the employer's defence. No. 2: As above, but here the reference would have been negative and so the refusal did not reduce the worker's chances of obtaining another job. However, other workers are now deterred from using the discrimination legislation. No. 3: Following standard practice, the employer suspends the worker's internal grievance procedure, pending the outcome of the proceedings. No. 4: In retaliation, the employer fires the worker's fiancé (who worked for the same employer in the same workplace). No. 5: As No 4, save that the fiancé worked for another company owned or managed by the same employer. No. 6: As No. 4, save that the fiancé worked for a company owned or managed by a friend or relative of the employer, who fired him on the say-so of the employer.
25. In these scenarios, the employer's action would deter either the claimant, or other workers (scenarios 2 & 4, the 'chilling' effect), or both, from using the discrimination legislation, yet Clause 25, which replicates the similarly formulated existing provisions, is ambiguous in these scenarios. Generally, case law has favoured the employers, but only by distorting, or even ignoring, the statutory formula,[14] leaving the law uncertain and in potential conflict with EU law expressed in Coote.
26. The technical problems with the legislation are as follows:
27. The formula resembles direct discrimination. Scenarios 1, 2 and 3, do not. The employer is defending litigation in the normal way: it is not singling out the worker because she brought a discrimination claim. The courts have favoured this fine distinction. But there is no room for this distinction the legislative formula. It is unrealistic to separate the bringing of proceedings from their existence (as the courts have at times). These scenarios are more accurately characterised as protected-act-related-victimisation, or more elegantly victimisation by proxy, where the employer acts for a reason related to the protected act. The reason might be benign, or at least acceptable on policy grounds, so logically, this should carry the standard ('Bilka') objective justification defence. This resembles disability-related-discrimination (to be restored in Clause 14). Thus, it would make the law more certain if a separate cause of action were added, victimisation by proxy, carrying a justification defence.
28. The defence itself provides courts with considerable leeway to sympathise with the employer or victim. Nonetheless, at least the law would make more sense and be more transparent because cases would be decided according to the well-established Bilka criteria. The court's leeway could be controlled more if the legislation specified or outlawed particular acts e.g. the suspension of the employer's grievance process, or the withholding of a reference. Considerations for these decisions are 1) how far should the victimisation provisions privilege a person who has done a protected act over and above others, typically the ordinary litigant (after all, at some point in the litigation process most would agree that it should be lawful to treat a worker adversely, by - say - cross-examination at the trial), and 2) the ECJ position (Coote) of preventing deterrents to using the discrimination legislation.
29. A more conservative alternative would be to persist with the single cause of action, but provide specified defences for employers, according to the principles in para 28 above.
30. Clause 36 - Victimisation in employment - 'any other detriment'
31. The catch-all element 'any other detriment' is troublesome because it suggests that the claimant has suffered a tangible loss.[15] The phrase (unlike the rest of the section) excludes some claims where the victim has suffered no tangible loss (scenarios 2 and 4, 5 & 6), but where policy and compliance with EU law demands a remedy. Thus, the catch-all phrase should be reworded as 'other work-related treatment'. See further para 18.
32. Clause 25 - 'subjects B to a detriment' 33. It follows that the new phrase 'subjects B to a detriment' in Clause 25(1) will prove equally troublesome. (The old phrase 'less favourably' should not be employed because there is no longer a comparative element to victimisation.) This accords with Explanatory Note 102, which states that victimisation takes place when one person treats the other 'badly'. Thus the claimant who - reasonably - would have preferred, to have had an albeit negative reference (Scenario 2),[16] or preferred that her fiancé was not fired (Scenarios 4, 5 & 6), would have been treated unfavourably, even if she suffered no tangible harm. Thus, the phrase 'subjects B to a detriment' should be replaced with 'treats unfavourably' or 'treats adversely'. 34. Victimisation of third-parties 35. The existing and proposed formulas do not address scenarios 4, 5 & 6. This is a particularly pernicious form of victimisation, which would deter the person from pursuing the protected act, as well as deterring others from using the legislation. Even it were made clear that the claimant may be able to claim that the treatment of her fiancé was 'unfavourable' to her, (or a 'detriment', according to the Bill's proposed formula) her remedies may not be able to account for his loss, nor the chilling effect of the employer's conduct. (In any case, this becomes tenuous in Scenario 6.) The more obvious victim, the fiancé, has no claim. The obvious and attractive solution is to rephrase Clause 25(1)(a) to read 'anyone does a protected act' (and so on for sub-paragraph (b)). There must be a causal link ('because') between the protected act and victimisation, and so this open formula should not fall prey to a number of undreamt-of meritless claims. However, instead, a more conservative and specific Clause 25(1)(c) could be added, specifying the circumstances outlined in scenarios 4, 5 & 6 as victimisation. 36. Clause 117(1)(b) - Extending the time limit in employment tribunals 37. This clause replicates the existing law and provides tribunals with a discretion to extend the 3-month time bar. Perhaps surprisingly, the courts will not normally extend this time limit because the claimant has waited for the outcome of the grievance process before issuing proceedings.[17] There may be tactical reasons why a claimant launches legal action before the grievance process is complete. But one common reason will be to avoid being time-barred and losing any legal remedy. Where the employer's grievance process is likely to drag on beyond the three-month limitation period, the worker has little option but to issue proceedings. 38. This is a nonsensical position. The Bill should include a rule that time begins to run in the normal way after the grievance process has been exhausted.[18]
39. General
40. Statutory interpretation
41. There are many theories of statutory
interpretation. English judges are rooted in the literal rule of
interpretation, meaning that they will not go behind the face of a statute to
discover its purpose or meaning. The ECJ, by contrast, takes a purposive approach,
and so Community legislation and its domestic counterparts should be treated
the same. Most, but not all, of the Equality Bill, falls under Community law.
In any case, legislation of human rights nature, such as discrimination law,
should always be given a purposive interpretation. The significance of the
different approaches was highlighted by the Court of Appeal in Perera v Civil Service Commission,[19] where a job specification stated that
applicants with British nationality, a good command of English, and experience
in the
42. It would add clarity, certainty, and serve the ambitions of the Bill if a clause were added that the Bill should be given a purposive interpretation.
43. 'A proportionate means of achieving a legitimate aim'
44. This phrase appears many times in the Bill.[20] It is supposed to replicate the Community law formula of 'an appropriate and necessary means of achieving a legitimate aim'. This emphasises that the means employed to achieve the legitimate aim discriminates no more than necessary. It would add clarity, and save many nuanced and semantic debates in litigation, if the Community law formula were repeated.
45. Complex drafting 46. Explanatory Note 73 makes the point that the Bill should be 'accessible to the ordinary user'. Examples of overly complex drafting include: Clause 13(3); Sch 9 Clause l(2); Sch 9 Part 2, Clause 7. All should be made much clearer.
June 2009 [1] See the [2] Clause 64(3) states there is a 'long term objective of reducing inequality men's and women's terms of work'. [3] Directive 2006/54/EC, Articles 1, 4 & 14. [4] Article 141 of the EU Treaty, (Defrenne v Sabena Case C-43/75, [1976] ICR 547 (ECJ)). [5] [6] [2002] ICR 956, (CS). [7] Case C‑388/07
R (The Incorporated Trustees of the
National Council on Ageing (Age Concern [8] See e.g. Seldon v Clarkson, Wright & Jakes [2008] UKEAT/0063/08, (a partnership case falling outside of the retirement exemption in the Age Regulations 2006, reg 30) where it was suggested that forced retirement could be justified (under the similarly-worded reg 3) by the partnership's aims of promoting a congenial culture in the workplace (by avoiding the indignity of evaluating the performance of older partners), and facilitating the expectations of junior associates to achieve partnership. [9] English v Thomas Sanderson [2008] EWCA 1421. [10] See Lord Neuberger (with whom the whole House agreed) in [11] See respectively, Clause 118(3)(b); and Clauses 118(2)(b), 118(6), alluding to the remedies in Clause 113, which includes injury to feelings in Clause 118(6). [12] [2004] EWHC 860. [13] In response to the employer's withholding of a job reference, the ECJ stated: 'Fear of such measures ... might deter workers who considered themselves the victims of discrimination from pursuing their claims ... and would consequently be liable seriously to jeopardise implementation of the aim pursued by the [Equal Treatment] Directive' (at [24]). [14] 'Invented' defences have been: the distinction between the bringing and existence of proceedings, covering Scenarios 1, 2 & 3 (Cornelius v University College of Swansea [1987] IRLR 141 (CA)); 'honest and reasonable conduct' covering Scenarios 1, 2 and 3, (Chief Constable of West Yorkshire v Khan [2001] ICR 1065 (HL)), although this was revised to mean that the claimant had suffered no detriment, which covers Scenario 2 (but no longer 1 and 3, apparently), and potentially Scenarios 4, 5 & 6 (Derbyshire v St Helens BC [2007] ICR 841 (HL). There are no UK cases yet directly on Scenarios 4, 5 & 6.
[15] Derbyshire v St Helens BC [2007] ICR 841 (HL). [16] Chief Constable of West Yorkshire v Khan [2001] ICR 1065 (HL). [17] Robinson v Post Office [2000] IRLR 804 (EAT) [29]-[31] approved Apelogun-Gabriels v Lambeth LBC [2002] ICR 713 (CA), [16] and [24]. [18] Recommended by Browne-Wilkinson J (as he then was): Bodha v Hampshire AHA [1982] ICR 200 (EAT), 205F-G. [19] [1980] ICR 699. [20] Clauses 13, 14, 18, 64, Sch 3, Pt 6, Clauses 23, 24, 25, Sch 9, Pt 1, Clauses 1 & 3, Sch 23, Clause 3. |