39. SUPPLEMENTARY MEMORANDUM SUBMITTED BY THE PUBLIC INTEREST RESEARCH UNIT
1. This memorandum was submitted subsequent to the Public Interest Research Unit (PIRU) giving oral evidence to the Committee, and is designed to supplement PIRU's answers to questions 70, 90, 95-99, and 122. It addresses enforcement of the unlawful discrimination provisions; the Disability Equality Duty; PIRU's proposals for different specific duties on different organisations; and the consequences of Malcolm.
2. Employment tribunal recommendations (Q. 71)
2.1. We consider that tribunals should have the power to make recommendations in all employment cases; and that:
(a) There should be a provision, in materially the same terms as section 17A(5) DDA, and applicable across the employment field, giving the tribunal the power to increase the amount of compensation when the employer fails, without reasonable justification, to comply with a recommendation.
(b) In addition to a power directed at obviating or reducing adverse effects (related to the complaint) on the complainant, there should (bearing in mind, for example, that the complainant will quite often no longer be employed by the respondent) be a power to make recommendations aimed at preventing further discriminatory acts against any employee, ex-employee, and/ or applicant for employment.
(c) The power to make recommendations should be linked in practice (and perhaps in law) with Equality and Human Rights Commission (EHRC) enforcement powers. For example, a failure to comply with a tribunal recommendation could provide a basis for the EHRC to require an action plan on the part of the employer in question.
(d) There should be a power to order reinstatement for discriminatory dismissal.
3. Transferring the best of the Disability Equality Duty (Q. 90)
Attention to all strands
3.1. There appears some danger that 'due regard' could be understood, at least in practice, as something which can be achieved across strands (in a summative fashion), rather than having to be had in the case of each strand. Of particular concern, 'less popular' strands (in an organisation or in general) might be tokenistically dealt with in the multi-strand Equality Impact Assessments.
Need to eliminate discrimination
3.2. We would argue that the requirement (in the Disability Equality Duty and as proposed for the Single Equality Duty) to have due regard to 'the need to eliminate discrimination that is unlawful ...' is unnecessarily restrictive; and that it would be preferable to require 'due regard to the need to eliminate adverse discrimination, including that which is unlawful under the Act.' Otherwise, the duty would appear to not encompass, for example, avoidable and detrimental discrimination which would be unlawful but for a weak (but sufficient in law) justification.
A need to set objectives in the Disability Equality Scheme
3.3. The 2005 disability specific duty regulations do not require an organisation to set objectives in its Disability Equality Scheme. Regulation 2(3)(c) does provide that the Disability Equality Scheme shall include a statement of "the steps which that authority proposes to take ...". Such steps, however, should be directed at achieving objectives (at a lower level of generalisation than the aspirations set-out at section 49A(1)); the steps would not, in themselves, constitute objectives.
3.4. One of the steps might, for instance, be 'to interview all staff on sick leave'. Without objectives to which this is directed, however, it could promote equality or discrimination. Some managers, for example, might use the interview to gather evidence that an employee will not be able to return to an unchanged work situation within a reasonable time, and should, therefore, be dismissed. Others might, in contrast, use it as an opportunity to discuss reasonable adjustments that could enable an employee to return to a changed work situation.
4. Enforcing the equality duty
4.1. Even if compliance with the General Duty is taken to require no more than Equality Impact Assessments of proposed policies, the available research indicates that most public authorities are likely to have been non-compliant in relation to the majority of their policies.
It is notable, for example, that the Commission for Racial Equality (CRE) - which should, perhaps, have been the exemplar of best practice - conducted, according to our Race Back from Equality report, no Race Equality Impact Assessments on any of its HR policies and procedures between 2001 and 2007.
4.2. It does not appear possible for the Equality and Human Rights Commission to effectively monitor and enforce compliance, with a single equality duty, on the part of around 44,000 public authorities. It appears relevant, for example, that (according to our aforementioned report) the CRE, between 1 January 1999 and 1 June 2006, did not challenge, by means of a claim for judicial review, any failures to meet the general race equality duty (but did, to good effect, intervene in R (Elias) v Secretary of State for Defence).
4.3. There are also serious doubts as to whether judicial review is a sufficient means to enforce the general duty, including, in particular, because a quite limited number of individuals are likely to risk what, according to the Public Law Project, could be £20,000 in costs. However, where organisations have taken (or supported) cases, judicial review, encompassing the question of compliance with the general equality duties, does appear to be having an important impact on policies and practice.
Proposals for future enforcement
4.4. While we think the EHRC could play a far more active role in enforcing the equality duties, as could various other regulatory bodies, the scale of the task suggests that the single equality duty also needs to be enforced through enforcement of the unlawful discrimination provisions. For example, where an employment tribunal determines that a failure to comply with the duty contributed to an unlawful act, -
(a) the tribunal should be able to recommend that the respondent take specified actions to comply with the general duty in the relevant area.
(b) there should, perhaps, be the possibility of awarding exemplary damages where there appears to have been an ongoing breach of the duty which is likely to have contributed to acts of unlawful discrimination additional to that complained of (and where, therefore, the normal level of compensation would be inadequate to punish the wrong doer).
(c) there should, perhaps, be a provision whereby, in determining whether justification has been made out, due regard shall be had, in particular, to whether non-compliance with the general duty appears to have contributed to the unlawful act.
4.5. In addition, Social Security tribunals should, we would argue, be empowered to make recommendations to DWP where failure to meet the general duty appears likely to have contributed to unlawful action against benefit claimants.
5. Different specific duties on a range of different organisations (Qs. 95-99)
5.1. We are arguing for different specific duties on a range of organisations. We have focussed on DWP because of concerns that DWP may be unlawfully discriminating against large numbers of benefit claimants; and because DWP does not appear to have recognised (or publicly admitted to recognising) this strong possibility.
5.2. We would suggest, as a possible approach, that all public bodies (subject to the specific duties) be subject to the same foundation specific duties (presumably including, for example, production of an Equality Scheme); but that there be a final regulation (the variation regulation) which would reflect what needs to be done to meet the single general equality duty in the different circumstances of different organisations. Indeed, we would argue that the requirement to assess whether clients (or, for example, patients, prisoners, or students) require reasonable adjustments might be something that should be included in the 'variation regulation' of a large number of public bodies.
6. Discrimination against benefit claimants
6.1. A good illustration of the nature of the problem is what might be called 'public-private discrimination'. For example, an employee could resign because unlawful harassment is damaging his mental health, and JCP could suspend his Job Seeker's Allowance for having left his job voluntarily without just cause. Later he may be required to undertake training, be thrown-off for being late (when being late was the result of severe depression), and have his benefits suspended for having lost his place through misconduct. In the space of 12 months, he could have been (we would argue) unlawfully discriminated against by an employer once, JCP twice, and a training provider once.
6.2. It seems unlikely that he would recover well from the initial depressive episode in these circumstances or be able to get quickly back into employment. We would argue that DWP needs to remember that claimants cannot be punished into getting better; and that the sick and disabled are not criminals to be cracked down on (however politically popular this may appear).
7. Retain disability related discrimination and introduce indirect discrimination (Q. 122)
(a) It is, we would argue, important to retain the Disability Related Discrimination provision (as well as introducing an indirect discrimination provision into the disability strand). Introducing the later, without retaining the former, could lead to an overall regression in the level of protection for disabled people.
(b) It is not sufficient to assume (despite ODI's assurances) that the pools of comparison will operate in a more (or sufficiently) flexible way when applied to disability. Post-Malcolm, the correct comparator needs to be spelled out i.e. the relevant provisions need to be, what might be called, Bingham proofed.
(c) The objective justification defence, for indirect discrimination, should give proper effect to the Directive i.e. there should be a requirement to show that a provision, criterion or practice is 'objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary'. The government's current proposals appear to omit (on the face of the proposed law) the requirement to show that the provision, criterion or practice is 'necessary' (or even reasonably necessary).