WRITTEN
EVIDENCE SUBMITTED
BY DISCRIMINATION
LAW ASSOCIATION
1. The DLA welcomes the opportunity to make very
brief written submissions to the Home Affairs Select Committee
("The Committee") in its current Inquiry on Equalities.
In particular, the DLA wishes to set out, in brief, its concerns
about the potential negative impact on equality protection of
the manner in which the government is approaching equality issues,
including the policy proposals foreshadowed in the Budget announcement
earlier this month. In the DLA's view, the matters we highlight
below are inconsistent with the putative principles set out in
the Government's December 2010 Equality Strategy. Against the
background of a significant assault on public sector funding and
the public funding of legal services, the DLA regards it as imperative
to draw the Committee's attention to the practical and adverse
impact of the issues highlighted. The DLA has also had sight of
the following submissions to the Committee:
(a) The Equality and Diversity Forum's ("EDF")
"Memorandum from Equality and Diversity Forum to the Home
Affairs Select Committee Inquiry on Equalities" ("EDF
Memorandum").
(b) "Written Evidence submitted by SCOPE",
March 2011 ("SCOPE Submissions").
(c) Submission to the House of Commons Home Affairs
Committee inquiry into the "Equalities agenda of the Government",
Equanomics UK: 11 March 2011 ("Equanomics UK Submissions").
(d) Further submission to the House of Commons
Home Affairs Committee inquiry into the "Equalities agenda
of the Government". Equanomics UK: 30 March 2011 ("Equanomics
UK Further Submissions").
2. The DLA endorses, in broad terms, the sentiments
expressed in those documents.
3. By way of introductory comment, the DLA specifically
endorses the EDF's criticism of that aspect of the Equality Strategy
which suggests that equality may be best guaranteed by simply
recognising the needs of individuals. Such an approach ignores
a wealth of evidence, known to the government, of the systemic
and particular disadvantage faced by particular groups in society.
An approach which side-steps this evidence cannot be characterised
as consistent with promoting substantive equality for all.
DEPARTMENTAL OVERSIGHT
4. The DLA was pleased to note that the Government's
Equality Strategy was intended to reflect its recognition of equality
as "an integral part of [its] commitment to build a stronger
economy and fairer society".[79]
However, the way that the government has sought to organise equality
oversight, and its apparent indifference to the disparate impact
on disadvantaged groups of its fiscal policies, is at odds with
that stated recognition. In addition, there are clear gaps in
the Equality Strategy and the DLA refers the Committee to the
criticisms made of the strategy by other interested organisations.[80]
5. The DLA welcomes the fact that the Equality
Strategy highlights the existence of the first ever inter-departmental
ministerial Group on Equalities and identifies some of the ministers
responsible for particular equality areas/protected characteristics
(See p.1). It is a little disappointing that the group does not
appear to reflect the diversity of the communities it has been
set up to serve (eg only four of 13 are women and there appears
to be no visible BAME presence). In addition, as far as the departmental
oversight of equality matters is concerned, the DLA wishes to
point to the following issues which do not assist in the delivery
of coherent and sound equality policy:
(a) It is not clear from the Equality Strategy
whether anyone, and if so who, bears responsibility for certain
areas of equality protection such as those relating to Pregnancy
and Maternity or Transgender issues.
(b) The allocation of responsibility for different
protected characteristics in different ministries is not in principle
a negative step but there are major concerns about the ability
of the government to have a coordinated, effective and coherent
approach where for example race and religion is dealt with by
the Department for Communities and Local Government and gender
falls under the aegis of the Minister for Women and Equalities.
It would be helpful if the Government Equalities Office were to
make it clear how proper co-ordination is to be effected and how
it will ensure that the different ministries all have sufficient
knowledge, understanding and expertise in relation to the equality
issues now placed within their remit.[81]
The DLA notes and endorses the questions raised by Equanomics
UK in relation to the absence of a nuanced strategy in relation
to race equality.
THE GOVERNMENT
EQUALITY STRATEGY
AND RECENTLY
PROPOSED FISCAL
RESTRAINT MEASURES
6. On 23 March 2011 the Chancellor, George Osborne
announced, as part of the government's Plan for Growth, the following
proposals which will have a significant impact on equality:
— The
"dual discrimination" provisions in the 2010 Equality
Act will not be implemented.
— The
right to request flexible working to parents of 17 year olds (planned
for April) will be repealed.
— The
Government will consult to remove the requirement in the Equality
Act 2010 for businesses to take reasonable steps to prevent persistent
harassment of their staff by third parties.
— There
will be a moratorium exempting micro-businesses and start-ups
from new domestic regulation for three years from 1 April 2011.
— There
will be funding for additional work experience placements for
young people and apprenticeship places.
— Government
will launch a public thematic review to reduce the stock of regulation
and will launch a major drive to revise burdensome EU regulations
and directives.
7. The DLA, together with other equality-interested
organisations, were stunned to learn that the government used
its budget announcement on 23 March to indicate its intention
not to implement, or to repeal, equality enhancing measures. Enquiries
made by the DLA indicate that the EHRC, the statutory body established
to promote and enforce equality and human rights law, was not
aware before the budget announcement of the proposals to repeal
the "dual discrimination" provisions or those relating
to "third-party harassment". Few equality organisations
would have expected to learn of proposed repeals in this context.
Interested organisations, including the DLA, have campaigned for
years for protection against discrimination based on a combination
of characteristics to be incorporated into domestic legislation.
Similarly, the provisions in relation to persistent third party
harassment reflect careful judicial consideration of the effect
of the amendments to the Equal Treatment Directive (Council Directive
76/207/EEC) by Council Directive 2002/73/EC.[82]
It is, in the DLA's view, antithetical to any notions of transparent
and open governance for well wrought and debated provisions to
be discarded without any warning or obvious justification. This
cannot possibly be seen as evidence of a commitment to "embed"
equality. The DLA wishes to place on record with the Committee
its general concern about this approach as emblematic of the government's
increasing lack of respect for equality considerations. The DLA
expressly endorses the point made in the EDF Memorandum referred
to above in this regard.
8. In its Equality Strategy, the government indicated
that it would continue to "prioritise interventions that
will advance equality of opportunity and make the greatest difference
to people's lives".[83]
The measures that the government proposes to dispense with—as
pre-figured in the budget announcement—together with the
other public sector spending cuts proposed, will do precisely
the opposite of this. As suggested in the EDF Memorandum, the
proposals made in the budget announcement appear to treat equality
considerations as a burden on business to be eradicated rather
than a benefit to be pursued.
9. The measures which the DLA wishes to highlight
specifically are as follows:
(a) Refusal to implement dual discrimination
provisions: These provisions were intended to ensure that victims
of discrimination were able to seek redress for discriminatory
treatment based upon their lived experience as individuals and
not simply persons of one or other protected characteristic such
as disability, sexual orientation or gender. This was intended
to reflect the fact that individuals might be discriminated against
as "white women", "black men", "Muslim
women" etc rather than simply as men or women or persons
belonging to a particular religious group. It is inconsistent
with the government's commitment to respect the "needs of
individuals" for this progressive measure to be discarded.
The provision was aimed precisely at respecting persons as whole
individuals rather than as fractured entities to be regarded as
suffering disadvantage only on the basis of one aspect of their
being. Further the evidential basis for the assumption that these
provisions would have costs businesses £3 million annually
is not at all clear. It is quite possible that the implementation
of these provisions might be costs-saving where they avoid multiple
claims.
(b) Removal of the requirement in the Equality
Act 2010 for businesses to take steps to prevent persistent harassment
of their staff by third parties: The DLA is extremely concerned
that this retrograde step may place the UK government in breach
of its EU law obligations (See R(Equal Opportunities Commission)
v Secretary of State for Trade and Industry [2007] I.C.R. 1234
at paragraphs 36-40 for consideration of the requirements of the
Equal Treatment Directive in this regard). It was suggested in
the budget announcement that the requirement placed an unreasonable
burden on employers to prevent conduct which was outside of their
direct control. This provision very simply places an obligation
on an employer (who is best placed to bear responsibility for
protecting an employee from harassment whilst at work) to prevent
persistent harassment by third parties.[84]
It would only hold an employer legally responsible where s/he
knows that an employee has been harassed on two or more occasions
and fails to take reasonable steps to prevent further harassment.
This provision is precisely directed at circumstances which an
employer ought properly to be able to control. The above comment
in the budget announcement is therefore both misleading and disingenuous.
(c) Moratorium exempting micro-businesses and
start-ups from new domestic regulation for three years from 1
April 2011. This proposal, particularly in light of the downturn
in public sector employment which will be the necessary consequence
of the cuts, will mean the disapplication of any new rights (whether
required in order to comply with international treaty obligations
or otherwise) in the cases of a large percentage of the workforce.
More than 80% of private sector employees currently work in businesses
with ten or fewer employees. This could result, therefore, in
large swathes of the workforce being divested of or disentitled
to the benefit of important equality/employment rights.
(d) Review of employment law and regulation:
This includes proposals to restrict maternity and paternity leave
in a manner inconsistent with the European Parliament's interpretation
of the Pregnant Workers Directive. No analysis has been advanced
of the pro-social reasons for increasing maternity and paternity
leave in accordance with the European Parliament's view and all
that has been stated is that this will save UK businesses £2
billion per year. Again, the DLA questions the evidential basis
upon which this assumption has been made. It also points to the
absence of any analysis of the negative consequences for issues
such as the reduction of the gender-pay gap to which it must be
assumed the government only intends to pay lip service. The government's
stated intention to de-regulate and relieve businesses of the
"burden" of guaranteeing rights for its workers is very
difficult to reconcile with its stated commitment to equality
in its Equality Strategy.
(e) Repeal of right to request flexible working
to parents of 17 year olds which was to come into force in April
2011: As suggested in relation to the moratorium for small businesses
and the review of employment law, it is an intervention which
expressly deprioritises the advancement of equality of opportunity.
PROPOSALS FOR
REFORM OF
THE EQUALITY
AND HUMAN
RIGHTS COMMISSION
10. The membership of the DLA has not had the
opportunity to give sufficient and detailed consideration to the
proposals for reforming the Equality and Human Rights Commission.
However, in the context described above, and having regard to
the proposals to remove many of the EHRC's powers and duties,
the DLA regards the title of the consultation document, "Building
a Fairer Britain: Reform of the EHRC", as risible. The DLA
shares the concerns expressed in the EDF Memorandum, the SCOPE
Submissions and both sets of Submissions by Equanomics UK in this
connection. We consider that the proposed reforms are emasculating
and inconsistent with any commitment to securing equality. Further,
the DLA considers that the extent of the proposed reforms may
well place the UK government in breach of its EU Law obligation
to ensure that there exist designated bodies responsible for the
promotion of equal treatment of all persons without discrimination.[85]
11. We would make the following further initial
comments for the Committee's consideration:-
(a) The DLA is concerned that well-publicised
managerial and financial problems that have beset the EHRC in
its first years are being used as justification for sweeping proposals
which would limit its future independence and reduce its legal
competence and capacity to promote and enforce equality and human
rights.
(b) We are further concerned that in its proposals
the government appears, wrongly in our view, to regard equality
and human rights as separate matters, for example suggesting (paragraph
1.14) that narrowing the EHRC's equality duties will "enhance
its capacity to develop and deliver a programme to promote and
protect human rights." Equality is an important human right,
and increasingly the UK and European courts are applying human
rights principles in equality cases. We strongly agree that the
EHRC has and must retain important human rights functions, but
these will not be enhanced by limiting its equality functions.
(c) As the EDF suggests, the combined proposals
to remove EHRC advice and support functions should not be considered
in isolation. They would come on top of major cuts to legal aid,
loss of local authority funding of advice agencies and accompany
proposals to make it more difficult to bring discrimination claims
in employment tribunals. Discrimination cases are rarely simple
or straight forward. Research shows that already very few people
challenge discrimination; they prefer to give up their jobs. One
of the main reasons for this has been the patchy and fragile network
of legal support. By ending the EHRC legal grants programme, the
government will be closing possibly the last door to specialist
legal advice and help for discrimination cases.
PUBLIC SECTOR
EQUALITY DUTY—NEW
PROPOSALS FOR
SPECIFIC DUTIES
12. The DLA also endorses the position in the
EDF Memorandum in relation to the public sector equality duty
and is dismayed by the late proposals effectively to reduce the
specific duties to little more than nominal obligations for all
government departments, national public authorities and listed
English public authorities. In the circumstances, the DLA, like
Equanomics and the EDF, urges the government to take urgent steps
to ensure that that the EHRC publishes a statutory code of practice
giving clear guidance on the general duty contained in section149
of the Equality Act 2010 in the very near future.
March 2011
79 See "The Equality Strategy-Building a Fairer
Britain", GEO, December 2010, p.24. Back
80
See "Written Evidence submitted by SCOPE", March 2011;
Submission to the House of Commons Home Affairs Committee inquiry
into the "Equalities agenda of the Government", Equanomics
UK: 11 March 2011 ("Equanomics UK Submissions"). Back
81
See in particular the Equanomics UK Submissions at paragraphs
4-8. Back
82
See in particular R(Equal Opportunities Commission) v Secretary
of State for Trade and Industry [2007] I.C.R. 1234 at paragraphs
36-40. Back
83
See Equality Strategy, p.9 Back
84
See s.40 EA 2010. Back
85
See for example Article 13 of the Race Directive (Council Directive
2000/43/EC) and Article 12 of the Gender Goods and Services Directive
(Council Directive2004/113/EC).
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