Deregulation Bill

Written evidence submitted from The Equality and Diversity Forum (DB 07)

Introduction

The Equality and Diversity Forum (EDF) is a network of national organisations 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. Further information about our work is available at www.edf.org.uk and a list of our members is attached.

Our member organisations represent people who have any or all of the characteristics protected in the 2010 Equality Act and one of our key concerns is that each should have access to the same rights to access to justice regardless of their age, disability, gender and gender identity, race, religion or belief, and sexual orientation (unless there is a good reason why this is not appropriate).

Executive Summary

1. The EDF considers that it is important that regulations should serve a useful purpose and be both proportionate and effective. We can therefore see the value of considering whether there are any regulations that do not meet these standards.

2. The EDF is opposed to the inclusion of Clause 2 (which deals with Employment Tribunals power to make recommendations (Equality Act 2010, section 124)) which would remove a useful power that is not burdensome and has the potential to help employers to be more effective.

3. The EDF is concerned about Clauses 61-64 which introduces a new duty for regulators to have regard to promoting economic growth when they reach decisions that would itself create further burdens for some regulators.

Clause 2 – Employment Tribunal’s power to make recommendations

We are strongly opposed to this clause: even the Government appears to have acknowledged that there is no evidence that this tribunal power is a burden. Rather, it is a power that can only be exercised in relation to an employer who has breached the law and is intended to help prevent future breaches.

The power enabling Employment Tribunals to make ‘an appropriate recommendation’ to an employer as a possible remedy when the Employment Tribunal has made a finding of unlawful discrimination is a relatively new power. It applies to cases where the action complained of occurred after October 1st 2010. A consideration of the use and efficacy of this new provision ought to take into account the fact that it has only been available for use during significantly less than three years and so there has been little time in which it could even be deployed and only limited information about its impact.

It is striking that the Government said in its May 2012 consultation document, ‘Equality Act 2010 Consultation on reform of two enforcement provisions for discrimination cases’, that ‘we are unaware of any such recommendations have been made since the commencement of the Equality Act 2010’ [1] and yet propose to remove it. The recommendation to remove this power appears to have been made even though the Government has no evidence that it is a burden to anyone. Instead, they have argued that there ‘is no evidence, so far, to show that the extended power is necessary or that it is an appropriate or effective remedy’. [2] It is certainly rather early to evaluate the impact of the power but we think what evidence there is suggests it will help to improve employment practice and reduce the incidence of discrimination.

There is no evidence that the power is burdensome

We would draw your attention particularly to the following points:

· this provision is a discretionary provision – there is no obligation on any Employment Tribunal to use it’ and

· It is intended to prevent further occurrences of discrimination within an employer’s workforce.

The consultation impact analysis appears to suggest that this provision when operating as expected will affect 0-3% of employment tribunal cases, which they suggest is likely to be 17 cases a year and that these recommendations leading to changes in employer practices and policies may help to prevent further discrimination cases being brought. [3] If this estimate is correct, it is difficult to argue that the power will generate burdens. On the contrary, improving employer practices is likely to generate a net benefit by preventing further employment tribunal cases, even if there is a small outlay in training for managers etc.

Many tribunal cases result from poor human resource management practice so there is a public interest in improving human resource management particularly in the equality field. An employment case raising equality issues will be heard either by a panel of three (one of whom will be an employer’s representative) who will have huge experience of human resource practice or by a single very experienced judge. It is in the public interest that their insight into the shortcomings (if there be any) in the human resource management of an organisation is put to good use through a general recommendation where they judge this to be appropriate.

We note that the Government observed, ‘employers often make changes to their policies and practices, anyway, as a result of a tribunal finding, without the need for a recommendation’. [4] We cannot see that this is a good reason for depriving Tribunals of this useful tool designed to assist employers and trade unions to remove the continuing effects of structural and systemic discrimination in the workplace. The purpose of this power is to deal with those that don’t improve their practices in response to tribunal cases and to help focus those that would benefit from expert assistance.

The tribunal system is supported out of public funds. If a tribunal considers that systematic shortcomings in an employer’s practice have come to light it makes every sense that they should be able to make recommendations as to how they are put right. It may be said that to prohibit them from using their discretion in this way, as the government proposes to do, would be a waste of public resources.

Evidence of the value of the power

Contrary to the Government’s assertion that there is no evidence that this is an effective power there are already some cases where this power has been used. For example in 2011 it was used in:

· Crisp v Iceland Foods - ET/1604478/11 & ET/1600000/12 – the employment tribunal upheld a claim of direct disability discrimination and made a recommendation that the HR managers should receive training ‘relating specifically to the issue of mental health disability’.

· Stone v Ramsay Health Care UK Operations Ltd - ET/1400762/11 - a pregnancy discrimination case in which the employment tribunal recommended that the employer provide training for its managers and HR team on maternity rights.

In 2012 it was used more frequently: an Equal Opportunities Review survey records 19 occasions when tribunals used their power to make wider recommendations. These recommendations mainly concerned provision for training for managers, improvement of internal processes and record keeping. For example:

· Ncheke v Her Majesties Courts & Tribunals Service – ET/1201468/11 – a disability case where a disabled woman was denied a reasonable adjustment that should have been made for her. The ET ordered that within six months ‘line managers and human resources are to receive adequate training on understanding and implementing the Respondent’s disability leave policy and to ensure that the policy is properly communicated to employees as is appropriate in the circumstances’.

· Tantum v Travers Smith Braithwaite Services – ET/2203585/12 – a trainee solicitor was discriminated against in the selection procedure for a permanent post because she was pregnant. The ET recommended that:

i. Members of the senior staff should participate in discrimination training;

ii. Discrimination training should be monitored;

iii. There should be formal documentation so that there is a transparent process in deciding which trainees get positions, with feedback to trainees who are unsuccessful; and

iv. There should be a defined procedure for dealing with investigation of discrimination grievances.

When a recommendation is made it is to be expected that it will lead to better employment practice and prevent further cases of discrimination, with their associated costs. There is no evidence that it has been abused or in any other way misused.

Employment Tribunals are obliged to send copies of all discrimination cases to the Equality and Human Rights Commission (EHRC). They will then look at the cases where recommendations have been made and decide whether it is appropriate and proportionate to contact the employer and offer further assistance.

The EDF strongly urges the committee to remove clause 2.

Clauses 61-64 - new duty for regulators to have regard to promoting economic growth when they reach decisions

The Government is ostensibly keen to reduce regulatory burdens so it is difficult to understand why a new duty on regulators is being proposed. Regulators are already subject to the Hampton Principles which have been in place since 2005 were introduced as a result of a report on ‘Reducing administrative burdens: effective inspection and enforcement’. [5] These principles considered how to reduce unnecessary administration for businesses, without compromising the UK's regulatory regime and they are recognised as the standard with which regulators should comply. These provide that

‘Regulators should recognize that a key element of their activity will be to allow, or even encourage, economic progress and only to intervene when there is a clear case for protection’.

We would therefore question why any further provisions are needed.

We note that the Joint Committee on the Draft Deregulation Bill concluded at paras 104-5 that –

…an economic growth duty on regulators is welcome provided that safeguards are in place to ensure that the growth duty does not take precedence over regulation and that the overriding and principal objective of regulators remains the protection of the public interest…The Government should consider making this clear on the face of the Bill. [6]

Although minor amendments were subsequently made to the wording of these clauses none of them has addressed this problem.

We remain concerned that the promoting economic growth duty will compromise the independence of regulators. In the case of the EHRC, it could jeopardise the Commission’s UN accreditation as an A rated national human rights institution. We are also concerned about the position of other non-economic regulators whose remit encompasses equality or human rights, such as the Children’s Commissioners and the Information Commissioner.

Whilst we welcome the draft Guidance which says at section 2(2) –

The duty requires that economic growth is a factor to be taken into account alongside regulators’ other statutory duties.

· The duty does not set out how economic growth ranks against existing duties as this is a judgment only a regulator can and should make.

· The duty does not oblige the regulator to place a particular weight on growth. [7]

Nevertheless we consider that if this is the Government’s interpretation of this duty then it should be made clear on the face of the Bill.

Taken as a whole, clauses 61-64 would give Ministers considerable powers to interfere in how regulators created by Parliament do their jobs, with very limited parliamentary scrutiny of how Ministers would use these new powers. Some of the regulators likely to be affected by these clauses have functions of constitutional significance, such as protecting vulnerable individuals against abuse or intrusive uses of state power.

We note that other Parliaments have addressed this in a more balanced way. The Regulatory Reform (Scotland) Bill, section 4 is significantly different:

Regulators’ duty in respect of sustainable economic growth

(1) In exercising its regulatory functions, each regulator must contribute to achieving sustainable economic growth, except to the extent that it would be inconsistent with the exercise of those functions to do so (our italics).

If these clauses are retained in the Deregulation Bill we would suggest that a similar qualification would be both appropriate and necessary.

February 2014


Annex 1

Equality and Diversity Forum members

Action on Hearing Loss

Age UK

British Humanist Association

British Institute of Human Rights

Children’s Rights Alliance for England (CRAE)

Citizens Advice

Disability Rights UK

Discrimination Law Association

End Violence Against Women

Equality Challenge Unit

EREN – The English Regions Equality and Human Rights Network

Fawcett Society

Friends, Families and Travellers

Gender Identity Research and Education Society (GIRES)

JUSTICE

Law Centres Network

Mind

National AIDS Trust

Press for Change

Race on the Agenda (ROTA)

Refugee Council

RNIB

Runnymede Trust

Scope

Stonewall

The Age and Employment Network (TAEN)

Trades Union Congress (TUC)

UKREN (UK Race in Europe Network)

UNISON

Women’s Budget Group

Women’s Resource Centre

Other signatories/observer members

Inclusion London


[1] Consultation on reform of two enforcement provisions for discrimination cases, 2012, p51.

[2] Consultation on reform of two enforcement provisions for discrimination cases, 2012, p50.

[3] Consultation on reform of two enforcement provisions for discrimination cases, 2012, p48.

[4] Consultation on reform of two enforcement provisions for discrimination cases, 2012, para. 3.2.

[5] http://www.bis.gov.uk/brdo/resources/knowledge/better-regulation-principles

[6] http://www.publications.parliament.uk/pa/jt201314/jtselect/jtdraftdereg/101/101.pdf

[7] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/274552/14-554-growth-duty-draft-guidance.pdf

Prepared 5th March 2014