3. EQUALITY: KEY CONCEPTS
33. Part 2 of the Bill defines the key concepts
of UK anti-discrimination law. Clauses 4 to 12 set out the "protected
characteristics" which are protected by the subsequent anti-discrimination
provisions of the Bill such as "age", "race"
and "sex". Clauses 13 to 26 define the main types of
discriminatory conduct which are to be prohibited such as "direct
discrimination", "indirect discrimination" and
"harassment". These key concepts are then applied in
subsequent Parts of the Bill to form a unified framework of anti-discrimination
law. Part 2 of the Bill is therefore of central importance. For
the most part, it codifies existing legislation. However, it also
extends and clarifies the scope of protection offered by discrimination
law in some important respects.
Protected Characteristics
34. Clauses 4 to 12 list certain "protected
characteristics", which are different forms of individual
status or identity protected by the legislation. They are age,
disability, gender reassignment, marriage and civil partnership,
pregnancy and maternity, race, religion or belief, sex and sexual
orientation. Each of these characteristics is currently protected
under existing British anti-discrimination law. The Bill defines
and provides protection for the characteristics of race, religion
or belief, sex and sexual orientation in a more or less identical
manner to existing law. However, how the characteristics of age,
disability, gender reassignment, marriage and civil partnership
and pregnancy and maternity are defined and protected in the Bill
gives rise to several important human rights issues. The issue
of pregnancy discrimination in the context of education is dealt
with later: the other issues are dealt with immediately below.
AGE DISCRIMINATION
35. Clause 5 provides that age is a protected
characteristic. At present, age discrimination is only prohibited
in the sphere of employment and occupation as a result of the
Employment Equality (Age) Regulations 2006. However, the Bill
greatly extends protection against age discrimination. Firstly,
age is included as one of the protected characteristics covered
by the public sector equality duty.[55]
Secondly, the Bill also prohibits age discrimination in the provision
of goods and services and the performance of public functions,
as well as in the area of association and membership of clubs.
This extension of protection is however subject to a very wide-ranging
power conferred upon Ministers by Clause 192 of the Bill to make
orders providing for exceptions to the general prohibition on
age discrimination outside of the area of employment and occupation.[56]
36. In June 2009, the Government published a
consultation paper, Ending Age Discrimination in Services and
Public Functions, in which it sought views on what exceptions
should be introduced to the general ban on age discrimination.[57]
The consultation concentrated in particular upon what exceptions
may be necessary in the areas of health and social care, financial
services and other areas such as travel concessions and group
holidays for particular ages. In her written evidence to us, the
Solicitor-General indicated that a further consultation will take
place on the draft orders that will be prepared setting out these
exceptions if the Bill becomes law, with the aim of bringing into
force the ban on age discrimination together with any orders providing
for exceptions to this ban by 2012.[58]
She also attempted to justify the wide-ranging powers conferred
on Ministers by Clause 192 as reflecting the fact that:
[F]raming the exceptions for age across all goods,
facilities, services and public functions is challenging and complex.
It is vital to get this right and to give service providers time
to prepare to implement the ban.[59]
37. We welcome the inclusion of age within
the scope of the public sector equality duty, along with the general
prohibition of age discrimination in the areas of association,
the provision of services and the performance of public functions.
Age discrimination constitutes an unjustified denial of the right
to equality and remains a serious problem in British society.
The prohibition of age discrimination in service provision and
the performance of public functions will help ensure that all
age groups enjoy equality of respect in how they are treated by
service providers and those performing public functions.
38. We also recognise that there must be exceptions
to the ban on age discrimination in certain areas, and in particular
when it comes to the provision of special services and facilities
to older and younger persons, such as travel concessions and group
holidays. However, we are concerned that the Government has chosen
to introduce these exceptions through secondary legislation and
the use of the very wide-ranging powers conferred upon Ministers
by Clause 192. The scope of these exceptions should be the subject
of parliamentary debate and set out in primary legislation and
should be carefully tailored and convincingly justified.
39. The Bill also provides more limited protection
for age discrimination than for many of the other grounds in other
areas. Clause 31 provides that age discrimination in the disposal
and management of premises is not prohibited. Clause 81 provides
that age discrimination in schools is also not prohibited. Schedule
9(8) provides that employers will still be able to maintain a
mandatory retirement age. These limits on the scope of protection
against age discrimination are examined in detail below.
40. Further, children receive limited protection
against age discrimination under the Bill. Clause 27(1)(a) provides
that protection against age discrimination in the provision of
goods and services and in the performance of public functions
does not apply to those under the age of 18. Children are also
excluded in part from the scope of the public sector equality
duty: Schedule 18(1) provides that the provision of education,
accommodation, benefits, facilities and services in schools and
children's homes is not subject to the requirements of the positive
duty. During the course of our inquiry into Children's Rights,
we received evidence from a number of witnesses who expressed
concern that children and young people would not be protected
from age discrimination in the provision of goods, facilities
and services.[60]
41. A number of organisations, including 11 Million
(Children's Commissioner),[61]
Young Equals,[62] Children's
Rights Alliance for England,[63]
the Equality and Human Rights Commission,[64]
Liberty[65] and Unison,[66]
have expressed concern in their evidence to us that the exclusion
of children from the scope of the general prohibition on age discrimination
in the provision of services and the performance of public functions
constitutes a significant gap in protection against discrimination.
Young Equals suggest that the combined effect of excluding children
from full age discrimination protection[67]
and excluding schools and children's homes from the public sector
equality duty[68] significantly
weakens the legislation.
42. The Solicitor-General told us that the Government
has given "careful thought" to age discrimination against
children in the provision of services and the performance of public
functions but has concluded that:
Discrimination law would not be an effective,
appropriate or helpful way of tackling the problems experienced
by children and supporting them in their upbringing, and could
have significant negative consequences
the examples of
such matters which have been provided to the Government are generally
not issues which could be dealt with effectively through age discrimination
law. The Government wants to protect special and tailored services
for children. Extensions of the age discrimination ban outside
the workplace to children could render any service aimed at children,
or particular groups of children, vulnerable to challenge under
discrimination law.[69]
43. Responding to an amendment on this issue
in the PBC, the Solicitor-General highlighted the need to protect
the provision of age-specific services for children from legal
challenge. However, the EHRC has suggested that it would be possible
to both prohibit discrimination against children in the provision
of services and public functions and legitimately continue to
provide child-specific services by including a justification limitation
for discrimination.[70]
In Australia, the prohibition on age discrimination contained
in the federal Age Discrimination Act 2004 applies to children
under 18, subject to certain clearly defined exemptions relating
to education and activities carried out in compliance with a prescribed
list of statutes (for example, family law, employment programmes,
electoral law and the classification of publications, films and
computer games). To our understanding, this law has generated
little or no difficulty for service providers.[71]
44. The total absence of protection against
age discrimination for those under 18 in service provision and
the limited protection in relation to the performance of public
functions means that children who are subject to unjustified discrimination
are left with little or no legal protection. This may prevent
children enjoying full protection of their rights as set out in
the UN Convention on the Rights of the Child (UNCRC).
45. In its most recent Concluding Observations
on the UK's compliance with the UNCRC, the UN Committee referred
to the forthcoming Equality Bill and the opportunity it presented
to mainstream children's right to non-discrimination into UK anti-discrimination
law. It recommended that the UK take all necessary measures to
ensure that cases of discrimination against children in all sectors
of society are addressed effectively.[72]
The Bill represents an opportunity to incorporate fully children's
protection from unjustified discrimination into UK law. In our
view, the provisions of Clause 27, which have the effect of depriving
children of any rights under the discrimination legislation in
the fields of service provision and the performance of public
functions, are unnecessarily sweeping and extensive. We accept
there are many circumstances in which it is appropriate to treat
adults and children differently and to provide special and tailored
services directed at children of particular ages. We share the
Government's concern that the legislative prohibition of age discrimination
should not call into question the legality of legitimate differences
in treatment as between adults and children and between children
of different ages. However, the use of age distinctions can be
objectively justified in anti-discrimination law, as recognised
both in current legislation and in the Bill. Most of the distinctions
that exist between the treatment of adults and children, or between
children of different ages, are clearly capable of satisfying
this test of objective justification and are highly unlikely to
attract frivolous legal challenges.
46. The Government has stated that it intends
to use secondary legislation to define when it may be legitimate
to treat persons over the age of 18 differently on the grounds
of age. We consider that the situation of children is no different
and that exceptions to the general prohibition on age discrimination
could also be made as required to cover age distinctions where
children are involved.
47. We also consider that the public sector
equality duty should apply to how children are treated in schools
and children's homes. The current exclusion of the provision of
education, accommodation, benefits, facilities and services in
schools and children's homes from the scope of the duty as set
out in Schedule 18(1) is, in our view, unnecessary. It is important
that the rights of children to be free from discrimination and
unequal treatment, as recognised by the UNCRC, are protected and
that public authorities give due regard as to how to exercise
their public functions with this objective in mind. However, the
scheme of the public sector equality duty is sufficiently flexible
to ensure that public authorities continue to be able to treat
children differently or make special provision for children of
particular ages when this is justified.
THE DEFINITION OF DISABILITY
48. Clause 6, taken together with Schedule 1,
defines who is to be considered as having the protected characteristic
of disability and is a disabled person for the purposes of the
Bill, and proposes to replace similar provisions in the Disability
Discrimination Act 1995 ('DDA'). The definition of disability
is an important "control device": the Bill follows the
approach adopted in the DDA in providing that only those who are
disabled persons for the purposes of the legislation may bring
a claim for disability discrimination. The Bill defines who is
a disabled person by reference to whether they have a physical
or mental impairment which "has a substantial and long-term
adverse effect on [that person's] ability to carry out normal
day-to-day activities". Schedule 1 clarifies this definition
by providing that the effect of an impairment will be long-term
if it has lasted or is likely to last "for at least 12 months"
or "for the rest of the life of the person affected",[73]
and that if an impairment ceases to have a substantial adverse
effect on a person's ability to carry out normal day-to-day activities,
"it is to be treated as continuing to have that effect if
that effect is likely to recur".[74]
49. These provisions of the Bill substantially
re-enact the definition of disability contained in the DDA. However,
the Bill clarifies the definition and extends protection against
discrimination by removing the restrictive list of "capacities"
currently set out in Schedule 1 of the DDA, which serves as an
aid in defining what are "normal day-to-day activities".
The Government has taken the view that this list constituted an
"unnecessary extra barrier to disabled people taking cases
in courts and tribunals".[75]
We welcome the deletion of the list of "capacities"
from the definition of disability, which will clarify the law
and make it easier for claimants to demonstrate that they are
"disabled" for the purposes of the legislation.
50. The revised definition of disability set
out in Clause 6 has nevertheless attracted some criticism from
the EHRC, Mind, the Disability Charities Consortium and other
groups for adhering to the "medical model" of disability.
The definition focuses upon the "medical" nature of
the impairment in question and the extent to which it affects
a person's ability to perform certain functions. Satisfying this
test can be difficult and can prove a major obstacle to potential
claimants. Both the Disability Rights Commission (prior to its
dissolution) and the Royal College of Psychiatrists have noted
that persons with mental health problems who wish to bring claims
of disability discrimination are particularly adversely affected
by a medicalised definition.[76]
Similar concerns were expressed by the Disability Charities Consortium
and Mind in their written evidence to us.[77]
The Royal College of Psychiatrists has highlighted the particular
problems faced by individuals suffering from depression, a typically
severe mental impairment which nevertheless is often of relatively
short duration. The requirement in the DDA[78]
that a disability be "long-term" denies protection against
unjustified discrimination on the basis of their disability to
people suffering from depression. Mind note that they regularly
have to advise employees dismissed because of "mental breakdowns"
but who are well enough to return to work after a few months that
they have no case under the DDA on account of the "long-term"
requirement in the definition of disability.[79]
51. During our inquiry into the human rights
of adults with learning disabilities, A Life Like Any Other?,
some witnesses recommended that a social model of disability be
adopted.[80] Individuals
can be caught in the trap of being "socially" classified
as disabled without meeting the "medical" definition
of disability. In their evidence to us on the Bill, the EHRC suggested
that the definition of disability, and in particular the requirement
that an impairment must have both a substantial and long-term
adverse effect on day-to-day functioning, is unduly limited and
generates "fruitless litigation and legal uncertainty".
In addition, it noted that the definition of disability set out
in Clause 6 is "significantly narrower" than the "social
model" of disability set out in the UNCRPD, which defines
disability in terms of whether the person with an impairment experiences
external "social" environmental or attitudinal barriers
which "hinder" their full and effective participation
in society on an equal basis with others.[81]
Other witnesses agreed.[82]
Mind suggested that the "medical" definition gives rise
to unjustifiable hierarchies between different persons with disabilities,
while a "social model" definition of disability would
shift the "focus of attention from the severity of the medical
condition to whether discrimination had occurred", providing
more effective protection for the human rights of persons with
disabilities.[83]
52. In her written evidence, the Solicitor-General
set out the views of the Government on the definition of disability
and the issue of the "social model":
The Government considers that the starting point
for protection from disability discrimination must be an acknowledgment
that the disabled person has an impairment of some kind. Consequently,
it has ensured that the Bill has a hybrid approach which takes
account of the social model. The duty to make reasonable adjustments
is specifically aimed at overcoming the disabling barriers that
people with impairments face in society.
In developing proposals for the Equality Bill,
the Government did consider the merits of a social model approach,
but it concluded that it would be contrary to the aim of the legislation,
which is to protect those people who have a disability in the
generally accepted sense, that is to say, people who have a long-term
or permanent condition.[84]
53. Amendments were tabled in the PBC to delete
the requirement that a disability be "long term", clarify
the definition of disability and to bring individuals who had
suffered serious depression of 6 months duration within the last
5 years within this definition. In response, the Solicitor-General
stated that there was no real need to change the existing legislative
definition, on the basis that the current wording adopted a consistent
approach in respect of different types of impairments and struck
the right balance between protecting the human rights of persons
with disabilities and ensuring that excessive obligations were
not imposed upon employers to accommodate individuals with short-term
impairments.[85]
54. We consider that it is important to have
a clear and workable definition of disability in the Bill, which
protects those who are genuinely disabled without extending the
definition of disability too far. We concur with the view previously
expressed by the House of Commons Work and Pensions Committee
that there are strong arguments for adopting a definition of disability
in the Bill which is more in tune with the "social model"
of disability set out in the UN Convention on the Rights of Persons
with Disabilities,[86]
which the UK Government recently ratified. It would also reflect
the real life experiences of many disabled people, who may face
discrimination from employers and service providers on account
of their impairments even when they are insufficiently "disabled"
to satisfy the medical-centred tests set out in existing UK legislation.
55. In July 2006, the Disability Rights Commission
proposed that the existing definition of disability set out in
the DDA should be altered to give protection from discrimination
to everyone who has (or has had or is perceived to have) an impairment,
without requiring the effects of that impairment to be substantial
or long-term. It suggested that this new definition would bring
clear benefits, including producing a simpler, more certain approach
for identifying who has protection, providing better access to
justice and ensuring that the focus was placed upon the fairness
and reasonableness of employers and service providers rather than
on the medical condition of the individual. In order to bring
the UK definition closer to the "social model" of disability
as reflected in the UN standard, both the EHRC and the Disability
Charities Consortium recommend the deletion of the requirement
that a disability be "long-term" in nature.[87]
These arguments have considerable force. We recommend that
the Government give serious consideration to this proposal. At
a minimum, we recommend that the requirement contained in the
current definition of disability that the effects of an impairment
be "long term" in nature should be removed. There is
little risk that the adoption of a definition of disability that
is closer to the "social model" will result in abuse
and the trivialisation of the status of being disabled. The justification
defence to disability discrimination claims, the "substantial
disadvantage" threshold which must be crossed before a claim
for reasonable adjustment can be made, and the "reasonableness"
requirement itself all provide protection against the potential
for abuse and will protect employers against a wide expansion
of liability.
GENDER REASSIGNMENT
56. Clause 7 defines who is considered to have
the protected characteristic of undergoing a process of gender
reassignment. It will replace similar provisions in the Sex Discrimination
Act 1975 (SDA). However, the Bill extends protection against discrimination
by no longer requiring a person to be undergoing a process of
gender reassignment under medical supervision in order to come
within the scope of protection, as is currently the case under
the SDA. Clause 7 now provides that if the person "is proposing
to undergo, is undergoing or has undergone a process (or part
of a process)" of gender reassignment that will be sufficient.
This extends protection to individuals who may have commenced
the process of gender reassignment, or who have indicated an intention
to undergo this process, but who have not yet come under medical
supervision.
57. Press for Change (PFC) and the Equality Network
have nevertheless expressed concern that Clause 7 is unclear and
will leave many transsexual people unprotected.[88]
In particular, both organisations argue that Clause 7 will exclude
transsexual people who do not display any intention to undergo
a medical process of gender reassignment, but who nevertheless
choose to adopt a different gender identity. In addition, children
under 16 who display gender variance may also be left unprotected,
as may inter-sex persons. Both Press for Change and the Equality
Network suggest that the concept of "gender reassignment"
should be replaced by "gender identity", a term used
in official statements produced under the auspices of the United
Nations and Council of Europe. The Equality and Diversity Forum
(EDF) has given evidence to similar effect.[89]
58. In the PBC, the Solicitor-General responded
to concerns about the proposed definition by noting that discrimination
which was based upon acts or behaviour by the transsexual person
in question which might "be a precursor to an individual
proposing to undergo gender reassignment" would be covered
by the prohibition on discrimination based on perception implicitly
set out in Clause 13.[90]
She also suggested that there was a need for a "definite
decision point, at which the person's protected characteristic
would immediately come into being".[91]
In addition, in her written evidence, the Solicitor-General emphasised
that the process of gender reassignment covered by the Bill:
need not involve any form of medical intervention;
rather it is a personal process and can involve changes in dress
and mode of living. The definition will cover those who are proposing
to reassign their sex but have not taken any steps, medical or
otherwise, to do so.[92]
59. In our view, protection currently offered
by existing legislation is unduly restrictive as it denies protection
to those not subject to medical supervision. We therefore welcome
the expanded human rights protection offered to persons undergoing
a process of gender reassignment. However, we are concerned that
the new definition may be interpreted in an unduly restrictive
manner, as a transsexual person will only be protected from discrimination
if he or she can demonstrate an intention to undergo a process
of gender reassignment. This may leave individuals who cannot
yet undergo a process of reassignment, such as children under
the age of 16, or those for whom such a process would be of little
or no relevance, such as inter-sex persons or those living in
a state of gender variance, without protection. Reliance upon
the prohibition of discrimination on the basis of perception to
close these gaps is unsatisfactory, as this offers at best an
indirect and less than clear level of protection. We recommend
that the term "gender identity" replace "gender
reassignment" as the relevant protected characteristic. This
would offer wider protection against the prejudice and stereotyping
which continue to affect many transsexual people adversely. There
is little risk that protecting 'gender identity' will result in
abuses, frivolous cases or the trivialisation of discrimination
law, as protection will still be linked to transsexual status,
rather than to appearance or conduct.
60. Amendments NC12(3) to (5), tabled by Lynne
Featherstone MP and Dr Evan Harris MP, would replace the definition
of the protected characteristic of gender reassignment with an
expanded definition of "gender identity". We consider
that these amendments deserve serious consideration.
MARRIAGE/CIVIL PARTNERSHIP
61. Clause 8 defines the protected characteristic
of marriage and civil partnership replacing very similar provisions
in the Sex Discrimination Act which currently provides that a
person has the protected characteristic of marriage and civil
partnership only if she or he is actually married or in a civil
partnership. Discrimination legislation will not protect people
who are in, or have been in, significant and enduring personal
cohabiting relationships other than marriage or civil partnership
who suffer discrimination or harassment as a result.
62. Nor will the legislation cover people who
are discriminated against or harassed by reason of not being in
a marriage or civil partnership. Such people are protected under
discrimination law in Ireland, certain states in Australia and
elsewhere.[93] In addition,
Clause 13(4) provides that direct discrimination against those
who are not actually married or in a civil partnership is not
prohibited under the Bill. Therefore, discrimination on the basis
of association with married persons or those in a civil partnership,
or on the basis of perceived marital or partnership status, is
not prohibited.
63. Liberty and the EHRC suggest that it would
be more compatible with human rights principles not to deny protection
against discrimination on the basis of marital status to those
who cohabit, those who are divorced or widowed.[94]
Liberty cites the decision of the House of Lords in Re P[95]
as evidence that discrimination based on marital status may not
comply with the human right to equality,[96]
an argument echoed by the EHRC.[97]
64. In the PBC, Lynne Featherstone MP moved an
amendment to Clause 8 which would have extended protection against
discrimination to single and co-habiting people. Responding, the
Solicitor-General highlighted the difficulty of defining when
persons could to be said to be a co-habiting couple and also noted
the lack of evidence that existed as to whether discrimination
on the basis of marital status constituted a significant social
problem. In her written evidence to us, the Solicitor-General
made a similar point:
While responses to the 2007 consultation paper
on the Bill suggested that there may be some discrimination on
the grounds of marriage and civil partnership, they did not provide
any evidence that unmarried people and those in other forms of
relationships are discriminated against
The Government therefore
considers that extension of protection beyond marriage and civil
partnership is not warranted on current evidence.[98]
65. We consider that good arguments exist
to prohibit discrimination against individuals on the basis that
they are not married or in a civil partnership, including cohabiting
couples in enduring relationships. This would ensure symmetry
of protection for those within or outside such relationships,
and protect individuals against forms of discrimination on the
grounds of marital status which have existed in the past and may
re-emerge again, such as the practice of discriminating against
unmarried persons in promotion processes and pay awards.
66. A separate issue that arises in respect of
this protected characteristic is that the degree of protection
conferred by the Bill upon couples in a marriage or civil partnership
is very limited, being largely confined to protection against
direct and indirect discrimination in the sphere of employment
and occupation. Various provisions of the Bill provide that marital/civil
partnership status is excluded from protection against harassment,[99]
discrimination in the provision of goods and services,[100]
discrimination in the disposal, management and occupation of premises,[101]
discrimination in education,[102]
and discrimination in membership of associations. Liberty told
us that this omission means that it will be lawful to discriminate
against a person on the basis that they are married or in a civil
partnership in many different fields of social activity and suggest
that there is no reason why the Bill cannot prohibit discrimination
against married couples or those in civil partnerships in these
areas.[103]
67. In her written evidence, the Solicitor-General
set out the reasoning of the Government as to why it is appropriate
to confine protection to married couples and those in a civil
partnership to certain areas only:
In the 2007 consultation paper on proposals for
the Bill, 'A Framework for Fairness', the Government proposed
to remove protection for married persons and civil partners as
it was no longer required for its original purpose, which was
to protect women who were required to resign from employment on
marriage.
Responses to the consultation were equivocal
on whether to keep or remove the protection. However, some responses
did suggest that there were still work-related instances of discrimination
on the basis of marriage or civil partnership. Some tribunal cases
also support this view as they show that there are instances of
discrimination where employers have a blanket policy of not allowing
married people to work together and these need to be challenged.
Hence, the Government considers that removing this protection
may run the risk of discrimination against married people re-emerging.
Responses to the consultation did not provide
any evidence to show that extension of protection was warranted
beyond the current range of protection. As one of the principles
in the development of the Equality Bill was not to legislate where
there is no evidence of need, the Government decided not to expand
protection further than the current provision. While the original
reasons for introducing marriage protection in employment may
no longer exist, we consider continued protection in this discrete
area is warranted.[104]
68. We recommend that the prohibition of discrimination
against married persons or persons in a civil partnership should
be extended to cover harassment, discrimination in the provision
of goods and services, premises, education and membership of associations.
This would ensure comprehensive protection against forms of discrimination
on the basis of marital status that may not have been highlighted
by the parties who responded to the consultation exercise but
may nevertheless exist, or which may be easier to challenge using
the prohibition on discrimination based upon the protected characteristic
of being married or in a civil partnership, rather than other
characteristics such as sex or sexual orientation.
OTHER PROTECTED CHARACTERISTICS
69. Legislation in Northern Ireland prohibits discrimination based on political opinion: legislation in some other Commonwealth and European states protects individuals against discrimination based on characteristics such as genetic predisposition, spent criminal convictions, or on socio-economic status, or on caste status. The Bill does not cover these forms of discrimination. We therefore asked the Minister whether the Government had considered extending protection against discrimination to cover discrimination based on such characteristics and, if so, why it had rejected their inclusion. The Solicitor-General provided a detailed response to our question. In summary, she told us that::
- The Government had consulted on whether to include
genetic predisposition in the Bill, that there was no clear
evidence to suggest that discrimination was occurring in this
area, but that it would keep the situation under review;
- Domestic law is already clear on when spent
convictions can and cannot be disclosed and there is no need
for specific provision within the Bill;
- The Government considered extending protection
to include socio-economic status but concluded that "it
would be very hard to define socio-economic disadvantage in a
way that could be used to give individual rights", that this
would not be the best way to address the problem and that the
Bill introduced a measure designed to address the underlying socio-economic
disadvantage (the socio-economic duty);
- Excluding protection on the basis of political
opinion has not, in the Government's view, caused problems
in Great Britain, unlike in Northern Ireland;
- There is insufficient evidence of a problem of
caste discrimination in the UK which could be resolved
by legislation in the fields that anti-discrimination law covers,
although the Government is monitoring the situation.[105]
70. Some witnesses have suggested to us that,
contrary to the Government's assertion, caste discrimination is
a problem in the UK which legislation should prohibit.[106]
We therefore asked the Solicitor-General about this in oral evidence.
She reiterated that the Government had taken "significant
steps" to look for caste discrimination, but that there is
"no inherent problem" which could be dealt with within
the categories covered by the Bill.[107]
However, it is strongly arguable that caste discrimination is
akin to racial discrimination, and we are concerned that this
is a problem which may be hidden but real within some ethnic minority
groups.
71. In their evidence to the PBC, the EHRC noted
that it has a statutory duty to monitor the law and that, in its
view, the vast majority of situations of discrimination would
be captured by the nine existing protected characteristics of
the Bill. However, it suggested that one area of potential difficulty
for the future was around genetics and discrimination.[108]
72. We welcome the Government's commitment
to monitoring the position of genetic predisposition and caste
to see whether there is a need in the future to specify them as
protected characteristics. We urge the Government proactively
and regularly to review the situation and to bring forward legislation
should there be evidence that further protection in these areas
is required. This is an area to which we may wish to return at
a later date.
The Different Forms of Discriminatory
Behaviour
73. Chapter 2 of Part 2 defines the main forms
of conduct that are prohibited by subsequent provisions of the
Bill, namely direct and indirect discrimination, harassment and
victimisation. At present, different definitions of these forms
of conduct are applied in different circumstances. This makes
existing discrimination law unnecessarily complex. However, the
Bill now sets out standardised and clarified definitions of these
different forms of discriminatory conduct, ensuring in particular
that the higher level of protection currently offered against
indirect discrimination and harassment in those areas of law where
EU standards are relevant will apply across the full ambit of
anti-discrimination law. This will remove many of the artificial
distinctions that currently exist in the UK's anti-discrimination
legislation.[109]
74. The Bill also strengthens protection against
discrimination by removing certain technical barriers to recovery
that exist in the current legislative framework. In particular,
Clause 25 extends protection against victimisation by removing
the requirement that a claimant show that they were treated in
a less favourable manner than another person would have been in
a similar situation - the "comparator" requirement.
Amendments made to the Bill during PBC have clarified its provisions
in respect of pregnancy discrimination and cured the serious defects
contained in the original text of the Bill, in particular the
apparent introduction of a defence of "reasonableness".[110]
75. We welcome the provisions of the Bill
which standardise and clarify the definitions of direct discrimination,
indirect discrimination, harassment and victimisation and harmonisation.
This should make discrimination law more accessible and easier
to understand and apply. We also welcome the levelling up of protection
against indirect discrimination and harassment and the removal
of the "comparator requirement" in victimisation cases.
We are pleased to note the amendments made to the Bill during
PBC which remedied the defective provisions relating to pregnancy
discrimination which were contained in its original text.
76. However, a number of human rights issues
arise in respect of certain aspects of how the different forms
of discrimination are defined and are discussed below.
THE DEFINITION OF DIRECT DISCRIMINATION
77. The standard definition of direct discrimination
set out in Clause 13 states that "person (A) discriminates
against another (B) if, because of a protected characteristic,
A treats B less favourably than A treats or would treat others".
The definition in Clause 13 replaces the phrase "on grounds
of" used in previous definitions of direct discrimination
with the phrase "because of". The Explanatory Notes
explain the rationale for this change:
This clause uses the words 'because of' where
the current legislation contains various definitions using the
words 'on grounds of'. This change in wording does not change
the legal meaning of the definition, but rather is designed to
make it more accessible to the ordinary user of the Bill.[111]
78. Direct discrimination is a key concept in
discrimination law, but some concern has been expressed as to
the use of the phrase "because of" in this definition.
Discrimination law experts such as Michael Rubenstein have suggested
that replacement of the phrase "on grounds of" with
the new phrase "because of" may cause confusion and
undermine the existing well-established case-law on the definition
of direct discrimination.[112]
The Equality and Diversity Forum (EDF) have also raised similar
concerns.[113] The
House of Lords in the cases of James v Eastleigh Borough Council[114]
and Shamoon v Chief Constable of the RUC[115]
interpreted the phrase "on grounds of" as covering situations
where a discriminator would not have subjected an individual to
less favourable treatment "but for" the protected characteristic
in question, and also where a characteristic was the "reason
why" the less favourable treatment took place. In other words,
the phrase "on grounds of" has been interpreted as covering
not just situations where a discriminator deliberately treated
a person in a less favourable manner because of their gender,
race or another protected characteristic, but also situations
where criteria based upon protected characteristics formed the
basis or part of the basis of the decision to treat an individual
in a less favourable manner. As Lord Goff noted in James v
Eastleigh Borough Council, this has the advantage of avoiding
"complicated questions relating to concepts such as intention,
motive, reason or purpose
"[116]
However, Michael Rubenstein suggests that the replacement of "on
grounds of" with the phrase "because of" may encourage
courts and tribunals to place undue emphasis on the subjective
intent, purpose or motive of the alleged discriminator rather
than focusing on the objective rationale for the actions in question,
as required by the existing case-law.[117]
The new phrasing may also confuse the question of causation.[118]
79. In the PBC, an amendment was tabled by Mark
Harper MP to replace "because of" with "on grounds
of".[119] In response,
the Solicitor-General stated that both phrases were "synonymous"
and equally indicative of causation, but the use of "because
of" would make the legislation more accessible to non-specialists.[120]
She stated "there is no change in the meaning from the change
of words".[121]
80. We consider that the previously used test
in direct discrimination of "on the grounds of" has
acquired a clear and definite interpretation through case-law.
The Government is to be applauded for its concern for attempting
to ensure the definition of direct discrimination is phrased in
accessible terms. However, little is gained by replacing "on
grounds of" with "because of". "On grounds
of" is both readily comprehensible and has the advantage
of being a well-established term of art. Replacing this phrase
with "because of" risks the emergence of alternative
interpretations and may undermine a clear and well-established
legal position which ensures rigorous and clear protection against
direct discrimination. We consider that it is strongly arguable
that the definition should be amended accordingly.
DISCRIMINATION ON THE BASIS OF ASSOCIATION
AND PERCEPTION
81. The Explanatory Notes explain that the new
definition of direct discrimination in Clause 13 is intended to
be "broad enough to cover cases where the less favourable
treatment is because of the victim's association with someone
who has that characteristic (for example, is disabled), or because
the victim is wrongly thought to have it (for example, a particular
religious belief)".[122]
These forms of discrimination are often referred to as discrimination
based on association and perception.
82. Previously, discrimination based on association
with someone of a particular age or having a particular disability
was not explicitly prohibited by UK discrimination law. Discrimination
on the basis that someone was perceived to be disabled was also
not prohibited.[123]
However, in the recent case of Coleman v Attridge Law,[124]
the European Court of Justice interpreted Directive 2000/78/EC
as meaning that the prohibition of direct discrimination laid
down by the Directive "is not limited only to persons who
are themselves disabled" and also requires member states
to prohibit discrimination in the field of employment and occupation
which is based on association with a person with a disability.
83. The Minister for Equality, the Rt Hon Harriet
Harman QC MP, announced on 2nd April 2009 that the
Equality Bill would prohibit discrimination which is based upon
association with a person who has any of the protected characteristics
set out in the Bill, or on the basis that a person is perceived
to possess any such characteristics.[125]
As the Explanatory Notes make clear, Clause 13 is drafted so as
to give effect to this goal. However, Clause 13 does not expressly
prohibit discrimination based on association or perception: instead,
it contains a general prohibition of less favourable treatment
inflicted by A on B "because of" a protected characteristic.
The Government considers that this wording is sufficient to cover
discrimination based on association and perception, as the prohibition
of direct discrimination in Clause 13 is not just confined to
situations where individuals themselves possess a protected characteristic
(except in the case of the characteristic of marriage and civil
partnership), but also covers situations where discrimination
against an individual takes place "because of" a protected
characteristic.[126]
84. However, the Discrimination Law Association,
Carers UK, the Equality Commission for Northern Ireland and the
EHRC have all expressed support for the inclusion of an express
prohibition on discrimination on the basis of association and
perception.[127] In
the PBC, an amendment to this effect was tabled by Dr Evan Harris
MP. In response, the Solicitor-General highlighted the concern
that specifying that discrimination on the basis of association
and perception was banned could result in a narrower interpretation
being given to the general prohibition on direct discrimination:
[T]he danger is that, if we name something in
a section of a statute, by implication we exclude or devalue things
that are not named.[128]
85. In her written evidence to us, the Solicitor-General
set out the Government's reasoning in detail:
It is well established and well understood that
the definitions of direct discrimination in current legislation
using the words 'on grounds of' the relevant protected characteristic
(i.e. race, religion or belief and sexual orientation) are broad
enough to cover cases where the less favourable treatment is because
of the victim's association with someone who has that characteristic
(as said by Lord Simon in Race Relations Board v Applin [1975]
AC 259, at 289), or because the victim is wrongly thought to have
it (as said by Lord Fraser in Mandla v Dowell Lee [1983]
2 AC 548, at 563). As the words 'because of' a protected characteristic
used in clause 13 do not change the legal meaning of the definition,
there is therefore no need to explicitly prohibit discrimination
on the basis of association and perception on the face of the
Bill. To do that would also run the risk of excluding other cases
which the courts have held are covered by the words 'on grounds
of' (see, for example, Showboat Entertainment Centre Ltd v
Owens [1984] ICR 65 and English v Thomas Sanderson Ltd
[2009] ICR 543) and future cases which the Government would want
the equally broad and flexible formulation 'because of' to extend
to.[129]
86. In our view, the extension of protection
against discrimination based on association and perception across
all the protected characteristics will further the protection
of human rights. In particular, it will ensure greater protection
against discrimination for individuals with caring responsibilities
for disabled persons, children and older persons. It will also
provide important protection for individuals who might be perceived
to be involved in a process of gender reassignment, or to be of
a different gender, sexual orientation, age, religion or ethnicity
than their own, or who associate with friends and acquaintances
who possess a protected characteristic.
87. However, we are concerned as to how the
text of the Bill makes provision for this extension of protection.
If the interpretation given by the UK courts to the phrase "on
grounds of" in cases such as Showboat is carried across
and applied to the new phrase "because of" in the definition
of direct discrimination in Clause 13, as the Government has suggested
will happen, then the Bill will achieve the Government's goal
of prohibiting discrimination based on association and perception.
However, the lack of an explicit prohibition of discrimination
based on association and perception on the face of the Bill makes
the legislation less clear and, in the Government's own words,
less "accessible to non-specialists" and less "accessible
to the ordinary users of the Bill". While the current formulation
in Clause 13 is elegant, the absence of such an explicit prohibition
also risks leaving victims unaware of their legal rights and may
generate uncertainty among employers and service providers. The
insertion of express provisions prohibiting discrimination based
on association and perception would clarify the legal position
and make the Bill more comprehensible. This could be accompanied
by guidance to make clear that the inclusion of this prohibition
should not be interpreted as limiting the scope and range of the
general prohibition of direct discrimination contained in Clause
13. This could meet the Government's concerns about inserting
such an explicit provision into the Bill and contribute towards
clarifying its scope and content. The extension of protection
against association and perception marks a considerable expansion
of human rights protection: in our view, it is important that
its existence is clearly indicated on the face of the Bill.
We would support an amendment that would have this effect.
Discrimination Against Carers
88. By extending protection against discrimination
based upon association, the Bill will ensure greater protection
for individuals with caring responsibilities for disabled persons,
children and older persons. However, discrimination law expert
Michael Rubenstein has suggested that such an extension will only
enable a carer to bring a discrimination claim where an employer
or service provider treats the carer less favourably on the basis
of a protected characteristic of the person being cared for, such
as if a carer is subject to less favourable treatment on the grounds
that the person being cared for is disabled, as in the Coleman
case,[130] or of
a particular age.[131]
In contrast, if an employer subjects all employees taking time
off for caring reasons to less favourable treatment, regardless
of the characteristics of the person being cared for, this would
appear not to give rise to a claim, as the discrimination will
not be based upon association with a person possessing a protected
characteristic. In the Republic of Ireland, discrimination legislation
includes carer status as a protected characteristic and prohibits
direct and indirect discrimination, harassment and victimisation
of carers.
89. The Bill also does not require employers
to make reasonable adjustments in favour of carers. The House
of Commons Work and Pensions Committee has recommended that carers
should be given a legal right to request reasonable accommodation,
to ensure their effective participation in the workplace,[132]
having previously suggested that the Bill should give carers the
protection they currently lack in employment, the provision of
goods, facilities and services and through public sector equality
duties.[133]
90. In her written evidence, the Solicitor-General
explained that the Government had not been persuaded of the need
to provide additional protection for carers:
The consultation paper on proposals for the Bill
indicated that the Government was not persuaded of the need to
create broad-based freestanding discrimination legislation for
carers; and that it was considered to be more appropriate to continue
with targeted provisions and specific measures instead. The Government
asked for comments on this approach and, after considering the
responses received, decided not to extend protection against discrimination
specifically because of parenting or caring responsibilities.
The main reason is that, unlike the other protected characteristics,
the role of a carer primarily concerns what a person does, rather
than who they are. The Government continues to believe that measures
such as the right to request flexible working are better suited
to supporting carers than the provision of an additional protected
characteristic in discrimination law.
Under the Bill, carers are protected if they
suffer direct discrimination or harassment because of their association
with a disabled person or person of a certain age. This protection
extends to carers under the age of 18 who are discriminated against
because of their association with an older person they care for.
The protection for associates of disabled people does not extend
to requiring reasonable adjustments, such as flexible working.
Such a provision is not necessary. This is because, in recognition
of the valuable role carers play and the additional responsibilities
and challenges they face, the Government has already extended
employment legislation to include the right for carers to request
flexible working.[134]
91. Carers perform crucial work, shouldering
the burden of providing support and care for many of society's
most vulnerable individuals. Their work and commitment plays a
crucial role in ensuring respect for the right to human dignity
of those they care for. In so doing, they often pay a price in
their working lives and chosen careers and may at times face arbitrary
and unfair discrimination. However, whilst carers have the right
in certain circumstances to request flexible working, at present
they have very limited legal protection. We therefore welcome
the extension of protection for carers that the Bill provides
through the prohibition of discrimination by association. This
will ensure greater protection for individuals with caring responsibilities
for disabled persons, children and older persons. However, the
protection offered is limited. In particular, a carer may face
serious difficulties in showing that an employer or service provider
discriminated on the basis of his or her association with a person
with a protected characteristic. In addition, the Bill appears
to leave those with caring responsibilities exposed to the threat
of discriminatory treatment which is based on their status as
carers, as distinct from discrimination based on the characteristics
of those they care for.
92. Carers UK have highlighted the ongoing difficulties
faced by many carers in their working life and in their interaction
with public authorities.[135]
In our view, carers should be provided with greater protection
against discrimination and other forms of unfair treatment. The
right to request flexible working that carers currently enjoy
is important and provides some opportunity for carers to seek
adjustments in their workplace, but more comprehensive and far-reaching
protection appears to be necessary. In addition, we are not persuaded
by the Government's argument that carers choose their status and
therefore anti-discrimination law is not a suitable tool for protecting
them against unfair treatment. This does not reflect the position
of many carers, in particular younger persons with caring responsibilities
and those from less well-off socio-economic backgrounds, who often
have little real choice when they assume caring responsibilities.
In our view, the crucial social role performed by carers justifies
enhanced legal protection. As a result, we recommend that the
Government extend the Bill to provide greater protection to carers
and give serious consideration to introducing a form of reasonable
accommodation duty upon employers where appropriate.
COMBINED DISCRIMINATION: DUAL CHARACTERISTICS
93. After the Bill was published, the Government
consulted on the possibility of extending protection from discrimination
to a combination of two protected characteristics.[136]
Following the conclusion of the consultation, the Government introduced
a new clause in the PBC which protects from discrimination due
to a combination of two protected characteristics.[137]
When introducing the new clause, the Solicitor-General provided
an example of the type of situation in which combined discrimination
may arise:
a black woman or man of a particular religion
may face discrimination because of stereotyped attitudes to that
combination. It is difficult, complicated and sometimes impossible
to get a legal remedy in those cases, because the law requires
them to separate out their different characteristics and bring
separate claims. That means, for example, a black woman who is
discriminated against having to pick what she thinks is the likelier
reason. Should she bring a claim for race discrimination and then
one for sex discrimination? She might not succeed in either if
the employer can show that black men and white women are not treated
the same.[138]
94. Giving evidence to the PBC, Maleiha Malik
from the Muslim Women's Network and Reader in Law at King's College
London explained the advantages of multiple discrimination protection:
you capture certain types of harms that
otherwise slip through the cracks. It also allows a greater degree
of flexibility for courts in terms of remedies. The most important
area in which it is useful is, for example, when an individual
falls within race, gender and sexual orientation. That must be
the area at which the discrimination law is targeted because they
are the most vulnerable people whom the discrimination law wants
to protect.[139]
95. Whilst welcoming the extension of protection
to a combination of two grounds, some witnesses have suggested
that multiple discrimination should not be limited to two grounds
alone but should relate to an unlimited number of grounds.[140]
Witnesses also suggested that protection should be extended to
encompass indirect discrimination and harassment as well as direct
discrimination.[141]
Race on the Agenda and the National Aids Trust recommended that
if the Government restricts the protection to two grounds, it
should review the legislation after two years to ascertain whether
it remains appropriate to limit it in this way.[142]
96. We asked the Solicitor-General whether restriction
to two grounds would mean that individuals subject to other forms
of multiple discrimination might be denied legal protection against
unfair and unequal treatment, why indirect discrimination or harassment
on multiple grounds will not be prohibited and why the consultation
could not be concluded before the Bill was published.[143]
In her reply, the Solicitor-General relied on evidence from Citizen's
Advice that the large majority of cases of discrimination concern
one or two protected characteristics. She stated:
The vast majority of cases of multiple discrimination
would be addressed by allowing claims combining two protected
characteristics and the benefit of extending protection to combinations
of three or more protected characteristics would be marginal.[144]
97. She also suggested that increasing the number
of grounds would make the law more complex and increase the burdens
for employers. The Solicitor-General stated that there is no evidence
of a need to prohibit indirect discrimination or harassment on
multiple grounds.[145]
In the PBC, she elaborated on this, noting that, although the
Government's view was that harassment claims were not being prevented
from succeeding under existing law by their limitation to one
ground, the extension to the definition of harassment widened
the provision and would provide greater protection.[146]
She suggested that extending protection to indirect discrimination
would be a disproportionate burden on businesses and employers,
given the lack of evidence of need.[147]
In her oral evidence to us, the Solicitor-General agreed, however,
that if in due course it becomes clear that it is necessary to
widen the number of grounds, or to extend coverage to indirect
discrimination and harassment, the Government would consider doing
so.[148]
98. We welcome the widening of protection
from discrimination to a combination of two grounds. We consider
that this will enhance the human rights of individuals who have
been discriminated against. Whilst, in our view, combined discrimination
on two grounds should not be an excessive burden to businesses
and employers, clear and accessible guidance is required in order
to ensure that those who are required to comply fully understand
their legal obligations. We urge the Government to keep the situation
actively under review, and to give serious consideration to extending
protection to more than two grounds in the future.
99. However, we are concerned that combined
discrimination will apply only to direct discrimination and not
to other forms of discrimination, such as indirect discrimination
and harassment, which, in our view, could benefit from the additional
protection that extension beyond a single ground would provide.
We also note, with disappointment, that maternity, pregnancy,
marriage and civil partnership are excluded from the scope of
the new clause. We call on the Government to explain in detail
why it is unwilling to extend combined discrimination to indirect
discrimination and harassment and why maternity, pregnancy, marriage
and civil partnership are excluded from this area.
HARASSMENT
The Definition of Harassment
100. Clause 25 defines harassment as follows:
(1) A person (A) harasses another (B) if
(a) A engages in unwanted conduct related to
a relevant protected characteristic which has the purpose or effect
mentioned in subsection (2),
(b) A engages in any form of unwanted verbal,
non-verbal or physical conduct of a sexual nature that has that
purpose or effect, or
(c) because of B's rejection of or submission
to conduct (whether or not of A), A treats B less favourably than
A would treat B if B had not rejected or submitted to the conduct.
(2) The purpose or effect is
(a) violating B's dignity, or
(b) creating an intimidating, hostile, degrading,
humiliating or offensive environment for B.
(3) In deciding whether conduct has that effect,
each of the following must be taken into account
(b) the other circumstances of the case;
(c) whether it is reasonable for the conduct
to have that effect.
(4) For the purposes of subsection (1)(c), the
conduct is
(a) conduct mentioned in subsection (1)(a), if
the relevant protected characteristic is gender reassignment or
sex;
(b) conduct mentioned in subsection (1)(b).
101. This clause provides a single, uniform definition
of harassment. This new definition will extend protection against
discrimination and clarify the scope of existing discrimination
law by providing that the unwanted conduct in question may constitute
harassment if it is "related to" a protected characteristic.
Existing legislation requires unwanted conduct to be "on
the grounds of" a characteristic, which is a more restrictive
definition: the new definition contained in Clause 25 is wider
in scope and should ensure that harassment which is not directed
specifically at a claimant or which is based on association with
a protected characteristic is prohibited. This new definition
also better reflects the requirements of the relevant European
legislation.
102. The new definition retains the "disjunctive"
approach adopted in existing UK legislation, whereby a person
needs to show either that their dignity was violated by
the unwanted conduct, or that an intimidating, hostile,
degrading or offensive environment was created as a result of
it. In contrast, the definition contained in the relevant European
Directives requires both of these conditions to be satisfied,
a requirement referred to as the "conjunctive" approach.[149]
The disjunctive approach reflects existing case-law and has been
adopted in successive anti-discrimination legislation since 2003.[150]
It also offers more extensive protection against discrimination
than the conjunctive approach: while at times the difference between
both approaches may be marginal, given that conduct which violates
a person's dignity will often also create an intimidating or offensive
environment for that person, there may be circumstances in which
one but not the other condition would be satisfied, which would
satisfy the disjunctive test but not the conjunctive. The Solicitor-General
suggested that to adopt the conjunctive approach in domestic discrimination
law now would risk breaching the principle of non-regression[151]
in European law.[152]
103. Clause 25(3) introduces a new test for determining
when conduct violates a complainant's dignity or has created an
intimidating or hostile environment. It requires both the claimant's
subjective perception and the objective circumstances of the case
to be taken into account. In her written evidence to us, the Solicitor-General
explained:
In determining whether conduct can be regarded
as constituting harassment, account must be taken of the complainant's
perception of the conduct, the other circumstances of the case,
and whether it is reasonable that the conduct should be regarded
as having the effect of harassment. This safeguard is to ensure
that unreasonable allegations of harassment are not caught. This
objective element is not found explicitly in the Directives, but
it codifies domestic case law in a way which in the context of
the definition as a whole is compatible with them.[153]
104. The Explanatory Notes to the Bill state
that when applying this test, "courts and tribunals will
continue to be required to balance competing rights on the facts
of a particular case; this would include consideration of the
value of freedom of expression (as set out in Article 10 of the
ECHR) and of academic freedom".[154]
105. In our view, the definition of harassment
set out in Clause 25 clarifies and extends existing protection
against harassment while striking an appropriate balance between
protecting the right to freedom of expression (in Article 10 ECHR
and other international instruments) and the right to equality
(in Article 14 ECHR, Article 26 ICCPR and other international
treaties). This definition of harassment should be applied by
courts and tribunals in the light of the relevant ECHR case-law
on the Article 10 right to freedom of expression. However, a more
restrictive definition of harassment on the basis of sexual orientation
may be appropriate in the context of service provision and the
performance of public functions.
Harassment on the Grounds of Marriage/Civil Partnership
and Pregnancy
106. Clause 25(5) provides that behaviour that
satisfies the definition of harassment is prohibited in respect
of all the protected characteristics, except for marriage and
civil partnership, and pregnancy or maternity. Individuals who
are subject to harassment on the grounds of pregnancy or their
marriage/partnership status are therefore not protected. The EHRC
has criticised this omission, on the basis that "these are
some of the most distressing forms of behaviour to people who
may be acutely vulnerable".[155]
The Commission also notes that:
Harassment on grounds of pregnancy and maternity
or marriage or civil partnership is behaviour which would fall
within the ambit of Article 8 ECHR, or even - in certain circumstances
- within the ambit of Article 3. However, it is far from clear
that positive obligations under Article 14 would stretch to rendering
such behaviour unlawful if performed by a private individual,
not himself or itself susceptible to direct challenge under the
HRA. It does not, therefore, seem likely that this lacuna would
be filled by recourse to a remedy under the HRA. The Government's
reasons for excluding pregnancy and maternity, marriage and civil
partnership from the "relevant protected characteristics"
under clause 24(5) remain opaque.[156]
107. In her written evidence to us, the Solicitor-General
outlined the Government's reasoning in respect of the omission
of protection against harassment related to pregnancy or marriage/partnership
status:
Discrimination because of marriage and civil
partnership is prohibited in order to address very narrow circumstances
in which some employers still adopt policies which may discriminate
against married people or civil partners: for example, where employers
do not allow married people to work together. However, the Government
is not aware of any evidence that people are harassed in the workplace
because they are married or a civil partner. It does not therefore
consider there is a need for such protection. If a civil partner
is harassed because of their sexual orientation, protection is
already provided.
With regard to pregnancy and maternity, any harassment
that a woman is subjected to will be covered by the protection
against harassment related to sex. The Government therefore considers
that specific protection against harassment because of pregnancy
or maternity is unnecessary and would add no value.
In the consultation paper on proposals for the
Bill, the Government made clear that it would only legislate if
there was evidence of a real problem. No such evidence was forthcoming
in these cases.[157]
108. We consider that strong arguments exist
for prohibiting harassment on the grounds of being married or
in a civil partnership, and harassment on the grounds of pregnancy
or maternity. It would ensure comprehensive protection against
forms of discrimination on the basis of marital status, pregnancy
or maternity which may not have been highlighted by the parties
who responded to the consultation but may nevertheless exist.
It would also eliminate confusing distinctions between the different
characteristics, thereby improving the clarity of the legislation.
In addition, it may make it easier to challenge harassment based
on these characteristics rather than having to rely on the roundabout
route of attempting to make out a case based on the characteristics
of sex or sexual orientation.
109. Clause 28(8) substantially re-enacts existing
legislation and exempts harassment related to religion or belief
or sexual orientation in the provision of services or the exercise
of public functions from the general prohibition on harassment.
Similar exemptions exist in the field of the disposal, management
and occupation of premises,[158]
and in education in schools.[159]
The absence of a prohibition of these forms of harassment reflects
concerns expressed during parliamentary debates in the course
of the passage of the Equality Act 2006 that prohibiting harassment
based on religion or belief or sexual orientation might have a
disproportionate impact upon the Article 10 ECHR right to freedom
of expression.
110. In its written evidence to us, the Church
of England suggested that prohibiting harassment in the provision
of goods and services on the grounds of religion or belief or
sexual orientation may open the door to legal challenges to religious
practices or symbols, such as grace before meals, or the preaching
of religious doctrine on issues such as homosexual behaviour,
on the basis that they might create an "offensive" environment
for non-believers or members of other religions.[160]
The Church of England also highlighted the breadth of the definition
of harassment contained in Clause 25, in particular the reference
to the creation of an "intimidating, hostile, degrading,
humiliating or offensive environment", and the provisions
of Clause 25(3) which provide that the subjective perspective
of the claimant and the effect of the conduct in question
should be taken into account in assessing whether discrimination
took place.[161] It
suggested that any prohibition on harassment in the field of service
provision related to religion or belief or sexual orientation
that retained these elements would be excessively wide and far-reaching,
potentially threatening the rights of religious believers to exercise
their Article 10 ECHR right to freedom of expression and Article
9 ECHR right to freedom of religious belief.[162]
111. In contrast, other groups have expressed
concerns about the lack of protection against harassment related
to religion or belief or sexual orientation outside the sphere
of employment and occupation. In his written evidence, the discrimination
law expert Barry Fitzpatrick referred to the Preamble of the Yogyakarta
Principles[163] which
highlighted the role played by harassment on the grounds of sexual
orientation in undermining the integrity and dignity of those
subject to it, and suggested that there are no particularly serious
reasons for failing to prohibit such harassment in the fields
of service provision and the performance of public functions.[164]
112. In our Report on the Sexual Orientation
Regulations we acknowledged that prohibiting harassment on grounds
of religion or belief gives rise to concerns about the impact
on freedom of speech, but we considered harassment on grounds
of sexual orientation to be different because, like sex and race,
sexual orientation is an inherent characteristic.[165]
We concluded that harassment related to sexual orientation should
be prohibited in the fields of service provision and the performance
of public functions, but that a more precise and narrower definition
of harassment should be applied in this context in the interests
of reducing the risk of incompatibility with the rights of freedom
of expression and freedom of religion and belief.[166]
Barry Fitzpatrick suggested that such a narrower definition of
harassment could be achieved in several different ways, for example
by deleting the adjective "offensive" from that part
of the definition of harassment set out in Clause 25 which refers
to the creation of an "intimidating, hostile, degrading,
humiliating or offensive environment".[167]
An alternative could be to apply varying definitions of harassment
in different circumstances. A very narrow and limited definition
of harassment, perhaps framed just in terms of creating a "degrading
environment", could be applied in "open" environments
where individuals were free to come and go, while a much narrower
definition could be applied to acts which took place in a "closed"
environment where individuals are under the sustained supervision
and direction of those who direct or control the environment,
such as a prison. Mr Fitzpatrick also suggested that specific
exceptions could be introduced to protect the expression of religious
belief: these could presumably for example include "preaching"
or "affirmation of belief" exceptions.[168]
However, the Church of England suggested that as long as consideration
is given to the effect of harassment on the claimant, a
narrower definition of harassment could still endanger freedom
of expression and freedom of religion and belief.[169]
113. In her written evidence to us, the Solicitor-General
explained the Government's position:
The Government has ruled out using a narrower
definition of harassment where European law does not apply, because
one of the key aims of the Bill is to simplify and harmonise the
law. Introducing a two-tier approach to harassment would introduce
new and, in the Government's view, unnecessary legal complexity.
As regards the provision of goods, facilities
and services and the performance of public functions in relation
to religion or belief or sexual orientation, the Government has
not been provided with evidence of a compelling case to provide
protection from harassment. So it does not consider there is a
basis for legislating nor that there is any need to consider whether
a narrower definition would be warranted (with the complexities
it would introduce) in these areas.[170]
114. We consider that the absence of an explicit
prohibition on harassment related to sexual orientation in the
areas of service provision, the performance of public functions,
and disposal, management and occupation of premises represents
a significant gap in the protection against discrimination offered
by the Bill. It leaves individuals without clear protection against
demeaning and degrading harassment in important areas of their
life. This may give rise to issues under the prohibition of discrimination
(Article 14 ECHR) read in conjunction with the right to respect
for private and family life (Article 8 ECHR), to freedom of thought,
conscience and religion (Article 9 ECHR) or the prohibition on
inhuman or degrading treatment (Article 3 ECHR).[171]
115. As currently framed, the Bill may offer
some protection against harassment as a result of the general
prohibition against direct and indirect discrimination on the
grounds of sexual orientation: case-law has established that harassment
that constitutes "less favourable treatment" may in
certain circumstances constitute direct discrimination. However,
the extent to which this is the case remains unclear. As a result,
the absence of explicit provisions on harassment relating to sexual
orientation that takes place in the course of service provision
or the performance of public functions leaves the legal position
unclear and ambiguous, to the benefit of neither service users
nor service providers.
116. The Northern Ireland High Court in its judgment
in the Christian Institute judicial review of the harassment
provisions of the Equality Act (Sexual Orientation) Regulations
(NI) 2006, which prohibit harassment, even under the wide definition,
on the grounds of sexual orientation in service provision and
the performance of public functions, concluded that these provisions
could be interpreted and applied in a manner which respected the
Article 10 ECHR right to freedom of expression and the Article
9 ECHR right to freedom of religion and belief.[172]
Mr Justice Weatherup in his judgment gave guidance as to how the
definition of harassment in the 2006 Regulations (which is very
similar to the definition set out in Clause 25 of the Bill) could
be applied in a manner compatible with these rights.
117. Given the guidance provided by the Northern
Ireland High Court in the Christian Institute judicial
review, it would appear that a prohibition on harassment related
to sexual orientation can be applied in a manner compatible with
the ECHR Article 9 and 10 rights (right to freedom of religion
and freedom of expression) in the areas of service provision and
the performance of public functions.
118. A narrower definition of harassment would
however provide a more precise level of protection while giving
clear protection to Article 9 and 10 ECHR rights. As we have previously
noted, "[c]onduct which has the purpose or effect of 'violating
dignity' or creating an 'offensive environment' potentially covers
a very wide category of conduct given the inherent vagueness of
the terms 'dignity' and 'offensive'".[173]
This inherent vagueness may have a potentially greater "chilling
effect" on freedom of expression if applied in the context
of service provision and the performance of public functions than
it does in the context of employment and occupation, where the
"closed" environment of a workplace requires greater
consideration to protecting the Articles 14, 8 and 3 ECHR rights
of employees who face harassment. We reiterate our previous conclusion
that a more precise and narrow definition of harassment should
be applied in this context in the interests of reducing the risk
of incompatibility with the rights to freedom of expression and
freedom of religion and belief.[174]
We are of the view that language or behaviour that in respect
of sexual orientation or gender identity violates someone's dignity
or creates an environment that is "humiliating, threatening,
degrading or offensive" is not justified in schools or in
the provision of public services. We therefore recommend that
protection from harassment be available on the grounds of sexual
orientation and gender identity in schools using the narrower
conjunctive definition as there is a "captive population"
and vulnerable population at risk and there is an established
problem of bullying and harassment in this area. We also recommend
that protection from harassment be available on the grounds of
sexual orientation using the narrower conjunctive definition in
the provision of public services as those who use public services
may also be "captive populations" and vulnerable.
119. Clause 38 makes an employer liable for failing
to take steps to prevent harassment by third parties against employees,
where the employer "failed to take such steps as would have
been reasonably practicable" to prevent the third party carrying
out the harassment. However, Clause 38(3) provides that this only
applies where the employer knows that the same employee has been
harassed on two prior occasions. This could be seen as permitting
employers excessive leeway before they are required to respond
to third-party harassment. We consider that the threshold requirement
should be reduced to one previous incident, or that this requirement
should be replaced with a provision that an employer will be liable
when they ought reasonably to have been aware of the risk of third-party
harassment.
DISCRIMINATION RELATED TO DISABILITY
120. The Bill substantially re-enacts existing
legislation in prohibiting direct discrimination on the grounds
of disability and requiring employers and service providers to
make reasonable accommodation for persons with disabilities. Clause
20 of the Bill taken with Schedules 2 and 8 strengthen and standardise
the reasonable accommodation duty, in particular by providing
for the duty to be triggered when disabled persons are put at
a "substantial disadvantage". This single threshold
replaces the two separate thresholds set out at present in the
DDA and extends protection against discrimination by replacing
the previous threshold requirement that reasonable accommodation
could only be triggered in the context of the provision of goods
and services when a disabled person found access to be "impossible
or unreasonably difficult".
121. The Bill also attempts to redress some of
the consequences of the House of Lords' judgment in London
Borough of Lewisham v Malcolm, which made it more difficult
to establish the existence of less favourable treatment related
to disability, an important form of prohibited discrimination
under the DDA.[175]
The Bill prohibits indirect discrimination on the grounds of disability,
which represents a considerable extension of protection for the
rights to equal treatment and respect of disabled persons.
122. Clause 15 of the Bill also provides that
it is discrimination to treat a disabled person in a particular
way which, because of his or her disability, amounts to treating
him or her badly and cannot be shown to be objectively justified.
This appears to be an attempt to re-establish the protection against
disability discrimination which had been eroded by the Malcolm
decision, and to clarify elements of the law in this complex
area. In her written evidence to us, the Solicitor-General set
out what the Government intended to accomplish by the insertion
of Clause 15:
Clause [15] is aimed at providing protection,
as disability-related discrimination does at present, from discrimination
that arises not simply because a person is disabled, but because
of an effect of, or something arising from, that person's disability.
The new provision will provide protection for a disabled individual
from a disadvantage which would be a detriment for any person.
This may be illustrated by an example in the Explanatory Note
to the provision in the Bill. A visually-impaired man is dismissed
because he can only continue to carry out his job if he has access
to assistive technology, and such technology is not compatible
with the employer's Information Technology system. Dismissal would
be a detriment for any individual but, in this case, the detriment
only arises because of the impact of the person's disability.
He would not have been dismissed if he did not have a visual impairment
that meant he required assistive technology to enable him to perform
his job.
The Government considers that the removal of
the need to establish a comparator, which is currently required
by the disability-related discrimination provisions in the DDA,
will strengthen the legislation by making it easier for a disabled
person to show that he or she has been subject to detrimental
treatment. The application of indirect discrimination provisions
to disability will further strengthen protection from discrimination
for disabled people because it will assist in tackling and preventing
systemic forms of discrimination that would have detrimental effects
on particular groups of disabled people.
As a consequence, the Government is satisfied
that the replacement of protection from disability-related discrimination
by protection from discrimination arising from disability, and
from indirect discrimination will not violate the 'non-regression
principle' set out in Article 8.2 of Directive 2000/78/EC.[176]
123. However, the EHRC has questioned whether
the prohibition of "discrimination arising from disability"
in Clause 15 as currently worded accomplishes what the Government
intends to bring about.[177]
The prohibition of less favourable treatment that arises "because
of" a person's disability may not cover treatment which would
constitute a detriment for anyone, or which is not detrimental
"because of" a specific disability per se. If
this is the case, this would mean that the Bill would provide
less protection against discrimination on the grounds of disability,
or at least more uncertain protection, than was provided by the
DDA prior to the decision in Malcolm. In the PBC, the Government
undertook to re-examine these provisions.[178]
124. We welcome the provisions of the Bill
which clarify and extend protection against discrimination related
to disability, in particular the strengthening and clarification
of the threshold or trigger point of the duty to make reasonable
accommodation set out in Clause 20, and the extension of protection
against indirect discrimination that relates to a person's disability
provided for in Clause 18. However, the provisions of Clause 15
providing for the prohibition of "discrimination arising
from disability" as currently worded appear excessively narrow
in scope and do not adequately redress the gaps in protection
left by the Malcolm decision. We welcome the Government's
readiness to re-examine these provisions and look forward to the
outcome of its deliberations.
The Asymmetrical Nature of Disability Discrimination
125. Clause 13(3) provides that it is not discrimination
to treat a disabled person differently from someone who does not
have that particular disability "in a way which is permitted
by or under this Act". This clause appears to have been inserted
to retain the "asymmetrical" nature of UK anti-discrimination
legislation, whereby non-disabled persons may not bring an action
challenging more favourable treatment of disabled persons. It
also appears to be designed to ensure that providing more favourable
treatment to particular categories of disabled persons will not
be open to challenge. In the PBC, the Government also undertook
to re-examine this provision.[179]
126. We consider it to be important for the
"asymmetrical" nature of UK disability discrimination
law to be retained and to ensure that the provision of special
assistance to particular categories of disabled persons is not
inadvertently exposed to legal attack. The UN Convention on the
Rights of Persons with Disabilities makes clear that states must
take action to accommodate the special needs of disabled persons
in order to secure their rights to equality and human dignity.
To ensure the substantive equality of disabled persons, it will
often be necessary to treat them differently from others. The
"asymmetrical" nature of UK disability discrimination
law currently reflects this requirement and in so doing gives
effect to international human rights standards.
127. However, as currently worded, the provisions
of Clause 13(3), which state that it is not discrimination to
treat a disabled person differently from a non-disabled person
"in a way which is permitted by or under this Act" are
uncertain and ambiguous. Many forms of "asymmetrical"
treatment of disabled persons are not specifically "permitted
by or under this Act". At present, the Bill does not clearly
establish the "asymmetrical" nature of protection against
disability discrimination. We welcome the undertaking given by
the Government at Committee stage to revisit the wording of this
provision.[180]
The Comparator Requirement
128. The specific nature of disability discrimination
may also not be adequately reflected in the current provisions
of Clause 23 of the Bill, which define who is to be considered
an appropriate comparator when determining whether someone has
been subject to less favourable treatment. Clause 23(1) provides
that when comparing the treatment of different individuals or
groups, there "must be no material difference between the
circumstances relating to each case". This standard approach
to defining the "comparator requirement" must be modified
when it comes to cases of disability discrimination, as disabled
persons often face discrimination precisely as a result of a failure
by employers or service providers to make accommodation to reflect
the different circumstances in which they find themselves when
compared to non-disabled persons who have similar abilities and
qualifications.
129. Clause 23(2) attempts to reflect this by
providing that in disability discrimination claims, "the
circumstances relating to a case include a person's abilities".
However, the EHRC suggests that this wording does not appear sufficiently
clear and risks causing confusion. It has highlighted the potential
for Clause 23 as currently worded to introduce a more exacting
"trigger" into the duty to make reasonable adjustments
than exists at present, which would result in a retrogressive
lowering of protection.[181]
In the PBC, the Government appeared to agree to re-examine and
if necessary to re-draft Clause 23 to remedy this problem. We
welcome this apparent commitment.
130. The comparator requirement has consistently
generated problems in anti-discrimination law, as illustrated
by the House of Lords' decision in Malcolm and the difficulties
faced by the English courts in addressing the issue of pregnancy
discrimination in the case-law of the 1970s and the 1980s.[182]
131. The comparator requirement in UK disability
discrimination law has often generated unforeseen difficulties
and complexities which have restricted the effective protection
of the right to equality. The unsatisfactory wording of Clause
23 as currently drafted is an example of this. We welcome the
Government's undertaking to re-examine this wording. We consider
that there is a need for clear statutory language outlining how
courts and tribunals are to apply the comparator requirement.
The Knowledge Requirement
132. Clause 15(2) provides that the proposed
prohibition of "discrimination arising from disability"
does not apply if the employer or service provider shows that
they "did not know, and could not reasonably have been expected
to know, that B had the disability" in question. This "knowledge
requirement" is a new statutory provision, which was not
contained in the DDA. However, it reflects the interpretation
of the equivalent provisions of the DDA adopted by the House of
Lords in the Malcolm case.
133. The insertion of this knowledge requirement
has been criticised by the Disability Charities Consortium, Mind
and the Leonard Cheshire Trust on the basis that an employer or
service provider who adopted a hostile stance towards persons
suffering from illness or other impairments can now avoid liability
unless a clear indication existed that the person concerned had
a disability.[183]
Disabled persons, and in particular those with mental disabilities,
are often slow to advertise their existence. The Leonard Cheshire
Trust describe it as "one of the most damaging aspects of
the judgment reached in Malcolm".[184]
134. The EHRC have suggested that the inclusion
of this knowledge requirement could be balanced by the insertion
of an amendment to the effect that "the circumstances in
which A shall be taken to be reasonably expected to know about
B's disability include where A has failed to ask B if he has a
disability". The Commission suggests that this would ensure
that "those with responsibilities under the Bill take a pro-active
approach to ensure that they are aware - or as reasonably aware
as they could be - of whether an individual has a disability,
and to prevent 'deliberate ignorance' being employed
to justify discrimination".[185]
135. We consider that a strong case exists
for providing on the face of the Bill that the knowledge requirement
will be deemed to be satisfied when an employer or service provider
failed to ask a claimant whether they suffered from a disability
when it was reasonable to do so. If supplemented by guidance from
the EHRC, this could enhance protection against disability discrimination
by ensuring that employers and service providers cannot rely upon
deliberate ignorance or a "don't ask, don't tell" policy
to evade their obligations.
Pre-Employment Health Questionnaires
136. The National AIDS Trust suggests that a
prohibition on the use of pre-employment health questionnaires
before a job offer has been made would enhance protection against
disability discrimination.[186]
At present, evidence exists that the use of such questionnaires
has a powerful deterrent effect upon potential applicants who
are disabled, often driving them towards specific disability-friendly
environments or to hide their impairment.[187]
Limiting the use of such questionnaires was a key objective of
the US Americans With Disabilities Act 1990, which has considerably
restricted their use to simply assessing whether an applicant
can perform the job in question. However, at present, unless the
use of such questionnaires can clearly be linked to less favourable
treatment on the grounds of disability, UK discrimination law
does little, if anything, to regulate their use.
137. In response to amendments tabled in the
PBC, the Solicitor-General indicated that this could generate
difficulties for employers when it comes to obtaining information
on the need for reasonable accommodation and might also generate
new complexities. However, the Government has undertaken to re-consider
the matter and table amendments at Report stage in the House of
Commons.[188]
138. Serious consideration needs to be given
to limiting the use of pre-employment questionnaires to circumstances
which relate to the ability of the applicant to perform job-related
functions, as is the position in the USA as a result of the Americans
with Disabilities Act.[189]
We welcome the Government's commitment to reconsidering the matter
and look forward to scrutinising its amendments.
55 Clause 145(6). Back
56
European law limits the scope for exceptions to be made in the
sphere of employment and occupation. Back
57
Government Equalities Office, Equality Bill: Making it Work: Ending
Age Discrimination in Services and Public Functions, June 2009,
available at http://www.equalities.gov.uk/pdf/13511%20GEO%20Consultation%206th.pdf. Back
58
Ev 67 at Q 24 Back
59
Ev 67 at Q 24 Back
60
Twenty-fifth Report from the Committee, Session 2008-09, Children's
Rights, HL Paper 157/HC 318. Report to be published 20 November
2009. Back
61
Ev 124 Back
62
Ev 178 Back
63
Ev 112 Back
64
Ev 132 Back
65
Ev 119 Back
66
Ev 176 Back
67
Clause 26. Back
68
Schedule 18(1). Back
69
Q 25. Emphasis added. Back
70
Ev 132 Back
71
In its Fourth Report under the Convention on the Rights of the
Child, the Australian Government indicated that the prohibition
of age discrimination against children in the 2004 Act helps to
ensure that 'the principle of non-discrimination is observed in
a range of areas of public life': see Fourth Report under the
Convention on the Rights of the Child: Australia, October 2008,
para. 60. The Australian Human Rights Commission has produced
a report on the provisions of the 2004 Act, Roadmap to ADA: the
Age Discrimination Act 2004, available at http://www.hreoc.gov.au/age/roadmap_ADA.html. Back
72
Concluding Observations of the UN Committee on the Rights of the
Child: United Kingdom of Great Britain and Northern Ireland, CRC/C/GBR/CO/4,
20 October 2008, paras 25 and 26. Back
73
Schedule 1, para. 2(1). Back
74
Schedule 1, para. 2(2). Back
75
The Equality Bill: Government Response to the Consultation, July
2008, Cm 7454, para. 11.53. Back
76
Ev 168; A study has shown that only 15.3% of disability discrimination
claims involving mental impairment between 1996 and 2000 were
treated as satisfying the definition of disability. Institute
of Employment Studies, Leverton 2002. Back
77
Ev 120 & 154 Back
78
Also contained in the current wording of Clause 6. Back
79
First Report of the Joint Committee on the Draft Disability Discrimination
Bill, HC 352-II , HL Paper 82-II, Ev 119 Back
80
See Seventh Report of Session 2007-08, A life like any other?
Human rights of adults with learning disabilities, HL Paper 40-II,
HC 73-II. Back
81
UN Convention on the Rights of Persons with Disabilities, Article
2. Back
82
Ev 120 & 154 Back
83
Ev 154 Back
84
Ev 68 at Q 4 Back
85
PBC Deb, 16 June 2009, col 194. Back
86
Work and Pensions Committee, Third Report of Session 2008-09,
The Equality Bill: How disability equality fits within a single
Equality Act, HC 158-I. Back
87
Ev 120 & 132 Back
88
Ev 140 & 162; Memorandum and Oral Evidence submitted by Press
for Change to the Equality Bill Committee (Ev 11) 2 June 2009. Back
89
Ev 128 Back
90
PBC Deb, 16 June 2009, col 206. Back
91
PBC Deb, 16 June 2009, col 204. Back
92
Ev 68 at Q 3 Back
93
See e.g. sections 4 and 6 of the Equal Opportunity Act 1995 (Victoria). Back
94
Ev 132 & 149 Back
95
In Re P (Adoption: Unmarried Couple) [2008] UKHL 38 (a
provision referring to a "married couple" should include
an unmarried couple in order to comply with human rights law). Back
96
Ev 149 Back
97
Ev 132 Back
98
Ev 67 Back
99
Clause 25. Back
100
Clause 27(1)(b). Back
101
Clause 31. Back
102
Including in school as a result of Clause 81, in further education
by virtue of Clause 87 and by qualifications bodies through Clause
92. Back
103
Ev 149 Back
104
Ev 67 Back
105
Ev 67 Back
106
E.g. Ev 100 (Bhagwan Valmiki Trust); Ev 110 (Central Valmik Sabha) Back
107
NC10 proposes to include the protected characteristic of caste
within the Bill. Back
108
PBC Deb, 2 June 2009, col 12. Back
109
Such as the different test of indirect discrimination that is
applied depending on whether a case involves allegations of discrimination
based on skin colour or discrimination based on race, ethnicity
or national origin. Back
110
As reflected in the current wording of Clauses 17 and 18. Back
111
EN, para. 73. Back
112
Equal Opportunities Review, June 2009, issue 189, p. 23. Back
113
Ev 130 Back
114
[1990] 2 All ER 206. Back
115
[2003] IRLR 285. Back
116
[1990] 2 A.C. 751, 774. Back
117
Equal Opportunities Review, June 2009, issue 189, p. 23. Back
118
In Nagarajan v London Regional Transport [1999] 4 All ER
65, HL, Lord Neill interpreted the 'on grounds of' test as providing
that if a protected characteristic 'had a significant influence
on the outcome, discrimination is made out'. Michael Rubenstein
suggests that there could be a danger that the 'because of' test
might be interpreted as requiring the characteristic to be the
predominant factor in causing the less favourable treatment, not
just a 'significant' one. Equal Opportunities Review, June 2009,
issue 189, p. 23. Back
119
PBC Deb, 16 June 2009, col 240. Back
120
PBC Deb, 16 June 2009, col 242-3. Back
121
PBC Deb, 16 June 2009, col 242. Back
122
EN, para. 71. Back
123
In contrast, UK law prohibiting direct discrimination on grounds
of gender, race and ethnic or national origins, religion or belief
and sexual orientation has been interpreted as also prohibiting
discrimination based on perception or association which is linked
to these characteristics. Back
124
[2008] E.C.R. I-5603. Back
125
Written Ministerial Statement, 2 April 2009. Back
126
See the comments of the Solicitor-General at PBC stage: PBC Deb,
16 June 2009, col 254. Back
127
Ev 107, 122 & 132 Back
128
PBC Deb, 16 June 2009, col 254. Back
129
Ev 67 at Q 15 Back
130
C303-06, Coleman v Attridge Law [2008] E.C.R. I-5603. Back
131
Equal Opportunities Review, June 2009, issue 189, p. 23. Back
132
Third Report of Session 2008-09, The Equality Bill: How disability
equality fits within a single Equality Act, HC 158-I, paras 45-61. Back
133
Fourth Report of Session 2007-08, The Equality Bill: How disability
equality fits within a single Equality Act, HC 158-I, para. 364. Back
134
Ev 67 Back
135
Ev 107 Back
136
Government Equalities Office, Equality Bill: Assessing the impact
of a multiple discrimination provision - a discussion document,
April 2009. Back
137
Clause 14. Back
138
PBC Deb, 2 July 2009, cols 681-686. Back
139
PBC Deb, 9 June 2009, cols 80-81. Back
140
Ev 156 Back
141
Ev 130 & 156 Back
142
Ev 156 & 165 Back
143
Ev 58 Back
144
Ev 67 at Q 16 Back
145
Ev 67 at Q 16 Back
146
PBC Deb, 2 July 2009, col 683. Back
147
PBC Deb, 2 July 2009, col 683. Back
148
Q 40 Back
149
See Article 2(3) of Council Directive 2000/78/EC of 27 November
2000 establishing a general framework for equal treatment in employment
and occupation. Back
150
See e.g. Reg. 5 of the Employment Equality (Sexual Orientation)
Regulations 2003; Reg. 5 of the Employment Equality (Religion
or Belief) Regulations 2003; Reg. 6 of the Employment Equality
(Age) Regulations 2003. Back
151
The principle of non-regression in EU law as set out in Article
8(2) of Council Directive 2000/78/EC and other provisions of European
law requires that measures intended to give effect to the right
to non-discrimination should not reduce the level of protection
already afforded against discrimination in national law. Back
152
Ev 71 at Q 10 Back
153
Ev 71 at Q 10 Back
154
EN, para. 101. Back
155
Ev 132 Back
156
Ev 132; similar concerns have been expressed by Liberty, Ev 149 Back
157
Ev 70 at Q 8 Back
158
Clauses 32(6), 33(4) and 34(4). Back
159
Clause 82(10) (considered below under Part 6 of the Bill). Back
160
Ev 114, para. 16 Back
161
Ev 114, paras. 17-19 Back
162
Ev 114 Back
163
The Yogyakarta Principles were drafted by a group of international
human rights experts and outline binding international human rights
standards in relation to sexual orientation and gender identity
(March 2007). Back
164
Ev 97 Back
165
Sixth Report of Session 2006-07, Legislative Scrutiny: Sexual
Orientation Regulations, HL Paper 58, HC 350, para. 56. Back
166
Ibid., para. 56. Back
167
Ev 97 Back
168
Ev 97 Back
169
Ev 114 Back
170
Ev 67 Back
171
See the discussion of the scope of the (subsequently deleted)
harassment provisions contained in the Bill that subsequently
became the Equality Act 2006 by our predecessor Committee. Sixteenth
Report of Session 2004-05, Equality Bill, HL Paper
98, HC 497, paras. 41-42. Back
172
[2007] NIQB 66. Back
173
Sixth Report of Session 2006-07, Legislative Scrutiny: Sexual
Orientation Regulations, HL Paper 58, HC 350, paras 57-8. Back
174
See paragraph 117 above. A number of new clauses have been tabled
for Report stage of the Bill. Amendments NC7-9, tabled by Lynne
Featherstone MP and Dr Evan Harris MP, would extend the legislative
prohibition on harassment. Amendment NC7 would apply the standard
definition of harassment set out in Clause 25 in prohibiting harassment
on the grounds of sexual orientation and gender reassignment in
the field of education and in the area of service provision and
the performance of public functions, where 'the service or public
function is carried out by a public authority, or on behalf of
a public authority, under the terms of a contract with a public
authority, or is otherwise a function of a public nature'. In
contrast, Amendment NC9 would apply a narrower definition of harassment,
lacking any reference to an 'offensive' environment, in prohibiting
harassment on the basis of religion or belief in the same areas.
Amendment NC8 would apply the standard definition in prohibiting
harassment on the grounds of gender reassignment in the area of
education. Back
175
[2008] UKHL 43. Back
176
Ev 67 Back
177
Ev 132 Back
178
PBC Deb, 16 June 2009, cols 275-6. Back
179
PBC Deb, 16 June 2009, col 258. Back
180
Amendment NC15, tabled by Lynne Featherstone MP and Dr Evan Harris
MP, states that "nothing in this Act shall be taken to prohibit
more favourable treatment of a disabled person on the grounds
of a disabled person's disability". Amendment NC16, also
tabled by Lynne Featherstone MP and Dr Evan Harris MP, provides
that disability will not be classed as a protected characteristic
for the purposes of the provisions of the Bill that regulate positive
action. Back
181
Ev 132. See also, Rubenstein, M., Equal Opportunities Review 190,
July 2009, 31. Back
182
See e.g. Webb v EMO Air Cargo (UK) Ltd. (No. 2) [1995]
IRLR 645, HL. Back
183
Ev 120, 147 & 154 Back
184
Ev 147 Back
185
Ev 132 Back
186
Ev 160 Back
187
See the evidence considered by the House of Commons Work and Pensions
Committee, Third Report of Session 2008-09, The Equality Bill:
How disability equality fits within a single Equality Act, HC
158-I, paras. 145-148. Back
188
PBC Deb, 7 July 2009, col 744. Amendment NC10(2), tabled by Lynne
Featherstone MP and Dr Evan Harris MP, would require employers
to take reasonable steps to ensure that selection for interview
is done on an anonymous basis and the person selecting for interview
does not know the gender, race, sexual orientation, age or marital
status of the applicant, or that the applicant has a disability. Back
189
We are supported in our views by the conclusion of the House
of Commons Work and Pensions Committee that "disability related
enquiries before a job offer should be permitted only in very
limited circumstances": see Third Report of Session 2008-09,
The Equality Bill: How disability equality fits within a single
Equality Act, HC 158-I, para. 156. Back
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