Supplementary memorandum submitted by
Unison
HUMAN RIGHTS
AND THE
EQUALITY BILL
Introduction
UNISON is the UK's largest public services trade
union with more than 1.3 million members. Our members are
people working in the public services, for private contractors
providing public services and in the essential utilities. They
include front line staff and managers working full or part time
in local authorities, the NHS, the police service, universities,
colleges and schools, the electricity, gas and water industries,
transport and the voluntary sector. We have had, from our creation
in 1993, structures at all levels for under-represented groups
(disabled, black, women and lesbian, gay, transgender and bisexual
members, young people and retired members).
Equality Bill
The Equality Bill aims to harmonise and consolidate
discrimination legislation and also tackle inequality and discrimination
in employment and in the provision of services. Nine major pieces
of legislation and around 100 other measures will be replaced
by a single Act. But it falls short of doing this within a framework
of human rights from which it could have benefited.
Human rights approach
The Human Rights Act remains one of the great
achievements of the Labour administration. The Equalities Bill
goes some way towards tackling issues of discrimination and harassment,
but our contribution to the EHRC Human Rights Inquiry (published
on Monday 15 June) showed that our concerns go beyond consolidating
legislation. We maintain that the overarching framework of human
rights is necessary to provide a context for law and regulation.
UNISON agrees with the point made in the Committee's
letter to Vera Baird that non-discrimination should be recognised
as a free standing right.
Tackling inconsistencies
UNISON believes that it would have been useful
to include an overarching purpose clause in the bill, to assert
its position in relation to other relation and to give guidance
in interpretation as to underlying principles and aims.
Some areas of the bill where UNISON believes
it falls short of its potential to extend the human rights approach
to discrimination and to the provision of public services are
set out below.
Public authorities
One of the aspects of the Human Rights Act which
is in need of clarification is the definition of a public authority,
which is relevant to many other pieces of legislation, including
the Freedom of Information Act, and is in urgent need of attention.
The Government has embarked on piecemeal attempts to plug some
of the gaps, by using the Health & Social Care Act, and the
current Health Bill, for instance, to tackle the problem of the
two-tier approach to rights which has emerged from the fragmentation
of public services over a number of years. The Equality Bill has
produced another listing of public authorities where it would
have been preferable for the government to set out a clear definition
which could be applied across the board.
Disability
The Bill introduces a simplified definition
of who is a disabled person. However, it retains the requirement
for the impairment to be substantial. This term has excluded some
disabled people from protection in law.
Religious schools
UNISON is disappointed that the Equality Bill
retains all of the existing exemptions from equality legislation
that apply to state funded religious schools.
UNISON supports the view of Accord (the national
coalition campaigning for inclusive schools and an end to discriminatory
legal provisions for state funded religious schools) that there
is no need for specific exemptions for employment in faith schools,
since organisations with a religious ethos will in any case be
permitted under the Bill (Para 3, Schedule 9) to apply a requirement
to be of a particular "religion or belief" if it is
(1) an occupational requirement and (2) a proportionate means
of achieving a legitimate aim. This test is sufficient and the
specific ability given to faith schools to discriminate can and
should be removed, and repealed in the School Standards and Framework
Act 1998.
Children and young people
Under-18s should be covered effectively by the
Bill from a human rights perspective. The Bill was an opportunity
to confirm that children have the full protection of the rights
set out in the UN Convention on the Rights of the Child.
With regard to young workers, UNISON regrets
that the government, rather than using this Bill to end the age
discrimination in the National Minimum Wage age bands, has again
chosen to grant an exception. UNISON's position remains that workers
should be paid the proper rate for the job, and preservation of
this discrimination only serves to underline that young workers
are valued less than their older colleagues. The Bill also fails
to protect those under 18 from discrimination in the provision
of goods, facilities and services.
Older people
For older workers, UNISON continues to stress
the importance of the difference between the age when a pension
is payable, and the age when someone retires. We believe in the
need to protect the concept of pensionable age regardless of people
being able to work beyond pensionable age. UNISON is campaigning
to keep the pensionable age at 65 or lower.
UNISON notes that the Bill reaffirms the continuation
of a Normal Retirement Age (NRA) of 65 and the right to request
to continue to work beyond that. However UNISON believes that
the individual workers should have the right to work beyond the
NRA based on their personal circumstances. Under the Bill employers
will have to provide no reason for refusing such a request provided
they have undertaken the duty to consider six months before the
individual's NRA.
UNISON welcomes protection from discrimination
in the provision of insurance services. With regard to age differences
in insurance calculations, we stress that decisions should be
based on actuarial evidence rather than assumptions linked to
age. The Equality Bill refers to "adequate evidence"
and we will be seeking clarity on how this applies.
Equal pay
The gender pay gap is likely to remain stubbornly
high and those women who do go to law to seek equal pay are likely
to be involved in lengthy and complex legislation. There is a
need for a more fundamental reform of equal pay law. Equal pay
is the one area of UK discrimination law where claimants are required
to identify an actual comparator in the same employment who is
being treated differently to themselves. Furthermore, the EU Equal
Treatment Directive allows hypothetical comparators. The Bill
should therefore allow the use of hypothetical comparators in
discrimination cases where no actual comparator exists. Currently
it is difficult for women in highly gender segregated employment
to point to an actual male comparator.
Harassment
It is completely unacceptable that, under the
Bill, harassment has to occur on two previous occasions before
there are obligations for an employer to act. This is an ill thought
through proposal and one which needs amending.
We also note with disappointment that the Bill
does not protect from harassment on grounds of sexual orientation
or religion or belief outside the workplace; or protect school
students from harassment on grounds of gender reassignment, sexual
orientation or religion/belief.
Secondary legislation
UNISON is concerned at the reliance on secondary
legislation for some of the future implementation of the Bill,
at the expense of full parliamentary scrutiny.
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