Equality

The New Legal Framework

Bob Hepple

• Publisher: Hart Publishing
• Year: 2011
• ISBN:
  9781847317735
• Edition: 1
• Topic: Law
• Subtopic: Discrimination Law
• Index: Law

The Equality Act 2010 is a major landmark in the long struggle for equal rights. This book tells the story of how and why it came to be enacted, what it means, what changes it can bring about in British society, and - no less important - what the Act will not do. The Act is the outcome of over 13 years of research, public debate and campaigning, starting with the publication of Equality: A New Framework. Report of the Independent Review of the Enforcement of UK Anti-Discrimination Legislation by Bob Hepple, Mary Coussey and Tufyal Choudhury (Hart Publishing, 2000). The aim of this book is to examine the aims and structure of the new legal framework and to assess the Act against goals of reform set by the earlier review: harmonising and extending the law on status equality; widening the areas of unlawful conduct; changing organisational policy and behaviour including positive duties to advance equality; and improving enforcement of the law. The book will be essential reading for anyone who wants to understand the Act and the wider context of equality law, including students of law and social sciences, human rights activists and lawyers, as well as the general reader.

1

The Aims of Equality Law

THE EQUALITY ACT 2010

THE EQUALITY ACT 2010 is a major landmark in the long struggle for equal rights. This book tells the story of why and how it came to be enacted, what it means, what changes it can bring about in British society, and—no less important—what the Act will not do.

The Act has three distinctive features. First, it is comprehensive, adopting a unitary or integrated perspective of equality enforced by a single Equality and Human Rights Commission (EHRC). The Commission was established by Part 1 of the Equality Act 2006 to replace the three former equality commissions,¹ and came into operation on 1 October 2007. The single Commission and the single Act of 2010 mark a decisive shift away from the politics and law of single identities—such as race and religion, gender, sexual orientation, disability and age—towards the politics and law of fundamental human rights. Secondly, the Act of 2010 harmonises, clarifies and extends the concepts of discrimination, harassment and victimisation and applies them across nine protected characteristics Thirdly, it contains some measures, described as transformative equality, extending positive duties on public authorities to have due regard to the need to eliminate discrimination, advance equality of opportunity, and foster good relations between different groups. It also clarifies and broadens the circumstances in which positive action may be taken voluntarily in both private and public sectors to further these objectives. The shift of focus from negative duties not to discriminate, harass or victimise, to positive duties to advance equality, justify the re-invention of this branch of the law as equality law, of which discrimination law is an essential but not exclusive part. The Act replaces nine major earlier pieces of legislation² covering gender, race, disability, religion or belief, sexual orientation and age. It also seeks to implement fully the principal EU directives³ in these fields.

The Act is the outcome of over 13 years of campaigning by equality specialists and human rights organisations. There were numerous reasons why the prevailing framework of anti-discrimination legislation needed to be reformed.⁴ There was fragmentation and inconsistency between three separate anti-discrimination regimes (sex, race and disability) and three commissions. There was pressure to extend the grounds of discrimination to include sexual orientation, religion or belief, and age, and to impose duties on the public sector to promote equality. The EU Race Directive and Framework Employment Directive, made under Article 13 of the EC Treaty inserted by the Treaty of Amsterdam, made it necessary for the UK to legislate on these matters, and to revise existing law on sex, race and disability discrimination. There were also several gaps between the rights and obligations guaranteed by EU law and domestic legislation, and international treaties ratified by the UK had not been fully respected.

The CRE, EOC and DRC repeatedly reported on the urgent need for reform of the legislation, and the courts and tribunals pointed out serious defects in legal procedures in areas such as equal pay for women. These were not simply the gripes of lawyers and equality activists. Social research showed that while anti-discrimination legislation had broken down many barriers for individuals in their search for jobs, housing and services, and there were fewer overt expressions of discrimination than in the previous generation, women continued to face occupational segregation, concentration in low-paid, part-time work, unequal pay, pregnancy discrimination and sexual harassment, and members of ethnic minorities, disabled persons, gays, lesbians and transsexuals, and older people still suffered from prejudice and stereotypes relating to their abilities. Discrimination and exclusion had become more complex and covert than they were when the first anti-discrimination laws were enacted. There were attitudes, policies and practices within organisations of the kind identified as ‘institutional racism’ by the inquiry into the murder of Stephen Lawrence, a Black teenager.⁵ It was becoming ever more obvious that eliminating institutional barriers requires greater emphasis on changing organisational culture.

Shortly before the general election in 1997, Lord Lester of Herne Hill QC and I brought together a small group of equality specialists under the auspices of Justice and the Runnymede Trust.⁶ Our pamphlet set out what was wrong with the law—including incoherence and complexity, unnecessary differences between Britain and Northern Ireland, the muddled definitions of indirect discrimination, the tortuous nature of equal pay procedures, the inadequacy of provisions on the rights of pregnant women, and ineffective enforcement, as well as the failure to implement international and EU obligations. We canvassed a number of options for reform which could be undertaken by an incoming Government. After the election Lord Lester and I had a meeting with the Labour Home Secretary (Jack Straw) and his officials, and proposed that the new Government should review anti-discrimination law and practice. He said that the Government had too much else to do, but he was sympathetic and supported our application for funding to the Nuffield Foundation and the Joseph Rowntree charitable Trust for a one year Independent Review under the auspices of the Cambridge Centre for Public Law and the Judge Institute of Management Studies. This was conducted by Mary Coussey, Tufyal Choudhury and myself, with the guidance of an Advisory Committee chaired by Lord Lester (the Cambridge Review).⁷ We undertook targeted case studies of employers in Great Britain, Northern Ireland and the USA in order to elucidate how employers behaved under different legislative regimes. There were extensive consultations and interviews in different parts of the country, and a consultative conference with key stakeholders. The Report was published in July 2000. This explained the defects in the existing law and made the case for a new framework which would harmonise legislation and institutions. The most important proposals were those that sought to encourage an inclusive, proactive and non-adversarial approach to achieve fair participation and fair access. This included an expanded duty on public authorities to promote equality, including the use of contract and subsidy compliance, and a duty on employers to undertake employment equity and pay equity plans. Detailed suggestions were made for improving procedures in courts and tribunals, and for making the remedies more effective.

The Report was welcomed by the Labour Government as a ‘uniquely well-researched guide’.⁸ The Government recognised the validity of the arguments for comprehensive reform, including harmonisation of all strands and the extension of positive duties to gender and disability, but said it needed time ‘to think about how such a framework would be constructed in practice’.⁹ The hallowed ‘principle of the unripe time’¹⁰ delayed the introduction of a Government single Equality Bill for a further seven years. In order to give a spur to this process and show that a single Act was feasible, the Cambridge Centre for Public Law and the Odysseus Trust published a draft single Equality Bill embodying the main recommendations in the Report and taking account of the Article 13 EU Directives. This was introduced as a Private Member’s Bill in the House of Lords in January 2003 by Lord Lester of Herne Hill QC¹¹ with cross-party and cross-bench support. This Bill passed through all its stages in the House of Lords, and over 200 MPs signed an early day motion requesting the Government to introduce such a Bill.

Although the Government described the Lester Bill as ‘outstanding’ (it had been drafted by Stephanie Grundy, an experienced drafter) and promised that it ‘will not die the death’,¹² there was a change of tack. In 2003, the Government decided on a ‘salami-slicing’ approach. The time was not considered ripe for a unified approach until the Article 13 EU Directives had been implemented. This was done by secondary legislation under the European Communities Act and so avoided controversial amendments which would undoubtedly have been moved in respect of religion or belief, sexual orientation and age. Although the political tactics were understandable, the result was to make the law even more complex and inconsistent than before, with three new sets of regulations on religion or belief, sexual orientation and age, and amendments to existing legislation on sex, disability and race discrimination. But the time was still not ripe for a single Act. In 2004, the Government decided that the body of existing law should remain unaltered until a new single commission had been established. The first task of the new Commission would be to review the legislation. The birth of the EHRC, under the Equality Act 2006, was beset with difficulties and controversy, which complicated the transition process, and delayed the single Equality Act.¹³ The 2006 Act added further slices of reform, going beyond the EU Directives by prohibiting discrimination on grounds of religion or belief in the provision of goods and services and education, conferring a power to make regulations for a similar extension in respect of sexual orientation (the Regulations appeared in 2007), and extending the public sector equality duty to gender (from April 2007), as had been done for disability in 2005 (effective from December 2006). There was still no single Act.

In its manifesto for the 2005 general election, the Labour Party pledged to introduce a single Equality Bill. The time was not ripe for another two years, when the Government published an Equalities Review¹⁴ and Discrimination Law Review.¹⁵ The former brought together existing research on persistent inequalities in Britain, and recommended a number of steps to greater equality, including a simpler legal framework and a more sophisticated enforcement regime. The latter made many proposals for harmonising, modernising and simplifying the law, and making it more effective, similar to those set out in the Cambridge Review. However, several proposals were open to criticism, for example not to extend indirect discrimination to cover disability discrimination law, not allowing hypothetical comparators in respect of equal pay, and maintaining the distinction between contractual and non-contractual claims in respect of equal pay. Some, but not all, of these defects were remedied following the consultation process. The most serious omission was any kind of requirement to undertake employment equity and pay equity reviews. The Government received about 4,000 responses.¹⁶ After prolonged preparations— described by the Conservative front bench MP Theresa May as a period of ‘false starts, empty announcements and more delays than I care to remember’¹⁷—the Government’s Equality Bill was finally presented in April 2009, by Harriet Harman, Minister for Women and Equalities.

The Conservatives opposed the Second Reading of the Bill. While claiming to ‘welcome many parts of the Bill’, they said that the Bill included ‘unworkable and overtly bureaucratic proposals’ which were ‘unnecessarily onerous’ to business in a time of deep recession.¹⁸ The Liberal Democrats supported the Bill but thought that it should go further, especially on the subject of equal pay and by incorporating an overarching ‘equality guarantee’ as proposed by the EHRC.¹⁹ The Act that emerged was the product of intense and detailed scrutiny in Parliament over a period of nearly a year. The House of Commons Public Bill committee heard four days of evidence by interested organisations, and considered over 300 amendments in a further 16 sessions for 38 hours, with another 5½ hours at Report stage. The Bill was also scrutinised by the Joint Committee on Human Rights (JCHR) and the Work and Pensions Select Committee. By the time the Bill reached the House of Lords, their Lordships were being pressed by Lord Lester to be disciplined and to restrict amendments so that the Bill could receive the Royal Assent before the pending general election. The House managed to consider numerous amendments over eight days in committee and at the Report stage. The Bill received the Royal Assent on 8 April 2010, one of the last measures to do so under the Labour Government, which lost office in May 2010.

Remarkably, there was cross-party support for the Act, and the Conservative-Liberal Democrat Coalition Government is bringing most of its provisions into operation in stages from October 2010.²⁰ There were only three sections of the Act that the Conservatives, when in Opposition, said that they would not implement: the new duty on public authorities when making decisions of a strategic nature to have due regard to the desirability of reducing the inequalities that result from socio-economic disadvantage,²¹ the duty on employers to disclose gender pay gap information,²² and the exception that allows the use of a positive action tie-break in recruitment and promotion.²³ The rest of the Act is being implemented in an economic climate of severe cuts in public spending. This enhances its relevance, as shown by the EHRC’s threat of enforcement action against the Government if it fails to show that it complied with the public sector equality duty when making spending cuts which have an adverse impact on women, ethnic minorities, disabled people and the elderly.²⁴ The general approach of the Government was indicated by the Minister of State at the Home Office, who said on 8 July 2010 that

the Government have made it clear that a key priority as we support economic recovery is to remove unnecessary burdens on business. By simplifying discrimination law the Equality Act is an important part of our efforts to deliver on this commitment. The Government are looking at how the rest of the Act can be implemented in the best way for business and will make an announcement in due course.²⁵

This book has been written as if the whole Act is in force. The reader needs to check whether any particular section is operational, and whether subordinate regulations and codes of practice have been made.

There is a question as to how far a single Equality Act can successfully ‘simplify’ this very complex area of law, and make it more accessible. Lord Lester’s Bill in 2003 had 94 clauses and 8 schedules in 111 pages. The new Act consists of 218 sections, organised in 16 Parts, and 28 schedules, in 239 pages, and there will also be detailed regulations in secondary legislation, statutory codes of practice and non-statutory guidance. By contrast, the Dutch Equal Treatment Act of 1994 has only 35 sections, and the Swedish Discrimination Act of 2008 has 71 sections. Both of these measures state broad principles, leaving it to subordinate...