Discrimination Law Review: EOR guide
Michael Rubenstein, co-editor of Equal Opportunities Review, looks at the key issues raised by the Government's green paper on a Single Equality Bill.
The government's long-awaited Discrimination Law Review (DLR) has provoked widespread disappointment among equality and diversity specialists.
The DLR was published as a consultative green paper1 on 12 June 2007. Responses are called for by 4 September. The DLR is intended to form the basis of a single equality Bill, which the government is committed to introducing in this session of parliament.
In this guide, we review some of the key issues explored by the DLR. For ease of reference, the order in which they are discussed is the same as the order in the DLR.
DIRECT DISCRIMINATION: KEEPING A COMPARATOR
In order to establish direct discrimination, the law as it now stands requires a claimant to compare their treatment with that of another real or hypothetical person in the same circumstances to determine whether or not there has been less favourable treatment. This has been criticised because it can sometimes be difficult to find a suitable comparator in the same employment; for example, where work is segregated by sex.
What the DLR says "We have considered whether it would be better for the legislation not to state a requirement for a comparator, removing the requirement to show 'less favourable treatment'. This would mean that people could bring claims of discrimination on the basis that they have simply been treated badly rather than having to prove they have been treated worse than someone in the same situation who does not share their protected characteristic… However, we believe it is better to keep the essentially comparative nature of British discrimination law, which reflects the fact that discrimination law is by its nature generally about equal treatment rather than fair treatment… We therefore propose to keep the existing requirement for a comparator in direct discrimination claims."
EOR verdict
There are serious issues as to whether the requirement to have a comparator, and the way the "like for like" comparison has been interpreted, unduly restricts the scope of the law. If someone can show that they were treated unfavourably because they are gay or black or a woman etc, why should their claim fail because they were unable to identify an appropriate comparator in similar circumstances?
The DLR analysis entirely misses the point here. Removing the requirement to have a comparator would not mean that people could "bring claims of discrimination on the basis that they have simply been treated badly". They would still have to show that the ground for their bad treatment was a prohibited ground of discrimination. Surely, that is the whole point of discrimination law, and the law is undermined when a claimant who has been treated unfavourably because of their religion, for example, loses their case because they are unable to point to someone of a different religion in the same circumstances who was treated differently. The "like for like" requirement is being used by the courts to narrow the reach of discrimination law and should be removed.
Interestingly, in this context, when it comes to consider the law relating to victimisation, the DLR acknowledges that the approach to victimisation under the Employment Rights Act 1996, such as in cases where people are penalised for bringing a working time claim, is framed in terms of protecting the employee from suffering any detriment, which does not rely on "comparative damage but on absolute harm to the person concerned". The DLR proposes to "align the law with victimisation provisions in employment law" and remove the requirement for a comparator for victimisation in discrimination law.
The green paper asks for comments on both proposals.
INDIRECT DISABILITY DISCRIMINATION
Unlike all the other discrimination strands, there is no prohibition of indirect disability discrimination. Instead, that function, at least in part, is served by the duty of reasonable adjustment. One of the key aims of the DLR is to harmonise the legislation. Does this mean that protection against indirect discrimination should be extended to disability?
What the DLR says
"In disability discrimination law, while the use of reasonable adjustments provides individual solutions to the barriers encountered by disabled people, changes made as reasonable adjustments for one disabled person may have a positive benefit for others… In this way, the reasonable adjustments requirement can help to address group disadvantage experienced by disabled people in a similar way to the indirect discrimination provisions operating in relation to other protected grounds. We do not, therefore, propose to extend the indirect discrimination provisions explicitly into disability discrimination law."
EOR verdict
Although there is considerable overlap between the concepts of indirect discrimination and reasonable adjustment, there are differences between the scope of protection provided by reasonable adjustments and that which would be provided by indirect discrimination.
Indirect discrimination focuses on the impact of a barrier, policy or practice on a group, whereas the duty of reasonable adjustment is individualised, relating to the particular disadvantage experienced by the disabled person.
More importantly, perhaps, the law relating to indirect discrimination focuses on the reasonableness of the barrier, whereas the provisions of the Disability Discrimination Act (DDA) on reasonable adjustment are concerned with the reasonableness of the solution adopted to overcome the barrier.
The green paper asks whether consultees agree with the proposal not to explicitly introduce indirect discrimination to disability discrimination law.
JUSTIFICATION OF DISABILITY DISCRIMINATION
The test of justification for disability-related discrimination in employment is whether the reason for the treatment is "material to the circumstances of the particular case and substantial". This is a different - and, on balance, rather less onerous - test than currently applies where a service provider has to justify disability discrimination in respect of access to goods, facilities, services or premises. In the case of a service provider, the justification has to fall within one of five enumerated conditions set out in the DDA, but the test requires the service provider only to show it was its reasonable "opinion" that the condition was satisfied.
What the DLR says
"To address this complexity, we propose that, in future, all the different justification tests in disability discrimination law should be replaced with a single objective justification test. This would be the same test as that used to justify indirect discrimination in other discrimination legislation, namely that the conduct in question is a proportionate means of achieving a legitimate aim."
EOR verdict
From the standpoint of discrimination claimants, this is the most positive proposal in the DLR. The "material and substantial" test of justification for disability discrimination in employment was interpreted by the Court of Appeal in Jones v Post Office [2001] IRLR 384 as being equivalent to the range of reasonable responses test for unfair dismissal. The Court of Appeal said that the opinion of the employer must be "respected" if the reason given for the treatment is material and substantial.
The practical result of Jones v Post Office has been to make it comparatively easy for employers to justify disability-related discrimination. It has focused all the attention on the duty of reasonable adjustment. A new test of justification requiring an employer to show that the disability-related treatment was a proportionate means of achieving a legitimate aim will bring the DDA into greater balance, and will make it more difficult for employers - and service providers - to justify treating someone less favourably for a reason related to their disability.
The green paper asks whether consultees agree that there should be a single test of objective justification for disability discrimination.
GENUINE SERVICE REQUIREMENT
Currently, there is no equivalent to the "genuine occupational requirement" test relating to employment that service providers can use to justify direct discrimination. Instead, direct discrimination is lawful only if it falls within one of the relatively narrowly defined specific exceptions in the particular discrimination statute.
What the DLR says
"Introducing a genuine service requirement test would provide a harmonised approach with the employment field. Such a test would allow service providers and those exercising public functions to objectively justify actions which, while being apparently directly discriminatory, were a genuine requirement of the service or public function being provided. The provider would have to prove that the objective was legitimate and the requirement was a proportionate means of achieving that objective. For example, providing women-only or men-only sexual health services, where this increases take-up by patients."
EOR verdict
The genuine service requirement test is introduced under a heading "when service providers can differentiate for a good reason".
No evidence is given as to any problems that have been thrown up by the existing wording, or of service provision cases that would have been decided differently had there been a "genuine service requirement" exception to the legislation.
The proposed genuine service requirement seems dangerously open-ended and would have the effect, via the back door so to speak, of allowing direct discrimination by service providers to be justified. It must be borne in mind that those claiming discrimination against service providers are less likely to have the assistance of a trade union or legal representation. Potential claimants will find it considerably more difficult to challenge a vague genuine service requirement standard than the existing statutory provisions, which require the service provider to fall within an express, defined exception.
The green paper asks whether consultees support or oppose the introduction of a genuine service requirement test.
INSURANCE
The Sex Discrimination Act allows sex discrimination in the provision of insurance, provided that it is based on actuarial or other data on which it is reasonable to rely, and the treatment is reasonable. This renders lawful sex discrimination based on actuarial factors both for the purposes of employment-related benefits and as regards access to financial services. The EU Gender Directive 2004/113/EC (Amending the Sex Discrimination Act) contains provisions relating to insurance.
The Equality Act (Sexual Orientation) Regulations 2007 allow differential treatment of people on grounds of their sexual orientation for insurance purposes where supported by sound actuarial evidence.
What the DLR says
"We propose to amend the insurance provision in the Sex Discrimination Act in order to meet requirements in the EU Gender Directive, one of which is that data relevant to establishing the case for differential treatment by gender must be published and regularly updated.
"The Equality Act (Sexual Orientation) Regulations 2007 include an insurance provision which allows differential treatment of people on grounds of their sexual orientation where supported by sound actuarial evidence. It is intended that this particular exception will not apply beyond the end of 2008. We are committed to working closely with the insurance industry and others to ensure that, if any insurance exception is required beyond the end of 2008, it reflects a genuine need in the industry and is in line with industry best practice."
EOR verdict
Is there any sector of business that has had such a long-term free ride from the Discrimination Law Review requirements of discrimination law as the insurance industry?
When the European Commission first proposed what became the Gender Directive, which implements the principle of equal treatment between men and women in the access to and supply of goods and services, it proposed to preclude differences of treatment based on actuarial factors directly related to sex (New Equal Treatment Directive would cover insurance). The commission powerfully argued that: "Studies show that sex is not the main determining factor for life expectancy. Other factors have been shown to be more relevant, such as marital status, socio-economic factors, employment/ unemployment, regional area, smoking and nutrition habits… Sex is at the very best a proxy for other indicators of life expectancy… The inference which can be drawn from such studies is that the practice of insurers to use sex as a determining factor in the evaluation of risk is based on ease of use rather than real value as a guide to life expectancy."
In the event, the Gender Directive was modified so as to permit proportionate differences in premiums or benefits where sex is a determining factor in risk assessment based on relevant and accurate actuarial and statistical data. The Directive requires that accurate data relevant to the use of sex as a determining actuarial factor are compiled, published and regularly updated.
Gender-based actuarial factors are based on a stereotype, and such generalisations are not normally permissible for decision-making in a discrimination context. There are undoubtedly significant actuarial differences in the health and life expectancy of, for example, white people and those of Asian or African-Caribbean ethnic origin, or between Muslims and Christians (see the Equalities Review (Equalities Review wants procurement and positive action): "Where evidence exists it shows that the overall health experience of ethnic minority groups in Britain is worse than that of the white British population.") However, using such differences to set insurance rates is expressly prohibited by the Race Relations Act and by the religion or belief Regulations. It is not clear why stereotypes based on race or religion are impermissible, whereas those based on sexual orientation or sex are allowed.
EQUAL PAY REVIEWS
The Hepple report (Equality: A New Framework - EOR 90) recommended a positive duty on employers to carry out an equal pay audit every three years and, where discrepancies were identified, to formulate a pay equity plan. The Women and Work Commission (Commission rejects mandatory equal pay reviews) did not echo that recommendation. Instead, it suggested that a new "light-touch tool" be developed to enable employers to look across a range of issues that impact on the gender pay gap.
What the DLR says
"The causes of the pay gap are complex, and are only partly related to issues that can be addressed specifically through equal pay legislation. We have therefore taken an approach of only legislating or extending existing legislation where there is a clear case, targeting it where it is most needed, and bearing in mind the potential burdens on employers, particularly smaller employers.
"For example, we feel that, at present, the evidence does not support legislation mandating equal pay reviews. Equal pay reviews directly address only one of the causes of the gender pay gap - that of gender pay discrimination - and have had a relatively minor impact in the private sector in those countries and provinces where they are mandatory. Enforced equal pay reviews may also contravene better regulation principles as the costs to employers may be out of proportion to the scale of the problem they will address."
EOR verdict
This is a series of questionable assertions. There are, of course, other causes for the gender pay gap - such as occupational segregation, sex discrimination in job allocation, and women choosing lower-paid jobs that offer greater flexibility - but pay discrimination has always been regarded as a major cause. No evidence is given to substantiate the claim that equal pay reviews have had a relatively minor impact on the private sector in other countries and, even if this is so, that might well be attributable to lack of enforcement.
As to whether the cost to employers would be out of proportion to the scale of the problem, only last year the government's Women and Equality Unit (Tackling the gender pay gap: fact sheet) boasted that: "The government is leading by example with all 88 government departments and agencies having completed equal pay reviews. This is reinforced by our toughened target of 45% of large organisations having undertaken pay reviews by April 2008." If they have such little benefit, it is unclear why equal pay reviews have been mandated for the public sector, and are to be urged upon, but not required of, larger private sector employers.
The Equal Opportunities Commission points out that: "While employers are not required by statute to carry out an equal pay review, only an equal pay review can ensure that an organisation is providing equal pay." An equal pay review involves comparing the pay of women and men doing equal work, investigating the causes of any gender pay gaps and closing any gaps that cannot be satisfactorily explained on grounds other than sex. The fact is that it is all but impossible for an employer to proactively address pay discrimination against women without having accurate pay data on the differential between men and women, and without examining the reasons for differentials.
If the government is serious about addressing the pay gap, many would argue that mandatory equal pay reviews are an essential component of the strategy.
CONTRACTUAL AND NON-CONTRACTUAL PAY MATTERS
A single equality Bill logically would include the right to equal pay, but would a separate regime for equal pay be maintained, or would the right be based on an anti-discrimination model?
What the DLR says
"…abolishing the approach followed in the Equal Pay Act and adopting a new approach in relation to contractual pay and benefits would obscure the links with current equal pay case law. Cases under the new approach would take more time to be resolved, especially as they would probably be appealed until new principles were established. Any benefits of simplification are therefore unlikely to be seen in the short term. A move away from the contractual law approach would also have the effect of removing the certainty of the claimant's continuing entitlement to equal pay.
"Moving away from the contractual approach would also mean that the employer could potentially face liability not only for the claimant's past financial losses (which might exceed six years' arrears) but also broadly unlimited aggravated or exemplary damages, damages for injury to feelings and any other injury suffered by the claimant as a result of the discrimination. In many cases, structural differences in pay may have evolved over a long period, with no deliberate discriminatory intent. This is particularly true in relation to equal pay for work of equal value. We therefore consider that this would be an excessive and unfair burden on employers.
"We therefore propose to bring equal pay provisions within a single equality Act but retain the current distinction between contractual and non-contractual pay matters."
EOR verdict
We put the positive case for merging the Equal Pay Act into a discrimination statute in Time to repeal the EqPA. In addition to complicating the law by imposing a regime of different time limits, different defences and different remedies, the Equal Pay Act as drafted precludes any challenge to discriminatory undervaluation of women's work where there is no comparator employed on equal work.
The DLR's response is entirely unconvincing. Two reasons for keeping the same structure are given. The first is that change would create uncertainty about the existing case law, a consideration with virtually every Act of parliament. The second is that an employer could face "unlimited" aggravated or exemplary damages and damages for injury to feelings, even where there was "no deliberate discriminatory intent", which would impose an "excessive and unfair burden" on employers. This is legally improbable. Aggravated or exemplary damages would not be awarded unless there was deliberate discriminatory intent, and there is no reason to think that awards for injury to feelings would vary substantially from the very modest awards now made on average (see Compensation awards 2006: part 1 ).
The green paper asks whether the distinction between contractual and non-contractual pay matters should be retained.
CLARIFYING AND SIMPLIFYING EQUAL PAY LAW
Equal pay law is notoriously complex, as any reader of EOR knows.
What the DLR says
"We will also clarify and simplify the law as far as possible. One of the ways we will achieve this is to include on the face of the legislation settled principles of equal pay law, set out in judgments which have been accepted and applied by the courts and are unlikely to be challenged. Some key principles we consider it would be helpful to clarify in legislation include:
EOR verdict
Government green papers are not noted for their sense of humour, so we must assume that this proposal is serious. Thirty years of case law, involving a series of judgments by some of our greatest judicial minds, have not clarified the case law on, for example, "what constitutes a defence" to unequal pay, so discrimination lawyers will look forward with great expectation to what the draft single equality Bill says in this regard.
HYPOTHETICAL COMPARATORS IN EQUAL PAY CASES
Whereas anyone claiming sex, race, sexual orientation, religious or age discrimination can compare themselves with a hypothetical comparator and argue that the employer would treat that comparator more favourably than they were treated, those claiming sex discrimination in pay must point to an actual comparator. The Women and Work Commission asked the DLR to consider whether hypothetical comparators should be permitted in equal pay claims.
What the DLR says
"We consider that there is a combination of practical and legal reasons why hypothetical comparators should not be permitted in equal pay cases. In practice, claimants may find it difficult to provide tribunals with evidence of the pay or benefits that a hypothetical comparator would have received. This would in turn affect their ability to show that the principle of equal pay had been breached. The evidential problems could be most acute in equal value claims where a woman would have to show that a hypothetical man, paid from the same source as her and doing work of equal value, would have been employed under more favourable contractual terms. There are likely to be very few situations where a woman could make out such a case… Taking account of the uncertainties that hypothetical comparators would create, and the potential for significant numbers of unsuccessful claims which would still incur litigation and processing costs, we are not persuaded that allowing the use of hypothetical comparators would give any benefit in practice."
The green paper asks: "Do you agree that allowing the use of hypothetical comparators would be unlikely to give any benefit in practice?"
EOR verdict
The inability to use a hypothetical comparator limits the ability of women in gender-segregated workplaces to bring equal pay claims.
The DLR's somewhat strange argument that the law should not allow such claims because few are likely to be successful really does not stand up to scrutiny on its merits. A hypothetical comparator would seem to be highly relevant in many of the public sector equal pay claims that are currently being litigated - for example, in cases where the claimant's work has been rated as equivalent to that of her comparator under a job evaluation scheme, but they are no longer in the same employment because of a public sector reorganisation, or because the work of one of them has been contracted out to the private sector.
A PURPOSE CLAUSE
The Disability Rights Commission (DRC), the Equal Opportunities Commission and the Commission for Racial Equality (CRE) jointly issued a statement earlier this year urging that the proposed single equality Act should include a clause setting out its purpose and principles. According to the three statutory enforcement agencies, a purpose clause "would greatly aid public understanding of legislation, and have an educative role by providing an important statement of basic principles".
What the DLR says
"Purpose clauses are not common in British legislation and some argue that they risk causing confusion about the meaning of the substantive provisions setting out specific and carefully defined rights and obligations. This is a particular risk where a purpose clause is a mainly rhetorical statement setting out the general social policy aims of the legislation. Nonetheless, we think it is important that the Act should be drafted clearly, and in a way which makes clear the results it is intended to achieve."
EOR verdict
Purpose clauses setting out the goals and underlying aims of the legislation have been used to good effect in other countries. As the joint statement points out, they can give guidance to courts, tribunals and others dealing with the legislation as to how it should be applied and interpreted. Because it would be part of the legislation itself, it would have a clearer status than recitals to EU Directives.
The joint statement from the statutory agencies set out the following illustrative purpose clause:
"The purposes of this Act are - (a) to prevent discrimination on any of the grounds, whether singly or in any combination, and ensure that every person has an equal opportunity to participate in society, including by means of different treatment as required or permitted by the Act;
(b) to secure full equality in practice and promote the social inclusion of individuals and groups by (i) eliminating and preventing patterns of systemic discrimination and inequality; and (ii) the adoption of measures to alleviate the disadvantage related to any of the grounds singly or in any combination;
(c) to ensure respect for and protection of the human dignity of every person;
(d) to provide effective remedies for victims of unlawful discrimination, harassment and victimisation; and
(e) to promote good relations between individuals and groups."
POSITIVE ACTION
The DLR devotes considerable space to discussing positive action issues, what it calls "balancing measures", adopting the terminology of the Equalities Review (Equalities Review wants procurement and positive action).
What the DLR says
"In the government's view, there is scope to expand the measures to help address disadvantage, not only in the employment sphere but also in other areas such as education, the provision of goods, facilities and services, and the exercise of public functions. Such an approach might allow, for example, the fast-tracking through initial training of under-represented groups from an equally qualified pool (ie those who had already met all the entrance criteria, passed the relevant tests of physical and other fitness, and been accepted for initial training) to speed up the achievement of a more representative police service. This would be subject to the limitations imposed by European law. Positive discrimination - such as quotas for recruitment or progression - would continue to be unlawful.
"The use of this kind of balancing measure would remain voluntary. This is to avoid imposing additional regulatory burdens on private sector organisations. However, there might in some cases be a greater expectation on public authorities to use such balancing measures to promote equality under public sector equality duties… In any event, such balancing measures would provide an important tool for public authorities to use to promote equality.
"We do not propose to put details of measures which will always be regarded as falling within the positive action provisions on the face of legislation; this would depend on the facts of each case."
The green paper asks: "Do you agree that it would be helpful for organisations seeking to make progress towards their goals of tackling under-representation and disadvantage to be able to use a wider range of voluntary balancing measures?"
EOR verdict
The government's ability to legislate to widen the scope for positive measures was enhanced by the 2002 revision to the EC Treaty. Article 141(4) of the treaty provides: "With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any member state from maintaining or adopting measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers."
The limits of such compensatory measures have yet to be explored, and it might have been expected that proposals to expand the scope for positive measures would be a central theme of the DLR. This was especially the case because the Equalities Review, while rejecting positive discrimination, expressly concluded that "there is a case for introducing time-limited, proportionate, balancing measures of a type that are not currently permissible under UK law." The Equalities Review went on to recommend to the DLR "that it proposes the repeal of existing legislation that limits positive action (to measures such as targeted advertising of posts, special training and work experience opportunities, and so forth); and that it proposes to include balancing measures in a new single equality Act, consistent with the wider possibilities under EU law (which would include, for example, the ability to take action in recruitment and progression)."
The DLR says that the government is in favour, in principle, of balancing measures "to prevent or compensate for disadvantage or to meet special needs linked to the protected ground", but the proposals as to just what will be allowed compared with now are vague and broadbrush.
The Commission for Equality and Human Rights (CEHR) is to be asked to develop "clear and consistent guidance on the scope for balancing measures generally", but it must be questionable whether this will result in any significant change without a legislative foundation defining more precisely when positive action will be lawful.
SINGLE PUBLIC SECTOR EQUALITY DUTY
Public authorities are now subject to separate race equality, disability equality and gender equality duties. With consideration being given to introducing similar duties in respect of the other discrimination strands, one of the main issues for the DLR is that of whether there should be a "generic" public sector duty covering all the strands.
What the DLR says
"We consider that the existing duties could be brought together to provide a single, effective lever for addressing discrimination and disadvantage. A single public sector equality duty would be simpler and more practical for public authorities to implement. We therefore propose to replace the different duties on race, disability and gender equality with a single duty on public authorities."
The green paper asks whether or not consultees "agree that the race, disability and gender equality duties should be replaced with a single duty on public authorities to promote race, disability and gender equality."
EOR verdict
As the three existing duties have somewhat different features, it makes sense to combine them into a single equality scheme. Much more controversial, however, is the extent to which this will lead to a substantive change in the nature of the duties. That is discussed below.
CONTENT OF A SINGLE EQUALITY DUTY
The current duties, in broad terms, impose a general duty on public bodies requiring them to have "due regard" to the elimination of unlawful discrimination and to promoting equality of opportunity. The general duties are supplemented by specific duties, such as those relating to monitoring and requiring the public authority to publish equality schemes setting out the actions it will take to fulfil its general duties.
What the DLR says
"We … propose to develop an approach in the legislation which places on public authorities a clear requirement to identify priority race, disability and gender equality objectives and take proportionate action towards their achievement."
The green paper asks consultees whether or not they agree with this proposal.
EOR verdict
The current requirement to have "due regard" to the elimination of unlawful discrimination and promoting equality of opportunity impacts on every decision of a public authority. Equality impact assessments are the embodiment of the concept of mainstreaming. It makes sense for public authorities to identify their priority equality objectives, and to take proportionate action to achieve them, but this should be in addition to, and not at the expense of, the obligation to assess the impact of all decisions on race, gender and disability equality.
Commenting on the green paper, DRC chair Sir Bert Massie said: "It proposes to virtually destroy the disability equality duty."
REPLACING SPECIFIC DUTIES
The current public sector equality duties include specific duties placed on certain public authorities through secondary legislation.
What the DLR says
"We consider that the four key principles which underpin effective performance of public sector equality duties are:
"Our proposed approach would therefore mean that the law would no longer specifically require, for example, employment monitoring of different racial groups, but would instead set out the key principles which support effective performance of a single equality duty, and require these to be applied proportionately. This would give public authorities greater autonomy in determining their priority equality objectives and how they will be achieved, by reference to their particular functions and the communities they serve, while ensuring that the duty is performed in an inclusive, evidence-based and transparent way."
The green paper asks whether this new approach is preferred to an extension of the type of specific duties adopted so far in the race, disability and gender equality duties.
EOR verdict
The proposal to relieve public authorities of specific duties, such as that of monitoring their workforce, has produced considerable disquiet and led to charges that the DLR is proposing to step backwards. Thus, Razia Karim, head of legal policy for the CRE, has commented: "The proposals in the green paper on the public sector duty with regard to race equality are a repudiation of the Stephen Lawrence inquiry. We are seriously concerned by the proposals and are calling for a fundamental review."
The DRC has pointed out that: "At present most public authorities have to produce three-year schemes with detailed requirements including monitoring and showing what steps they will take to promote equality - and they must involve disabled people in these schemes. The green paper proposes a far less specific requirement - that will be far harder to enforce and far harder for disabled people to use to hold authorities to account. It proposes instead 'principles' to 'underpin effective performance of public sector duties'. The involvement of disabled people will be a 'principle' instead of a legal requirement."
EXTENDING COVERAGE OF THE DUTY
The DLR raises the possibility of extending the public sector equality duty to the three new strands.
What the DLR says
The green paper asks whether a single public sector equality duty should be extended to cover age, sexual orientation and/or religion or belief.
EOR verdict
It must be appropriate that each of the discrimination strands is treated more or less in the same way.
PUBLIC SECTOR PROCUREMENT
The current public sector equality duties apply in respect of procurement, because procurement is a function of public authorities.
There are both EU and UK rules governing the extent to which a public authority can take non-commercial considerations into account in awarding contracts. One of the suggestions made to the DLR was that the law should allow contractors who have been found to have discriminated unlawfully to be disqualified from tendering for public contracts.
What the DLR says
"Mandatory disqualification is a blunt tool which risks biting on, for instance, onetime offenders who have put their house in order. However, the EU procurement Directives already allow public authorities to disqualify a contractor from tendering for a contract if he or she has committed an act of grave misconduct in the course of his or her business or profession. Where supported by the facts, this could include a finding of a serious breach of discrimination law. This leaves the question of disqualification from the procurement process to the discretion of the public authority on a case-by-case basis, where objectively justified."
EOR verdict
There is no doubt that procurement is an increasingly important lever for promoting equality and eliminating discrimination.
However, as the Equalities Review pointed out: "The arrangements for buying goods and services (which are governed by EU procurement rules and guidance from the Office of Government Commerce) give only limited support to making equalities a factor in public procurement."
The approach of the DLR to procurement is somewhat ambiguous. There are no proposals, as such, for a change to the statutory framework. On the other hand, the DLR gives a broad hint that at least in some circumstances, a public authority would be entitled to disqualify a firm as a prospective tenderer if it was found to have discriminated. Whether or not a public authority can go further is considered below.
PRIVATE SECTOR EQUALITY STANDARD
In contrast to the 30 pages devoted to the public sector equality duty, only four pages are devoted specifically to the private sector. No change in the law affecting the private sector is proposed. Probably the most interesting suggestion relates to a voluntary equality standard.
What the DLR says
"We are also considering whether there is a case for introducing a voluntary equality standard scheme which would set out what businesses, as both employers and providers of goods and services, need to do to comply with discrimination law and achieve higher standards of good practice on equality and diversity. This might take one of two forms:
The green paper asks whether an "equality standard" would be beneficial to businesses, employees and customers. "Would you prefer an independently assessed accredited standard or a non-accredited good practice and compliance tool?"
EOR verdict
The first option for an equality standard set out above is one of the few positive suggestions in a report that largely focuses on the reasons for not taking a particular action.
In particular, the idea that some form of accreditation could be used as evidence of compliance with discrimination law is especially intriguing. It opens up possibilities, for example, for public authorities to adopt some form of pre-qualification system for contractors whereby, if they met equality standards laid down by the public authority, they would be treated as automatically entitled to tender.
MONITORING AND REPORTING
In Northern Ireland, all employers with more than 10 employees are required to monitor and report on the religious composition of their workforce, and there have been suggestions that the DLR should recommend that this should be a specific statutory requirement generally in respect of all the strands.
What the DLR says
"A reporting regime which could guarantee the necessary degree of accuracy would be bureaucratic, burdensome on employers and costly to run and enforce."
EOR verdict
Monitoring of workforce statistics has been seen as a key component of an effective equal opportunities policy for many years. This is reflected in the statutory codes of practice. Thus, the CRE's code of practice, Racial equality in employment, recommends employers to "monitor workers and applicants by racial group". The CRE goes on to explain that "monitoring, by racial group, gives employers the information they need to understand how their policies, practices and procedures in the field of employment affect people from different racial groups."
Disappointingly, the Equalities Review said: "We do not think it reasonable at this point in time to extend to the private and voluntary sectors as a whole a duty to report on their achievements of equality outcomes." The DLR adopts the same approach.
TRIBUNAL RECOMMENDATIONS
One of the main terms of reference of the DLR was that it was going to carry out "an investigation of different approaches to enforcing discrimination law". In so far as employment discrimination disputes are concerned, one suggestion that has frequently been put forward is that the powers of employment tribunals to make "action recommendations" should be expanded.
Where a claim of discrimination is upheld, an employment tribunal is empowered to make "a recommendation that the respondent take within a specified period action appearing to the tribunal to be practicable for the purpose of obviating or reducing the adverse effect on the complainant of any act of discrimination to which the complaint relates". Failure to comply with such an "action recommendation" can lead to an increased award of compensation.
The power to make an action recommendation, however, is linked to its effect on the individual claimant, and this provides a major limitation on its efficacy as a remedy. It means, for a start, that a recommendation can never be made if the claimant is not in the employer's employ, either because the discrimination related to selection arrangements and recruitment or because the claimant was dismissed or resigned. In such circumstances, a recommendation would not have any "effect on the complainant" and therefore cannot be made.
What the DLR says
"When the Discrimination Law Review began in February 2005, discrimination claims heard in the employment tribunal - in other words, those that relate to the workplace - were part of its remit.
"In December 2006, the Department of Trade and Industry (DTI) announced a wide-ranging, independent review of all aspects of employment dispute resolution, led by Michael Gibbons …
"It was clearly appropriate for the dispute resolution review to take account of the work we had already done on discrimination disputes in the workplace, which included … consideration of whether to enable employment tribunals to make recommendations about discriminatory policies and practices for the benefit not only of the claimant but also others who may be affected by the acts of discrimination proved in the case, with a view to helping organisations comply with the law and avoid future claims."
EOR verdict
There is a powerful case for strengthening the action recommendation provisions so as to allow a tribunal to make recommendations that it regards as appropriate to ensure that similar acts of discrimination do not recur, regardless of whether such a recommendation would have an effect on the claimant in question. A tribunal might, for example, recommend that an employer that lost an equal pay claim should introduce or modify a job evaluation scheme, or that an employer that was found to have discriminated on grounds of race in recruitment should alter its interviewing arrangements. Such recommendations could help employers comply with the law and avoid future claims.
It is extremely disappointing that the DLR abdicates all responsibility for any proposals as to remedies for employment discrimination claims. If the Gibbons review team has any particular expertise in discrimination issues, it was not apparent from its report.
In point of fact, the Gibbons review itself (Better dispute resolution: A review of employment dispute resolution in Great Britain) does not appear to say anything about whether tribunals should be able to make broader action recommendations.
Nevertheless, the proposal was rejected by the DTI in its consultative document, Success at work: Resolving disputes in the workplace, issued at the same time as the Gibbons review. This says that the DLR looked at the suggestion "that the existing powers of employment tribunals to make recommendations about discriminatory practices should be made available in a wider range of circumstances, so that tribunals could make recommendations aimed at protecting not just the claimant, but also others who could be affected by the acts of unlawful discrimination which have been proved in the case… The government has considered this idea carefully in the light of the evidence heard by the Discrimination Law Review, and the findings of the Gibbons review. The policy aim underlying the idea, of spreading good practice and helping employers to understand their obligations under the law, is a good one. However, the government has concluded that widening the scope of the power to make formal recommendations is not the most appropriate way of achieving this, since the policy aim can be better addressed through advice and guidelines for employers on employment law. As part of its work on employment law simplification, the government is currently considering how best to improve such advice and guidelines."
The DTI consultation (not the DLR consultation) asks: "Should the government aim to promote employers' compliance with discrimination law through better advice and guidance, rather than by widening the powers of employment tribunals to make recommendations in discrimination cases?"
VENUE FOR GOODS, FACILITIES AND SERVICES CASES
Only a handful of cases are brought each year claiming discrimination in respect of access to goods, facilities and services. One reason for this may be because such a claim has to be brought in the county court (sheriff court in Scotland) rather than in an employment tribunal.
What the DLR says
"We are not attracted by proposals made by some stakeholders for allowing goods, facilities and services cases to be dealt with within the tribunal system, using the discrimination law experience of employment tribunal chairs and members. This would divert specialist resources from the employment tribunals and would create significant jurisdictional problems, for example where claims of discrimination in goods and services are combined with other claims for civil wrongs which would still have to be heard in the courts.
"We are therefore considering how discrimination expertise could be enhanced in the county and sheriff courts. One possible approach would be to designate certain courts to hear all non-employment discrimination cases. Within those courts, a small number of judges could be provided with specialised training in discrimination law and would then be charged with hearing all discrimination cases. This would lead to the creation of centres of discrimination expertise, as designated courts and judges built up their experience and expertise of dealing with discrimination cases."
EOR verdict
The division in jurisdiction to hear discrimination claims between the employment tribunals and the county courts was originally based on differences in expertise. The county courts were given jurisdiction over non-employment matters because of their ostensible expertise in contract issues.
It has long been recognised, however, that there are unsatisfactory consequences of this division. In particular, whereas by hearing tens of thousands of employment discrimination claims each year, the employment tribunals have developed considerable experience (and therefore expertise), far fewer goods, facilities and services discrimination claims are brought before the county courts and, accordingly, there is far less chance of a county court judge developing discrimination expertise. This has resulted in unpredictability and decisions of variable quality, which in itself acts as an important disincentive to bringing claims. The government's own estimate is that across the strands there are only 50-100 claims of discrimination in the provision of goods, facilities and services brought each year, and indeed the very lack of statistics draws attention to the problem.
One of the reasons for the scarcity of cases may be that it costs a minimum of £210 to commence proceedings in the county court, with additional charges at each stage. In addition, unsuccessful county court claimants can be liable for the legal costs of the respondent.
The DLR might have been expected to heed calls for the jurisdiction over goods, facilities and services claims to be transferred to employment tribunals. Its reasons for rejecting the proposal are not persuasive. Discrimination claims under the present system often can raise issues that have to be adjudicated in more than one forum, such as where there is a claim for personal injury arising out of discrimination. Given that there are "very few" goods, facilities and services claims, it is difficult to see why the proposal should have significant resource implications.
That said, the DLR's proposal that certain county courts with specially trained judges should be designated to hear all non-employment cases would be an improvement over the existing system.
Where there is a common discrimination problem affecting a group of people, one way of improving remedies would be to allow representative actions brought by a trade union or the CEHR, for example, rather than requiring each individual affected to bring their own proceedings.
As with the tribunal powers to make recommendations, the DLR takes the position that the Gibbons review has authority over representative actions in employment cases. The DLR did consider, however, whether representative actions should be considered in goods, facilities and services cases.
What the DLR says
"…a number of stakeholders, including business, have expressed reservations about creating a further mechanism for litigation.
"Representative actions are oft en seen as a major factor in developing an undesirable 'litigation culture'. Although they may assist those with legitimate claims, the system can also benefit those with spurious claims, who may not even have felt aggrieved until encouraged to join a representative action. Representative actions on behalf of a group of unnamed individuals are also particularly difficult to quantify, making it hard for an organisation to consider early settlement proposals which would keep legal costs down.
"Having considered the arguments carefully, we are not persuaded that there is a good case for establishing this further mechanism."
EOR verdict
Representative actions can provide a remedy for victims of discrimination who are unable or unwilling to bring an individual claim, they can offer a more efficient use of resources for trade unions and the enforcement agency, and, by raising the stakes, they can provide a powerful incentive to employers and service providers to get their policies and practices right.
The Gibbons review said that it "has heard strong views that representative actions can encourage speculative and spurious claims". No empirical evidence beyond the "strong views" of unspecified persons is put forward to support this assertion.
CHANGE TO THE DEFINITION OF DISABILITY
One of the overall aims of the DLR is to simplify the law. The DDA's definition of disability is notoriously complex.
What the DLR says
"We intend to simplify how the definition of disability operates in relation to 'normal day-to-day activities'. The [DDA] does not define normal day-to-day activities, but it requires that they must affect one or more of a number of factors including mobility, manual dexterity, speech, hearing and eyesight, which are referred to in statutory guidance as 'capacities'. This requirement was included in the [DDA] in 1995 as there were concerns that, without such a qualification, the protection of the Act would be too wide-reaching. In practice, this concern has proved unfounded.
"There is also evidence of confusion about the purpose of the list of 'capacities' and it has often incorrectly been described as a list of normal day-to-day activities. Furthermore, it has sometimes proved difficult for some people, particularly those with a mental impairment, to show how their impairment affects one of the 'capacities'. In order to put this right, we propose to remove the list of 'capacities' from the definition of disability."
The green paper asks for "comments on whether we should remove the list of 'capacities' from the definition of disability".
EOR verdict
The definition of disability was simplified by the DDA 2005 (Disability Discrimination Act 2005: an EOR guide), which removed the requirement for a mental illness to be "clinically well-recognised". The change proposed in the DLR would relieve claimants of the burden of fitting their impairment into one of the list of capacities, and would allow tribunals to take a broader view of where an impairment has a substantial and adverse effect on the claimant's ability to carry out normal day-to-day activities.
NON-EMPLOYMENT AGE DISCRIMINATION
Unlike all the other strands, there is no legal protection from age discrimination in the provision of goods, facilities and services, premises, education or the exercise of public functions. A central issue for the DLR is whether or not the prohibition against age discrimination should be extended to areas outside employment.
What the DLR says
"In this chapter we call for evidence of unfair discrimination outside the workplace, and seek views on the following issues and proposals:
(a) whether legislation is the most appropriate and proportionate way of addressing the needs of older people and preventing harmful age discrimination outside the workplace;
(b) how, if we do legislate, we can avoid unintended consequences and disproportionate burdens;
(c) if we do decide to legislate, we propose to:
- exclude children (ie people under 18) from the scope of any protection;
- make provision for objective justification of age discrimination;
- include positive action provisions;
- exclude a significant number of beneficial or justifiable activities, which legitimately treat people differently because of their age…
"We recognise that legislation could send out a strong signal that discriminating unnecessarily on grounds of age is unacceptable and thereby help to change cultural attitudes to ageing, as well as providing a means of redress for individuals who experience harmful age discrimination. However, we are not yet convinced that legislation is necessarily the most appropriate way to tackle age discrimination in these areas."
EOR verdict
No area better illustrates the highly conservative approach adopted by the DLR to most questions than the reluctance to extend the rights accorded to all the other protected grounds to people discriminated against on grounds of age.
This is despite the acknowledgement in the DLR that there is evidence that some people experience unjustified discrimination in the provision of goods, facilities and services because of their age. "This can mean, for example, inferior service from providers of goods and services, or restricted access to financial products, simply on the basis of age and without objective justification… There is also evidence that older people in particular are not always treated with dignity and respect, for example, in relation to care services, either at home or in residential care."
Instead of recommending statutory rights, the green paper says that "we are … particularly concerned that legislation would place undue regulatory burdens on business and run counter to the government's commitment to better regulation. It might instead be more appropriate to work with relevant sectors to agree specific measures to deal with any areas of concern, such as the provision of insurance and financial services."
The fact that the non-enforceable, voluntary age discrimination code of practice had no discernible impact seems not to have had much impact on the DLR's authors.
IMPLEMENTING THE GENDER DIRECTIVE
The green paper also sets out the government's plans to transpose EU Directive 2004/113 (the Gender Directive), which implements the principle of equal treatment between men and women in the access to and the supply of goods and services.
Draft Regulations have been issued amending the Sex Discrimination Act. These will be covered in a future edition of EOR.
1. Discrimination Law Review: A framework for fairness: proposals for a single equality Bill for Great Britain, www.communities.gov.uk/publications/communities/frameworkforfairnessconsultation.