My month

This diary column, written by EOR's new publisher, will be a regular feature in future issues.

New EOR for a new era

There is no doubt about what was the biggest event in my month. In early October, my company purchased EOR and EOR Direct from Reed Business Information. As explained on the inside front cover of this edition, we have lots of plans for developing EOR and its website, with the aim of ensuring that we are able to provide the most comprehensive, up-to-date, accurate reporting and analysis of the developments in the world of equality, diversity and discrimination law.

To quote the famous New York Yankees catcher, Yogi Berra, "this is like déjà vu all over again". In January 1971, I wrote an editorial for the first edition of Industrial Relations Review & Report, headed "A new journal for a new era". This referred to the industrial relations legislation then going through Parliament, including the right not to be unfairly dismissed and a right to trade union recognition. Now we are entering the new era of a single equality commission, with the prospect of single equality legislation ahead of us.

EHRC

This month, we bade farewell to the Commission for Equality and Human Rights (CEHR) and welcomed the new Equality and Human Rights Commission (EHRC). Now that it has decided what it wants to be called, the new commission has the monumental tasks of integrating three former statutory commissions and taking on enforcement of the law in respect of the three new strands that have not been covered by a statutory agency until now.

On 1 October, the EHRC inherited some 380 staff by way of TUPE transfers from the CRE, DRC and EOC. Having just gone through a very small TUPE transfer myself to purchase EOR, I have a lot of sympathy with those running the new commission. It would be unreasonable to expect a huge amount of new initiatives right off the bat and they deserve some time to settle down in their early months. EOR will be following the activities of the new commission closely.

Equal pay

Both the EOC and the DRC kindly invited me to the bitter-sweet farewell drinks receptions for their legal teams. Much talk at the EOC farewell legal reception was about equal pay. Outgoing chair Jenny Watson had issued her suggestion for a temporary amnesty for employers. She proposed that in return for accepting a legal obligation to check that their pay systems are free from discrimination and are taking "robust" steps to put their house in order should they find they have a problem, "employers should have some breathing space from individual claims for a limited period".

I can see the benefits that such a proposal would have and understand the frustration that prompts it, but the proposal is a complete non-starter. Even if a UK government could be persuaded to amend equal pay law to provide for a second transition period (we did have one from 1970 to 1975), there is no way that depriving women of their right to bring a claim before an employment tribunal would be compatible with current EU law, and no prospect that EU law would be changed to allow employers a "breathing space".

DRC book

The award-winning legal team at the Disability Rights Commission, headed by Nick O'Brien, was especially outstanding.

The "Legacy Edition" of the DRC's Legal Bulletin was launched at its farewell legal reception. This is called DRC Legal Achievements: 2000-2007. Edited by Martin Crick, it contains fascinating articles from DRC staffers and outside experts on the DRC's legal work (and a contribution from me on "why the DRC's legal strategy succeeded"). The emphasis is on the lessons for the new commission that can be drawn from the DRC's experience. The book is available from the EHRC website:www.equalityhumanrights.com.

Associative discrimination

One of the DRC's legal legacies to the EHRC is Coleman v Attridge Law. For the sex, race, religion and sexual orientation strands, discrimination on the prohibited ground extends to discrimination for a reason based on that ground and therefore covers discrimination by reason that a person associates with someone in a protected group.

The Disability Discrimination Act, however, is asymmetrical in that it protects only "disabled persons". Coleman asks if this is compatible with the Framework Employment Equality Directive's prohibition of discrimination "on grounds of disability". The claimant was a legal secretary with a disabled young son requiring care, who seeks to claim that, as a result, she was subjected to unfair treatment and harassment by her employers.

The case is being run by Lucy McLynn of Bates Wells Braithwaite LLP, a new member of EOR's Advisory Panel, and supported by the EHRC. The hearing before the Grand Chamber (ie full court) of the European Court of Justice was on 9 October. The UK government, which did not meet the deadline for making a written submission to the ECJ, decided at the last minute to send counsel to argue that the DDA complies with EU law. Historically, the UK government has invariably defended UK legislation in the social affairs field when it has been challenged in the ECJ, the constitutional theory being that it is for the UK Parliament to change UK legislation.

That made the failure to enter a representation in Coleman striking. In the event, the UK was supported by the Irish, Greek and Dutch governments. Ms Coleman was supported, however, by the European Commission. Like the DDA, the age discrimination Regulations do not provide protection against associative discrimination. So the outcome of the Coleman case will have important implications for the rights under discrimination law of those who care for disabled or elderly relatives.

Religious discrimination

Sainsbury's has received a lot of publicity, much of it unfavourable, for deciding to allow Muslim check-out workers who object to handling alcohol on religious grounds to have a colleague take their place. This has been criticised as giving in to religious extremism and as bending over backwards to be politically correct.

The company sees it as just common sense. It told me that its policy is to ask on the application form if candidates have any issues handling certain products. This could be for religious or medical or other reasons. Most available jobs do not involve a potential conflict, and most religious employees do not object to handling products that they would not consume. But if they do, and the candidate is otherwise suitable, then Sainsbury's tries to accommodate their beliefs. This would apply to those who object to selling alcohol, or who object to dispensing birth control pills for example.

DLR

The government issued the Discrimination Law Review (DLR) on 12 June, and all the stakeholders had to devote considerable time over the summer to try to meet the 4 September deadline for the end of consultations (though a few were given extensions). I have in my office a pile of responses; they include the submissions of the EOC (140 pages), CRE (127 pages), the Discrimination Law Association (123 pages) and the Greater London Authority (105 pages). We will be looking at some of the key points in our December issue. For the most part, the government's suggestions for what will go into a single equality Bill have met with a negative response. The word on the street is that the detailed proposals in the DLR may be scrapped by the new minister responsible, Harriet Harman, and civil servants told, in effect, to start again.

Sex discrimination legislation

The government has resiled on its commitment to amend the Sex Discrimination Act by 1 October so as to comply with the judgment of the High Court in the judicial review proceedings brought by the Equal Opportunities Commission (EC Directive not properly implemented). Mr Justice Burton held that the amendments made to the Sex Discrimination Act (SDA) by the 2005 Regulations implementing the revised Equal Treatment Directive did not comport with the requirements of EU law in a number of respects. These included the new free-standing definition of harassment, the requirement for a comparator in pregnancy discrimination cases, and rights during additional maternity leave.

It is the maternity leave issue that is believed to have held up the revised Regulations. Whereas all the contractual rights of a woman on ordinary maternity leave continue to accrue apart from remuneration, only the basic characteristics of the contract continue when a woman is on additional maternity leave. This was challenged as being inconsistent with the European Court's decision in Land Brandenburg v Sass , in which the ECJ said that the fact that legislation grants maternity leave of more than the minimum of 14 weeks laid down by the Pregnant Workers Directive does not preclude that leave from being considered to be maternity leave as referred to in the Directive and, therefore, a period during which the rights connected with the employment contract must be ensured.

Mr Justice Burton said the amended SDA "should be recast so as to provide that claims which are permitted by virtue of … Sass should not be excluded". The government has to decide whether or not that means that there can no longer be any difference between ordinary statutory maternity leave and additional statutory maternity leave. The Women and Equality Unit has said the amendments will now be made at "the earliest possible opportunity".

If the government follows the practice of amending employment legislation only twice a year, that would not be until April 2008, though there is a continuing risk of a damages claim from those who lose out as a result of the failure to apply the law correctly.