The new Single Equality Act should provide a clearer, more streamlined legal framework which is more effective at tackling disadvantage and discrimination
Underpinning principles
The Single Equality Act should be predicated on a set of fundamental principles which provide the basis from which the rest of the Act derives its philosophical context and the reasons for its rules and procedures. It is against these basic principles that the provisions of the Act should be understood, applied and interpreted.
A constitutional guarantee
There is a need for a guarantee of equality to place the right to equality and protection from discrimination on a constitutional footing. Such a guarantee would mainstream equality in the exercise of all functions of the State, including the legislature and the judiciary and allow for more transparent law making.
The public sector equality duty
1. Scope of general and specific duties
- The three existing equality duties should be brought together into a Single Duty and be extended to cover sexual orientation, religion or belief and age.
- The new duty should incorporate elements of the existing duties - including rolling out to the whole of GB the duties in Scotland on Ministers to identify and review priority areas for improvement in equality. Any new formulation should not dilute the existing duties.
- The new duty should be clear, enforceable, proportionate and focussed on achieving the best equality outcomes. In order to ensure that public authorities achieve the desired outcomes certain processes will need to be carried out eg analysing impact of policies and practises on the promotion of equality; gathering and analysis of relevant data etc.
2. National Objectives
The introduction of national objectives could maximise the impact of the duty in tackling intractable issues of discrimination, such as unequal pay, across public authorities which work in a particular field and could be used by inspectorates to assess compliance.
Inspectorates
There should be a separate statutory duty on listed public service inspectorates to audit or inspect public authorities’ compliance with the equality duty to overcome the current patchy approach.
Procurement
Designated public authorities should be required to incorporate equality considerations into all aspects of their procurement of works, goods and services, as appropriate. Such a requirement would be complimentary to the public sector duty and would send a clear, unequivocal message to the Office of Government and Commerce to be incorporated into their policies and guidelines; to public authorities as purchasers and private sector suppliers. It would make compliance a matter that the public service inspectorates would automatically examine.
Private sector
Some 80% of the British workforce is employed by the private sector and the Equalities Review revealed stark inequalities in the labour market. The Commission regards equality and non-discrimination as fundamental social rights and believes that the reliance on voluntary measures as proposed by the DLR will not lead to the necessary change of culture and practise, thus allowing inequalities which affect large sections of British society to continue. Therefore, the Commission recommends that there should be limited compulsory obligations on the private sector to review employment practices annually; monitor the composition of the workforce, pay and benefits; produce a tri-annual plan to show how they propose to comply with equality law and improve representation where appropriate; and to publish the results of monitoring data.
Definitions and exceptions
- For consistency, clarity and equity, the new Equality Bill should use common definitions across all protected grounds, including multiple/intersectional grounds, (unless there is an objective justification for adopting another approach) and meet the requirements of European law.
- Protection against discrimination based on perception and association should be applied to all protected grounds, not just a few, and protection against harassment should apply to all grounds and in relation to all activities covered by the Act.
- There should be an extension of protection against discrimination and harassment on grounds of age – which is applicable to all ages - to all areas covered by the Act. Direct age discrimination in goods, services, premises, education and public functions should be permitted where it is objectively justified.
- The positive action provisions should be as broadly drawn as possible to facilitate the fulfilment of the aims of the legislation. A requirement for review and time limits should be built in as such action would become unlawful once their objectives had been achieved. EHRC should produce a Code of Practice to provide guidance on what action is permissible under the new provisions.
- Any exceptions must be justified by a legitimate aim and the means of achieving that aim must be appropriate and necessary. A generic exception test could go some way to simplifying the legislation providing the objective justification requirement is satisfied and it does not inadvertently introduce a justification for direct discrimination where this is not currently permitted. A purpose clause/underpinning principles for the Act would assist users of the Act in interpreting what is permissible under any generic exception.
Access to justice
- The new Bill should allow the Commission, Trade Unions or other representative organisation to bring representative actions on behalf of a group of people who have shared the same unlawful discrimination and who would otherwise make an identical complaint. The Secretary of State should designate appropriate bodies to bring such claims and permission of the court should first be sought.
- There should be a review of the current restrictions that applies to complaints by members of the Armed Forces and complaints of discrimination by qualification bodies as these are the only cases where victims of discrimination may not complain to an Employmet Tribunal without first bringing an internal complaint/appeal.
- Further discussion and consultation is needed on equality tribunals for discrimination cases outside of employment. Cases should be heard by skilled adjudicators with a knowledge and understanding of equality legislation and the effects of discrimination on individuals.
- Lay assessors should be involved in all county court or sheriff complaints. They should be able to take an equal part in final decision making process as do wing members in Employment Tribunals.
Remedies and sanctions
Remedies and sanctions must be effective, proportionate and dissuasive. Further:
- tribunals should be able to order reinstatement/re-engagement in appropriate cases.
- Following a finding of discrimination, Tribunals should be empowered to make recommendations to require the employer to take action to obviate or reduce the adverse impact of such discrimination on people other than the complainant.
- Findings of discrimination in employment tribunals, county courts or sheriff’s courts should be made publicly available – such information would be important to the Commission in relation to our enforcement powers, and to public authorities selecting contractors and licensing and qualification bodies in relation to discharging their public sector duties.