Discrimination Law Review: ‘A Framework for Fairness:

Proposals for a Single Equality Bill for Great Britain’

A response from the Equality and Diversity Forum (EDF)

The EDF is the network of organisations working on age, disability, gender, race, religion and belief, sexual orientation and broader human rights issues.[1] This response reflects the collective views of our members in key areas that we would like the Government to consider.

The Equality and Diversity Forum recognises that the Government has made considerable efforts to counter discrimination in the last ten years – improving the provisions on discrimination in relation to gender and race and ethnic origin and disability and extending protection to religion or belief,and sexual orientation in the fields of employment as well as in the non employment areas, extending protection against age discrimination in the employment field as well as introducing the Human Rights Act 1998. However, these have been introduced in a piecemeal way which has resulted in a complex and contradictory web of legislation which is inaccessible and difficult to access and interpret for employers, businesses and individuals alike.

Consequently, the Government’s commitment to review and simplify the law into a single Equality Act is extremely welcome. However, we are concerned that in some places the consultation’s proposals would weaken existing provisions, that in some parts of the document the intention is unclear, and that in some parts there is a clear case for going further than is proposed.

Background

Although the Equalities Review acknowledges that some progress has been made and that we are now a more equal society than ‘at any time in living memory’, it presents a bleak picture. For example:

  • The average net weekly earnings of Bangladeshi men is half that of white men.
  • In 2005, while 42.5% of all pupils received five or more A*-C grades at GCSE, only 9% of Gypsy/Roma pupil attained this result.
  • The hourly gender pay gap for women is 17%, but for part time women it is 38%.
  • Women’s average income in retirement is only 57% of the average for men.
  • Disabled people are 30% more likely to be out of work compared to non-disabled people.
  • Research indicates higher rates of mental health problems among LGB communities than for the general population.

These are depressing statistics. The Report made clear that, contrary to popular belief, the situation for many groups is not improving or is improving far too slowly. It estimates, at the current rate of progress, that the time needed to eradicate critical inequalities severely challenges any complacency among policy makers and makes urgent action the only possible response.

At the current rate of change we will

  • elect a representative House of Commons2080
  • close the gender pay gap2085
  • close the ethnic employment gap2105
  • end the 50+ employment penaltynot in this lifetime
  • close the disability employment gapprobably never

Plans for a single equality act need to be located in the new integrated human rights and equality agenda, as exemplified by the Commission for Equality and Human Rights (CEHR), by the new approach to equality proposed in the Equalities Review, and by practice in the public sector where work on human rights and equality is increasingly being drawn together (for example via combined human rights and equality strategies and impact assessment processes). This is very important as this is the context in which a new single Equality Bill will be implemented on the ground.

The EDF response to ‘A Framework for Fairness’ focusses on eight key themes, the need for:

  1. a clear and strong statement of purpose and principles in a single Equality Act (not just for the duties) in order to give it overall coherence,
  2. a single harmonised approach to access to goods, facilities and services including provisions on the grounds of age,
  3. a robust single public sector equality duty that covers all grounds but recognises areas of differentiation,
  4. improved provision for the private sector to take responsibility for equality including public procurement,
  5. provisions to explicitly counter multiple or intersectional discrimination,
  6. clarity on the scope for positive action (or balancing measures),
  7. common definitions, tests and exceptions for all grounds, unless clear reasons for differentiation can be shown, and
  8. further consideration of enforcement and access to justice issues including whether more discrimination cases can be dealt with by the tribunal system and removed from the County Courts.

1. Clear Strong statement of purpose

1.1 The EDF considers that a statement of purpose at the beginning of any single Equality Act would be beneficial and give the Act as a whole an overall coherence. It would set out the objectives and goals of the Act and thus provide guidance to those seeking to interpret the Act, both courts and tribunals and employers and service providers.

1.2The Discrimination Law Review (DLR) suggests that such a purpose clause should be adopted for the equality duties, however, we can see no reason why this should be limited to the equality duties alone. The EDF prefers the approach of a purpose clause for the whole Act which would then also apply to the equality duties and we support the Disabilty Rights Commission, the Equal Opportunities Commission and the Commission for Racial Equality proposals concerning purpose clauses.[2]

2. Single harmonised approach to access to goods, facilities and services including provisions on the grounds of age

2.1The EDF welcomes the extension of equality provisions in respect of access to goods, facilities and services to religion or belief and sexual orientation, however, we have consistently sought for a single harmonised approach in this area for all the prohibited grounds.[3] The current laws are both inaccessible and complex, they give more rights to people from some catagories for discrimination than others and key terms are defined differently acording to which type of discrimination is concerned. This makes it difficult for experts, businesses and affected individuals to understand what they need to do in order to comply with the law. We therefore welcome the proposal to extend these equality provisions in respect of access to goods, facilities and services to gender re-assignment and urge the adoption of parallel provisions in respect of age.

2.2The Forum is concerned about the overall exclusion of children under 18 years of age from any provisions under the Equality Act. Whilst different provisions may need to be made in respect of younger persons their wholesale exclusion from any provision is difficult to justify, and we are concerned at the proposal to exclude schools from the operation of these provisions entirely. In particular, we consider that schools should not be able to discriminate on grounds of transsexuality or maternity and pregnancy.

2.3 Legislation to counter age discrimination in access to goods, facilities and services has a vital role to play in establishing a fair and equal society. Substantial evidence exists of the inequalities experienced by older people whether as patients in receipt of health care or social services, as volunteers or in respect of insurance and other financial services.[4] For example:

  • Around 29 per cent of adults report experiencing age discrimination, more than any other form of prejudice.[5]
  • Research suggests that people of 75 years or over are nearly ten times more likely to be refused a quote for motor or travel insurance than people aged 30 to 49.[6]
  • Women over 70 are not invited to breast cancer screening, regardless of clinical need.
  • After publication of the National Service Framework for Mental Health, an additional £1billion was invested in services – but all of this was directed to services for ‘adults of working age’ and none to services for older people.[7]
  • People who become disabled after 65 are not eligible for the Disability Living Allowance or Independent Living Fund.
  • Many older people in care homes are vulnerable to human rights abuses: a recent survey found that 72% of care home residents were immobile or reliant on assistance, 62% were confused and forgetful and 24% were confused, immobile and incontinent.[8]
  • The recent Joint Committee for Human Rights report on the human rights of older people in healthcare graphically illustrated the discrimination experienced by older people in healthcare provision.[9]

2.3There is also evidence of discrimination experienced by younger people. For example, a recent UNICEF report showed the UK ranking overall bottom of 21 industrialised countries for children’s well being[10] and the Stonewall School Report makes it clear that homophobic behaviour is widespread in schools.[11]

2.4The Forum considers that age discrimination beyond the workplace should be prohibited by legislation, although the way in which this should be done will need careful consideration. Consultation with affected groups and service providers will be necessary in order to prevent unintended consequences and the erosion of all currently permitted forms of positive action. Whilst we consider that age should not be used as a proxy for need, it will often be necessary to require objective justification for potential age discrimination. We recognise that there may be times when it can be justifiable to treat people differently because of their age, for example, in relation to transport to school, entry to competitions or access to health care where clear clinical criteria for need can be shown. A detailed Code of Practice with a number of examples of good practice would certainly help to prevent unintended consequences in this area.

2.5The Forum does not agree that it is right to exclude children and young people from the operation of this legislation. They too experience unjustifiable discrimination and it is no more acceptable for them than for other members of the community. However, it is clearly necessary that the provision of goods and services to children and young people can be tailored to meet their needs.

2.6The Forum accepts that the scope of objective justification of age discrimination will need further clarification. It is recognised that some age based criteria can be objectively justified.

2.7The same positive action provisions should be available in respect of age discrimination as are applicable to the other prohibited grounds.

3. Public sector equality duty (chapter 5)

3.1We agree that ‘(p)ublic authorities are uniquely placed to make a difference to the life chances of people from disadvantaged groups’ (para 5.25) and so we consider that the public sector equality duties play a key role in countering discrimination and promoting equality. The EDF wants to see a general duty that is robust, which covers all the prohibited grounds but recognises areas of differentiation. In particular, the duties should cover gender, trans-gender, pregnancy and maternity, race, disability, religion or belief, sexual orientation and age. Further, we consider that the inclusion of age would be considerably less effective without the extension of protection from discrimination in the area of access to goods, facilities and services which we are also recommending (see above).

3.2We recognise that an integrated equality duty would carry both efficiency gains and be able to address multiple discrimination, however, this should not be at the price of any dimunition of the strength of the existing duties.

3.3The EDF considers that the right approach is to adopt a unified general equality duty across all the grounds, including the elimination of unlawful discrimination and unlawful harassment and the promotion of equality of opportunity.[12] The general duty should also include promoting participation of people from defined groups as well as promoting positive attitudes and good relations between people of different groups and between members of groups and others.

There would then be additional general duties which would apply to specific grounds defined by subclauses. These would include: in the case of gender, a duty to promote equal pay between men and women; in the case of disability to take account of disabled people’s disabilities, even where that involves treating disabled people more favourably than others.

3.4To be effective the general duty must apply across all the functions of the authority – rather than, as proposed in the green paper, require the setting of specific equality objectives. This will mean that equality will be mainstreamed across all the organisation’s functions – something which is key to an effective duty on the public sector. This requirement would mean that any authority applying the duty will have to consider the effect of any action or provision on its equality duties, (and it will do this by means of impact assessment) and where an adverse impact is identified, to take proportionate action to promote equality. Further consideration is needed of the wording necessary to achieve this result.

3.5The Consultation document proposes to replace all of the specific duties currently in place with non enforceable principles, including removing the requirement to make its evidence and progress public, to involve and consult, and to monitor. The EDF opposes this proposal as it would make it very difficult for the public to challenge public bodies on their performance and for inspectorates and the CEHR to monitor and enforce compliance. Recognising that the existing duties can lead to a stronger focus on procedures than outcomes, the EDF suggests limiting the specific duties to the minimum essential to ensure delivery and allow monitoring and enforcement: a streamlined specific duty of six preparatory and consequential steps (as suggested by Sarah Spencer and Sandra Fredman[13]):

  1. Gather evidence on the current situation and diagnose the causes of any discrimination or inequality identified in any of the equality strands.[14]
  2. Consult and involve affected parties, a specific duty because of the importance of participation not only as a means to better decision making but as an equality goal in its own right.
  3. Set out, in a current action plan and, crucially, reflect in the organisation’s operational or business plan, the proposed ‘appropriate and proportionate steps’, and proposed timescale for implementation.
  4. Implement the plan.
  5. Assess the potential impact of new and existing policies or services on equality, where initial screening suggests impact could be significant.
  6. Monitor and make public the baseline evidence, action plan and annual progress in the authority’s ‘progressive realisation of equality’ across the equality strands.

We strongly disagree that it will be sufficient to set out principles to inform implementation of the duty. This is because:

  1. While public bodies need some flexibility in deciding what action is necessary and proportional to address the inequality they have identified in their employment and service provision, they need to do so within a broad common framework that:

i) ensures certain minimum standards in implementation such as consultation, an evidence base and assessing the potential impact of new measures, and

ii) ensures the transparency and level of consistency in public reporting on which accountability to the local public and to external regulatory bodies depends. Members of the public and civil society organisations will not be able to challenge an authority on its record unless the authority makes public the action it intends to take and the outcomes it has achieved. Nor will the CEHR, in practice, be able to exercise its power to assess compliance because baseline evidence on compliance will not be easily accessible and comparable between like authorities.

  1. If the law were only to set down principles, rather than specific duties, it would not be possible to challenge an authority’s failure to involve and consult, to have an action plan, monitor or make outcomes public. This would not be remedied even if the CEHR had powers to produce a Code of Practice (which is not entirely clear from the Green Paper). Under a Code of Practice, a failure to comply with the Code could only be taken into account by the courts if action was taken against the authority on other grounds. This has been shown in other areas of equality law to be a lever with limited impact on the behaviour of public bodies. There will, of course, be a role for statutory codes of practice, and guidance on, for example, exactly how authorities should consult, monitor and so forth, but the requirement to do so must be in law.

Removal of these requirements – present in the existing equality duties – would be retrogressive, weakening current protection (eg that disabled people will be involved in the development of the scheme). Yet the consultation paper says the Government does not intend to do this (para 1.1: ‘we want to make sure ....we do not erode existing levels of protection against discrimination’).

We suggest that the acid test of the Government’s proposals is thus whether the law requires – not simply advises – authorities to collect evidence, including from consultation, to involve, to have an action plan in some form, to monitor progress/outcomes, to assess the impact of the action taken, and to make public this information. It should be noted that proportionality also applies to the specific duties.

3.6The EDF has considered how a public authority for the purposes of the general equality duties should be defined. We are not of the view that it should be the same as the definition of a ‘public authority’ for the purposes of the Human Rights Act 1998. There is a strong argument that equality duties should go further than the obligation on public authorities to give effect to the Human Rights Act. We do want to see organisations who provide public services being covered by the general equality duty and we consider that the mechanics for achieving this merits careful consideration. The experience of Northern Ireland, where the section 75 Northern Ireland Act 1998 Equality Duty covers any organisation regulated by a statutory authority, may be pertinant here. For the purposes of the specific duties, we consider that a listing approach should be maintained based on the existing list of authorities to which the race, disability and gender equality duties apply. It should be the same duties for all bodies if it is made clear that the duties are proportionate.This would enable any particular body to be able to clearly ascertain whether they are covered or not. However, we do consider that the process of amending the list should be subject to some time limits, for example, specifying that it should take no more than six or nine months to reach a decision on whether a new body needs to be included.