RESEARCH PAPER 09/42 Equality Bill 7 MAY 2009 Bill 85 of 2008-09

Legislation to outlaw discrimination has existed for over 40 years. Typically, new Acts have had as their focus one area of policy, for example, pay, equal treatment of women, race discrimination etc. Almost inevitably, the body of current law, introduced piece meal over such a long period, has developed inconsistencies of both content and approach. As well as introducing new requirements one of the main aims of this Bill is to harmonise existing law into a more coherent whole.

Vincent Keter

BUSINESS & TRANSPORT SECTION WITH CONTRIBUTIONS FROM, LOUISE BUTCHER, RICHARD CRACKNELL, TIMOTHY EDMONDS, OONAGH GAY, CHRISTINE GILLIE, HELEN HOLDEN, ALEX HORNE, SUE HUBBLE, RICHARD KELLY, STEVEN KENNEDY, ADAM MELLOWS- FACER, VAUGHNE MILLAR, BRYN MORGAN, JO ROLL, LOUISE SMITH, DJUNA THURLEY AND WENDY WILSON

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Summary of main points

Consultation responses to the proposals contained in the Bill reveal the wide range and depth of issues and interests affected. They represent significant debates that have evolved over a long period of time. Many of the issues raised are embedded in levels of legal complexity that may be unfamiliar outside legal and academic practice. The legislation that the Bill seeks to consolidate in a single statute runs to many thousands of pages. Much of this is intended to be replicated in the Bill, although in many cases not in the precise form it appears in the original. In addition, there are also changes and adaptations which are proposed. Some provisions are entirely new. The changes are largely intended to address entrenched inequalities or areas where progress is seen to have been slow.

The need for simplification and harmonisation arises out of an uneven process of legislative development stretching back over 40 years. This has met with growing calls for a framework that capitalises on similarities in the basic concepts that have nevertheless generated differing legislative wording, whilst maintaining the necessary differences in terms of the interests concerned. The Bill groups these together as ‘protected characteristics’ sharing common as well as special provisions and exceptions. These are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

The significant provisions on age extend discrimination protection outside the workplace. The detail of how this will work, particularly in the areas of financial services and health and social care, have yet to be determined. The provisions will not extend to those under the age of 18. The Bill also preserves the permission for mandatory retirement after a certain age in contracts of employment, an issue which is currently the subject of legal challenge awaiting final decision by the High Court. Some would like to see the Bill extend prohibition against mandatory retirement to all age groups. The insurance industry retains some of its existing exemptions from discrimination but exemption from age discrimination is not part of the Bill.

In the field of disability, the Bill seeks to address the outcome of London Borough of Lewisham LBC v Malcolm which is of fundamental significance for disability rights. The Bill seeks to address the impact of this case which is generally seen as having weakened discrimination protection. The Equality and Human Rights Commission is critical of the Bill’s proposals which rely on the concept of ‘indirect discrimination’.

The Bill’s wording of direct discrimination provisions reflects the outcome of another important disability discrimination case: Coleman v Attridge Law. This case clarified that disability discrimination protection extended by association to a mother who cared for her disabled child. The Bill accordingly clarifies protection against discrimination by association.

Some of the Bill's provisions address different requirements that apply in disabled access to transport. There are also provisions affecting schools and further and higher education institutions. For example, protection from discrimination on the grounds of gender reassignment is extended to school pupils in the Bill.

There are also new specific protections for mothers who are breast-feeding. Discrimination in the terms of membership and benefits for private clubs and associations is prohibited by the Bill with some exceptions.

Harmonised provisions defining indirect discrimination covering all protected characteristics would, if enacted, simplify the current position in race discrimination legislation.

The Bill’s unified public sector duty, intended to promote equality in public policy and decision-making, is extended to the protected characteristics of sexual orientation, age and religion or belief. There are also specific provisions intended to assist the use of public sector procurement as a technique to positively impact inequalities in the private sector. A new public sector duty is proposed addressed to socio-economic inequalities.

The current legislation addressed to sex discrimination follows two distinct legislative models which are preserved in the Bill. Separate provisions cover equal pay and terms and conditions of employment. Many would like to see a more fundamental reform of sex discrimination in equal pay legislation in light of the difficulties and complexities generated in legal claims for equal pay. This might involve the possibility of collective legal actions.

The Bill contains a power to introduce legislation requiring that employers review gender pay differences within their organisations and publish the results. These moves have been criticised by business interests.

The Government has indicated its intention to provide for “multiple discrimination” protection for claims based on multiple combined protected characteristics. New provisions may be added to the Bill during its passage through Parliament.

The Bill extends the permission for positive action in favour of disadvantaged groups in employment to include recruitment and promotion.

Some changes are made to the way that individual claims are enforced, such measures allowing cases to be consolidated between courts and tribunals. Employment tribunals are also given wider powers to make recommendations for the collective benefit of employees.

The Bill would allow a Minister to amend UK equality legislation to comply with European law without the need for primary legislation.

The Bill extends the period for which all-women shortlists may be used for Parliamentary and other elections until 2030 and will also allow parties to reserve places on shortlists of candidates for people on the grounds of race or disability. Shortlists comprised solely of people selected on these grounds will not be allowed.

Territorial extent: the Bill forms part of the law of England and Wales. It also, with one exception, forms part of the law of Scotland. There are also a few provisions which form part of the law of Northern Ireland.

Current and subsequent versions of the Bill and explanatory notes can be downloaded from the Parliament website which also gives links to debates, proceedings and transcripts of evidence: http://services.parliament.uk/bills/2008-09/equality.html

CONTENTS

I Introduction 11

A. Establishing a new legal framework for equalities legislation 11

B. Equality strategies 11

C. Consultation process 13

D. Key documents and legislative references 15

E. Commonly used abbreviations 16

F. Publication experiment 16

II The Bill 17

A. Purpose clause 17

B. Socio-economic inequality public sector duty: clause 1 19

C. Protected characteristics: clause 4 19

D. Direct discrimination: clause 13 20

1. Association 21 2. Intersectional discrimination 21 3. Differences to be retained 23 4. Comparators 24 E. Indirect discrimination: clause 18 24

1. Background 24 2. Definition 25 F. Discrimination arising from disability: clause 14 26

1. Background 27 2. Malcolm: The facts 27 3. The initial hearing 28 4. The Court of Appeal 28 5. House of Lords 29 6. The implications of Malcolm 29

7. Consultation on a solution 30 8. The Bill 32 G. Pregnancy and maternity discrimination: clauses 16 - 17 34

H. Reasonable adjustments: clause 19 37

1. The duty 37 2. Anticipatory duty 38 I. Harassment: clause 24 39

J. Victimisation: clause 25 40

K. Services and public functions: clause 190 and schedule 3 40

1. Overview 40 2. Insurance 41 3. Health and social care 44 L. Definition of public functions: clause 29 48

M. Premises: clauses 30 - 35 49

1. Adjustments to common parts of premises 49 2. The Bill: clause 34 53 N. Work: Part 5, clauses 36 - 56 54

1. Harmonisation 54 2. Genuine occupational requirements or qualifications 55 3. Mandatory retirement 56 O. Occupational pension schemes: clauses 57 and 58 56

P. Equality of terms and equal pay: clauses 59 - 75 58

1. Dual system of sex discrimination law 58 2. Comparators in equal pay claims: clause 74 59 3. Material factor defence: clause 64 61 Q. Sex discrimination in relation to contractual pay: clause 66 67

R. Discussions with colleagues: clause 72 68

S. Transparency: clause 73 69

1. Public sector 69 2. Private sector 70 T. Burden of proof: clause 130 73

U. Education 74

1. Schools: clauses 79 - 84 74 2. Extension of gender reassignment protection to school pupils 74 3. Preventing victimisation of pupils for conduct of parents 76 4. General qualifications bodies: clauses 90 - 93 76 5. Additional Support Needs Tribunals for Scotland: disability discrimination in schools: clause 110 77 V. Clubs and Associations: clauses 97 - 98 78

1. Private members’ clubs 78 2. Political parties 78 W. Enforcement 84

1. Civil Courts: clauses 108 - 113 84 2. Employment tribunals: clauses 114 – 126 86 3. Employment Tribunals: statistics 87 X. Public sector duties: clauses 143-153 87

1. Current public sector duties 88 2. Procurement: clause 149 89 Y. Positive action: clauses 152 and 153 90

Z. Disabled persons transport: clauses 154 – 181 93

1. Taxis 93 2. Maritime transport 95 AA. EU Harmonisation: clause 191 95

BB. Territorial extent: clauses 196 - 197 97

1. Clause 196 The Welsh Ministers 98 2. Clause 197 The Scottish Ministers 98 3. Schedule 19 99 III Further background 99

A. Discrimination law reform 99

1. Historical background 99 2. Single Equality Act 101 3. Discrimination Law 101 4. Review 102

5. Persistent Inequalities 104 B. Equal pay 107

1. Overview 107 2. Equal Pay Legislation 107 3. The dual system 109 4. Gender pay inequality 111 5. Equal pay audits or reviews 113 6. Part time workers 115 7. Occupational segregation 115 8. Collective pay agreements: Single Status and Agenda for Change 117 9. Agenda for Change 123 C. Sex discrimination in private clubs 124

1. Sex Discrimination Act 124 2. Council Directive 2004/113/EC 126 3. Working Men's Club and Institute Union (CIU) 127 4. Race Relations Act 1976 128 5. Equal Opportunities Commission proposal 1998 129 6. Private Members’ Bills 130 D. Mandatory retirement 131

1. Current position 131 2. Policy development 133 3. Procedures 134 4. Legal challenge 135 E. Other strands 136

1. Carers 136 2. Children 137 3. Caste 138 4. Genetic discrimination 140 5. Welsh speakers 142 F. Academic studies of social mobility 143

G. Regulatory burdens 146

1. Better regulation principles 146 2. Enforcement 148

3. Company reporting 149 4. European law 150 IV Costs and benefits of the Bill 151

V Statistical aspects of social inequality and mobility 154

A. Age 154

B. Disabled people 154

C. Transsexual people 154

D. Marriage and civil partnership 155

E. Ethnic Minorities 155

F. Religion 155

G. Gender 156

H. Sexual orientation 156

I. Gender pay gap 156

1. Measurement of the gender pay gap 156 2. Statistics 157 Appendix 1: Organisations and Contacts 161

RESEARCH PAPER 09/42

I Introduction

A. Establishing a new legal framework for equalities legislation

The Introductory Section of the Notes on clauses to the Bill states that “the bill has two main purposes – to harmonise discrimination law, and to strengthen the law to support progress on equality”. Current UK anti-discrimination legislation is comprised of nine statutes or Regulations, ranging from the Equal Pay Act 1970 to the Equality Act (sexual Orientation) Regulations 2007. Legislation which consolidates and harmonises existing law is seldom straightforward and this Bill, which deals with law developed over nearly forty years and quite separate subject areas, pay, employment issues, religion and gender equality, is no exception.

In addition to those complexities, the Bill also introduces a broad new legal duty on public authorities – a consideration of socio-economic disadvantage – and introduces new requirements, or makes changes to existing law with respect to the different aspects of discrimination policy. Hence, although much of the Bill simply restates existing provision, individual clauses do sometimes make significant changes to the law.

Describing the Bill simply, is a challenge too. This Paper starts with a general overview. It continues by working through the Bill on a subject by subject basis concentrating on two things. First, describing where the law has changed and where possible, providing a guide to previous consultations and debate on any such change. Second, it tries to explain the broad legal principles and difficulties encountered by the harmonisation exercise. It ends with a section giving further background to some of the more complex issues and a statistical section illustrating the broad, contemporary, state of ‘inequality’ in the UK.

Unless necessary for greater clarity, the Paper does not include a full resume of the history and content of the separate constituent parts of equality legislation. If background guidance is needed Members are requested to contact the relevant Library specialists who have contributed to this Paper. Details may be found on the Parliamentary intranet or by ringing x3666.

B. Equality strategies

Equalities legislation has evolved to cover different areas, the main ones being employment, the provision of goods, facilities or services including the letting of premises and the administrative decisions of public bodies and those exercising public functions. These various measures are addressed to historically derived imbalances in social relationships that society in general no longer finds acceptable. Interventions or strategies embodied in legislation or public policy run alongside, and in some cases encounter, the strategies for advancing equality that exist in civil society, such as collective bargaining and associations of one form or another. These different strategies can be broadly summarised as follows:

 Liberal equality law: This comprises rights for individuals to sue for compensation or other remedies which provide redress for discrimination, but

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also includes other legal rights that positively affect social equality, for example work-life balance employment rights. The Bill seeks to establish a uniform platform of anti-discrimination rights whilst taking into account relevant differences between the needs of specific groups at the same time as balancing these with other interests that may be affected.

 Public policy and public decision-making: This strategy includes public policies designed to counteract inequalities as well as legally formulated duties falling on public sector planners and decision makers. These policy objectives find expression in various activities such as public sector procurement or subsidies. In addition, such policies or legal frameworks may address representation and participation in governance. They may be supported by quasi- independent commissions, taskforces and networks. At a local level these networks may come to play an important part in linking top-down initiatives with a broader social reality. The Equality Act 2006 established a single equality commission: the Equality and Human Rights Commission (EHRC). The Bill seeks to introduce a unified public sector duty to assist mainstreaming equality in administrative action and also contains provisions on the recruitment and selection of candidates for public office.

 Positive duties and positive action: This general approach seeks collective remedies and so is not based on complaints by individuals. It may be based on evidence of competitive pressures and vested interests that undermine expectations of progress through voluntary means. It may include positive action to address entrenched inequalities. In its more developed form it may entail legal measures placing positive duties on private sector employers to take specific action to address inequality, actively monitored and enforced by the state. Precedents include Northern Ireland fair employment legislation and the Ontario Pay Equity Act and may require that employers register with an equality body which actively monitors the make-up of their workforce and levels of participation by specified groups within their organisations. This could include sanctions such as withdrawal of eligibility for public sector contracts and criminal sanctions for failure to submit monitoring returns. Limited provisions currently exist in British law in that positive action is to some extent allowed in areas such as career support and vocational training. The Bill extends positive action measures to recruitment and promotion and contains a power to introduce measures (not due before 2013) applicable to employers in the private sector requiring them to publish information on gender pay disparities.

 Trade unions: Collective agreements, in addition to securing pragmatic compromises for the benefit of members in the course of interest bargaining, may also incorporate rights-based equality objectives. The Bill does not legislate in this area specifically, although these issues arise in the background of some of the Bill's provisions and were mentioned in consultation.

 Associations: These may include political pressure groups, clubs and associations that build support among a particular group sharing a common identity, or also bodies and networks that enjoy some level of government

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support. The Bill's provisions in Part 7 apply to associations and clubs generally, whether or not they support equalities objectives, and are mainly for the benefit of existing or potential members and guests. Schedules 15 and 16 however contain some provisions and exceptions intended to take account of organisations that foster a common identity.

All of these strategies incorporate top-down and bottom-up dynamics and have inherent strengths and weaknesses in aligning interests, as well as displaying tendencies toward segregation or assimilation. Some of the complexities of the Bill arise from the interaction between the different strategies. They have the capability of being mutually reinforcing, but may at times conflict. For example, legal claims for equal pay may form an uncomfortable backdrop to collective pay bargaining that in part seeks to address equal pay between men and women; and the outcomes of such agreements may not be fully compliant with the legal rights of individuals. In the detailed clauses of the Bill, these issues as regards the interaction between strategies often cross refer and particular clauses may bear out one or more strategy for advancing equality.

C. Consultation process

Proposals for a unified discrimination statute have been around since at least 1994.1 A single statute for all equality law was a key recommendation of the “Hepple Report” in 2000.2 Lord Lester of Herne Hill introduced an Equality Bill in the Lords on 14 January 2003 which did not become law.3

A Ministerial Statement of 25 February 2005 announced that the Government would set up the Equalities Review (looking at social, economic, cultural and other factors) and the Discrimination Law Review (looking at legislative options).4 In the 2005 Labour Party Manifesto the Government announced a commitment to introduce a Single Equality Act by the end of the current Parliament.5

The Equality Act 2006 passed on 16 February 2006, established the Commission for Equality and Human Rights (CEHR – renamed Equality and Human Rights Commission – EHRC) and brought in new measures advancing discrimination protection.6 A joint DTI and Cabinet Office press release that had previously announced a review of discrimination legislation suggested that one of the first tasks of the CEHR would be to look at the creation of a Single Equality Act.7

The final report of the Equalities Review entitled Fairness and Freedom: The Final Report of the Equalities Review was published on 23 March 2007.8

1 Commission for Social Justice, Social Justice, strategies for national renewal, Vintage, 1994, page 196 2 B. Hepple, M. Coussey, T. Choudhury, Equality: a New Framework. Report of the Independent Review of the Enforcement of UK Anti-Discrimination Legislation Oxford: Hart Publishing, 2000 3 HL Deb 28 February 2003 cc 526-527 4 HC Deb 25 February 2005 cc68-70WS 5 Labour Party Manifesto 2005, page 112 6 Equality Act 2006 7 Joint DTI and Cabinet Office Release, Review of causes of discrimination announced, 25 February 2005 8 Fairness and Freedom: The Final Report of the Equalities Review, 23 March 2007

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The Green paper entitled A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain was published, a year later than expected, on 12 June 2007 for responses by 4 September 2007.9

There have criticisms referring to delays in the evolution of the proposals in the Bill. In particular, the delay in publishing the Green Paper (June 2007) containing the results of the Discrimination Law Review (DLR) (February 2005) has been criticised by the House of Commons Committee on Communities and Local Government.10 In their report, published in August 2007, the DCLG Committee commented in the following terms on the process:

The process leading to a Single Equality Act

39. The Government launched the DLR in February 2005. The results were originally expected to be published in mid-2006 but have been subject to repeated postponement. On 12 June 2007 the DLR was finally published, a year later than first planned. We have already referred to the additional challenges which the CEHR faces as a result of the consequent absence of single equality legislation at the point at which it comes into operation. Justice was not the only organisation to suggest that the delay indicates "a lack of commitment and a reluctance to change" on the part of Government and to worry that it may also imply that equality legislation is no longer a priority.

40. The Minister reiterated the Government's commitment to introducing a Single Equality Bill within the lifetime of this Parliament, though she noted that the feasibility of legislation actually getting on the statute books depended on the length of the remaining Parliament. Trevor Phillips stated that he believed that "Ministers would like to see something in statute before 2009". The option of introducing a draft bill to enable pre-legislative scrutiny is being considered but the Minister told us that there were "tensions" within Government on the topic. The DRC called for a draft bill to be laid to enable a greater degree of parliamentary scrutiny. Either way, "the timetable is tight" if the current Parliament is to enact legislation within its expected lifetime. 11

There followed a series of PQs asking about a date for the Government’s response to the Green Paper.12 The Draft Legislative Programme in May 2008 announced that there would be a Bill in the following (i.e. current) session.13 The Government made clear it did not intend to publish a White Paper or draft Bill. There have been a number of oral and

9 Department for Communities and Local Government, A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain, 12 June 2007 10 Communities and Local Government Committee, Equality, Sixth Report of Session 2006–07, 2 August 2007, HC 468; Some delay may be due to the fact that the Discrimination Law Review needed to await the outcome of the Equalities Review before completing the Green Paper. 11 Communities and Local Government Committee, Equality, Sixth Report of Session 2006–07, 2 August 2007, HC 468, pages 16-17 12 See below 13 Cabinet Office, Draft Legislative Programme 2008-09, May 2008

14 RESEARCH PAPER 09/42 written PQs some of which have raised questions about the timetable for publication of the Government’s response.14

D. Key documents and legislative references

 The Bill and Explanatory Notes on Clauses.  The Impact Assessment on the Bill  Many of the proposals in the Bill were discussed in the consultation document: Discrimination Law Review – A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain published in June 2007 by the Department of Communities and Local Government. For brevity, this is described throughout this Paper as the ‘Consultation document’ or ‘the Consultation’.  GEO, Framework for a Fairer Future, Cm 7431, June2008,  The Government’s response to the Consultation (above) can be found in Equality Bill - Government Response to the Consultation , Cm 7454, July 2008. For brevity, this is described throughout this Paper as the ‘Consultation Response document’ or ‘the Consultation Response’.  Equality and Human Rights Commission, Parliamentary briefing for Commons Second Reading May 2009 (more detailed briefing to follow)  GEO, Letter dated 05/05/2009 from Vera Baird MP to Andrew Dismore MP regarding the Equality Bill - Human Rights. Inc a memorandum, 5 May 2009, Deposited paper DEP2009-1293  Women and Work Commission, Final Report, Shaping a Fairer Future, 27 February 2006  Fairness and Freedom: The Final Report of the Equalities Review, 28 February 2007  B. Hepple, M. Coussey, T. Choudhury, Equality: a New Framework. Report of the Independent Review of the Enforcement of UK Anti-Discrimination Legislation Oxford: Hart Publishing, 2000  Equal Pay Act 1970  Sexual Discrimination Act 1975  Race Relations Act 1976  Disability Discrimination Act 1995  Employment Equality (Religion or Belief) Regulations 2003  Employment Equality (Sexual Orientation) Regulations 2003  Employment Equality (Age) Regulations 2003  Employment Equality (Sexual Orientation) Regulations 2007  Equality Act 2006  Employment Equality (Sexual Orientation) Regulations 2007

14 Oral PQs: HC Deb 8 May 2008 cc836-41; Written Answers: HL Deb 23 June 2008 c207WA; HC Deb 20 June 2008 c1223W; HC Deb 15 May 2008 c1758-9W; HC Deb 8 May 2008 c1053W; HC Deb 30 April 2008 c423W; HC Deb 13 March 2008 c523W; HC Deb 11 December 2007 c469W; c471W; HL Deb 20 November 2007 c59WA; HC Deb 18 October 2007 c1236W; HC Deb 16 October 2007 c950-1W; HC Deb 26 June 2007 c631W; HL Deb 19 June 2007 c33WA; HC Deb 18 June 2007 c1450-1W

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E. Commonly used abbreviations

Commission for Racial Equality – CRE Discrimination Law Review – DLR Government Equalities Office - GEO Equality and Human Rights Commission – EHRC European Court of Justice – ECJ Equal Opportunities Commission – EOC Office for Disability Issues - ODI Equal Pay Act 1970 - EqPA Disability Discrimination Act – DDA Disability Rights Commission - DRC Sex Discrimination Act – SDA Race Relations Act – RRA Human Rights Act 1998 - HRA Employment Tribunal - ET Employment Appeal Tribunal - EAT

F. Publication experiment

The Equality Bill 2008-09 and its explanatory notes were published as a single document after its introduction in the House of Commons on 24 April 2009. This was the first time that a bill and its explanatory notes were not published as separate documents. The pages were interleaved with the explanatory notes facing the text of the relevant clause.

In February 2009, Chris Bryant, the Deputy Leader of the House of Commons, wrote to the Procedure Committee requesting its initial thoughts before the Bill was introduced. He noted that the text of two draft bills had been published with interleaved explanatory notes.15

On 26 March 2009, the Procedure Committee’s report Interleaving of Bills and Explanatory Notes was published. The Committee recommended that:

… the House endorse the proposal that the Government should experiment with the format of interleaving bills and Explanatory Notes in the case of a single bill in the current Session.

The Committee added that it intended to monitor the outcome of any experiment, and would undertake more work if the House was asked to approve the use of the format in future.16

The House approved the Procedure Committee’s report on 30 March 2009, without debate or division.17

15 In 2006 the draft Coroners Bill was interleaved with explanatory notes and the draft Marine Bill appeared in a similar form in 2008: Department for Constitutional Affairs, Draft Coroners Bill, 12 June 2006, Cm 6849; Department for Environment, Food and Rural Affairs, Draft Marine Bill, 3 April 2008, Cm 7351 16 Procedure Committee, Interleaving of Bills and Explanatory Notes, 26 March 2009, HC 377 2008-09, para 3

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II The Bill

A. Purpose clause

There have been various calls, which were reflected in responses to the consultation, that there should be a ‘purpose clause’ for the Bill. Such clauses are normally avoided in the drafting of UK legislation. The Equality Act 2006 contains a fundamental duty for the new unified equality commission (EHRC). Section 3 provides that the Commission exercise its functions with a view to encouraging and supporting the development of a society in which:

(a) people's ability to achieve their potential is not limited by prejudice or discrimination, (b) there is respect for and protection of each individual's human rights, (c) there is respect for the dignity and worth of each individual, (d) each individual has an equal opportunity to participate in society, and (e) there is mutual respect between groups based on understanding and valuing of diversity and on shared respect for equality and human rights.

The three former equality commissions (Commission for Racial Equality, Disability Rights Commission and Equal Opportunities Commission) in response to the consultation jointly proposed the following draft 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 social inclusion of individuals and groups by eliminating and preventing patterns of systemic discrimination and inequality; and 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 the 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.18

Discrimination statutes in other jurisdictions, notably South Africa, Australia and Canada, make use of purpose clauses. The arguments in favour of a purpose clause for the Bill commonly put forward can be summarised as follows:

 Discrimination law involves issues of principle that would benefit by an overarching clarification of the fundamental objectives of the legislation.

 It would encourage a more proactive and purposive interpretation of the legislation and the implementation of its goals.

17 HC Deb 30 March 2009 c759 18 Michael Rubenstein, ‘Responses to the DLR’, Equal Opportunities Review, Issue 171, December 2007, page 18

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 It would help in shaping public attitudes toward equality and inform popular understanding of the legislation.

 It would help reduce uncertainty in the formation of case law based on the legislation.

 It would harmonise some potential conflicts of interpretation between different areas covered by the legislation if the overarching principles were clarified.

The Government decided against such a clause. Its reasons were given in response to the consultation:

14.3 Our aim is to have legislation which is as clear as possible and which achieves legal certainty. We believe that those who are calling for a purpose clause share this aim. The difference is that we do not consider that a purpose clause is the right means for achieving the necessary clarity.

14.4 One of the main aims of the Bill is to set out the law in clear and unambiguous terms. A purpose clause would undermine that aim because there would be an inevitable tension between a general statement of purpose and specific provisions in the Bill. There could well be an increase in litigation as a result, with perhaps unexpected outcomes in some cases. If the purpose clause is intended to mean the same as the substantive provisions, it would be unnecessary duplication. And it might still be interpreted by the courts and tribunals as meaning something different on the basis that Parliament must have decided to include the clause for a reason. Or, if it was intended to mean something meaning of the specific provisions in the Bill would be undermined.

14.5 So, while appreciating the desire for clarity and consistency which underlies the call for a purpose clause from many of the respondents on this issue, we do not believe that ultimately it will lead to an improvement in the way the courts or tribunals interpret the legislation, or provide guidance to others. In fact, we believe it is likely to have the opposite effect. Instead, we consider that the right place for a statement on the objectives of the Bill is in Parliament, typically at Second Reading.

14.6 We are shortly to publish proposals for a Bill of Rights and Responsibilities for the United Kingdom, building on the Human Rights Act. There will be a public consultation on these proposals, which will include the possibility that a Bill of Rights and Responsibilities should include a constitutional equality provision, reflecting the central place of equality in our society as one of the values which informs governmental and public authority decision-making.19

The EHRC are calling for an “equality guarantee” that would create a “right to equality”. This could involve the UK ratification of Optional Protocol 12 of the European Convention on Human Rights with appropriate amendments to the Human Rights Act 1998, although

19 GEO, The Equality Bill – Government Response to the Consultation, CM 7454, July 2008, pp175-6

18 RESEARCH PAPER 09/42 the Government are not in favour of this. However, the Commission would prefer such a right to be included in the Bill, covering only the protected characteristics.

B. Socio-economic inequality public sector duty: clause 1

Clause 1 of the Bill establishes a new public sector duty geared toward addressing socio-economic inequalities. Public authorities identified in 1(3), with some exceptions, will be required to have “due regard” to the “desirability” of reducing socio-economic disadvantage, in line with ministerial guidance. The duty relates specifically to “public functions” as defined and also extends to a limited range of other public authorities that may work in partnership with local authorities in drawing up sustainable community strategies. The kinds of public policy that might be addressed in furtherance of the duty could include such things as:

 health inequalities  local and regional concentrations of disadvantage  urban socio-economic polarisation  business support and support for small firms in deprived areas

It will not be possible for an individual to take legal action claiming damages for breach of statutory duty. However, decisions of the listed public bodies could be subject to judicial review on the basis of this statutory duty.

An article in the Financial Times criticised the new duty on the grounds that: “...the government is already set to miss other self-imposed targets for improving social and economic conditions” such as “child poverty”, and the “statutory duty to reduce fuel poverty”. It is also questioned how the duty will be received by the courts, which are seen to have been “deeply reluctant to enforce social or economic goals on government”.20

A later section of this paper gives further background on academic studies on social mobility.

C. Protected characteristics: clause 4

One of the principal aims of the Bill is to harmonise discrimination law across the variety of different grounds that currently exist, these are all grouped together in clause 4 as “protected characteristics”. The clause lists them in alphabetical order: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

These are all characteristics which are covered by current discrimination law, albeit in different ways. Some of these differences are rational, relating to the different nature of discrimination or disadvantage faced by each group. However, many differences arise historically out of the piecemeal nature of legislative development. The general approach of the Bill is to retain the former but not the latter. In some cases this has meant levelling

20 ‘Flawed attempt to force social change’, Financial Times, 28 April 2009

19 RESEARCH PAPER 09/42 up the range of protections available to cover all protected characteristics. Characteristics that are not currently protected by discrimination law could possibly be added to the list by simply amending a single Act. New characteristics that might be added could include: genetic factors, caste, or Welsh speakers. Whilst some of these have been debated and called for by representative bodies the Government decided to retain the existing characteristics only and there are no outstanding Government proposals to extend the list.

Subsequent clauses go on to define each characteristic in more detail, building largely on existing definitions in legislation. Where these definitions are modified this is signalled in the explanatory notes. For example, the definition of gender reassignment is extended beyond those covered by medical supervision. Also, clause 6 covers disability and refers to Schedule 1 where the explanatory notes highlight the removal of the requirement to consider a list of eight capacities in deciding whether a person is covered by the definition of disability.

D. Direct discrimination: clause 13

Existing discrimination legislation in most cases differentiates direct from indirect discrimination. Direct discrimination means less favourable treatment on the grounds of a characteristic protected. Indirect discrimination might not be specifically addressed to a protected characteristic, but will have that indirect effect since it may have a disproportionate impact on a particular group sharing that characteristic.

Clause 13 contains the provision for direct discrimination covering all the protected characteristics (sometimes referred to as ‘strands’). This provision is applied with various modifications and exceptions across other areas such as employment, associations, services and public functions. However it is specifically excluded in provisions on equal pay and contractual terms (contained in Part 5, Chapter 3) preserving the current “dual system” of sex discrimination legislation currently contained in the SDA and the EqPA.

Clause 13(1) provides a broad definition of direct discrimination: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

There are two key issues related to this definition. The first concerns “multiple discrimination”. A victim of discrimination could have more than one protected characteristic. They may ground their claim on two separate characteristics (‘additional discrimination’); or a combination of more than one (‘intersectional discrimination’). The second is that, as the explanatory notes suggest, the wording of the clause is intended to cover discrimination based on perception and association. Accordingly, the definition would cover the case where a person is thought by a discriminator to have a protected characteristic (regardless of whether or not they actually do) and thereby suffers less favourable treatment (perception). In addition, if the person suffering less favourable treatment does not have the characteristic (nor is perceived as having the characteristic) but nevertheless suffers a detriment because of their association with someone who does, then that situation is intended to be covered too (association).

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1. Association

An important case decided on 17 July 2008 by the European Court of Justice (ECJ) dealt with the question of discrimination by association. This could also conceivably have implications for claims based on perception.21 Sharon Coleman worked as a legal secretary and had a son requiring disabled care. She claimed that she was subject to unfair treatment and harassment by her employers, Attridge Law, due to her disabled son. Whilst the concept of associative discrimination is not clearly covered by the wording of the Disability Discrimination Act (DDA), the ECJ ruled that it was covered by the Framework Employment Equality Directive 2000/78. The domestic courts ruled that the wording of the DDA could cover associative discrimination. The need to take account of this case was signalled in the response to the consultation.22

Another way in which the Bill takes account of Coleman can be seen in schedule 9, part 3, paragraph 15. This is described in the explanatory notes as follows:

798. Following the ruling of the European Court of Justice in Coleman v Attridge Law, it is direct discrimination for an employer to treat an employee less favourably on grounds of the age of an employee’s child. There is, therefore, a potential impact on the provision of facilities, such as childcare, where access is limited by reference to the child’s age.

799. The exception will allow employers to continue to offer employees child care facilities based on the age of a child without being open to a challenge of direct discrimination from other employees.

2. Intersectional discrimination

In the Consultation Response the Government indicated that it would look at the question of combined multiple discrimination:

13. We will explore further whether to allow discrimination claims to be brought on combined multiple grounds, such as where someone is discriminated against because she is a black woman.23

These considerations arise out of developments in case law. In 2004, a binding judgement was handed down on this issue in Bahl v The Law Society.24 In this case Kamlesh Bahl, vice-president of the Law Society brought a claim for discrimination both on the grounds that she was Asian and that she was a woman. The initial Employment Tribunal (ET) ruled that she could compare herself to a white man, allowing the combined effect of her race and her sex to be measured. Subsequently, both the Employment Appeal Tribunal (EAT) and the Court of Appeal ruled that this was an incorrect interpretation of the law. Each ground has to be separately considered and a ruling made in respect of each, even if they are inextricably linked.

21 Coleman v Attridge Law, 17 July 2008, ECJ Case C303/06 (Advocate-General M. Poiares Maduro Opinion, 31 January 2008) 22 GEO, The Equality Bill – Government Response to the Consultation, CM 7454, July 2008, page 12 23 GEO, The Equality Bill – Government Response to the Consultation, CM 7454, July 2008, page 6 24 Kamlesh Bahl v Law Society [2003] IRLR 640, EAT; [2004] EWCA Civ.

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Issues in law of multiple discrimination inevitably arise, since individuals frequently possess more than one characteristic and discriminatory decisions may be based on more than one factor. Multiple discrimination can be differentiated into additive discrimination and intersectional discrimination. With additive discrimination the characteristics form separable grounds that can be pursued independently. However, problems have arisen in respect of intersectional discrimination based on a person's combined identity. This may be because of stereotypes, for example that young Muslim men are more likely to be potential terrorists.25 An employer might defend such a claim on the basis that they had recently taken on a number of Muslim women. A tribunal might be tempted to find discrimination on the basis of combined characteristics of religion and gender. However, they would face difficulties in light of the judgements of the EAT and the Court of Appeal in Bahl v The Law Society which required that different grounds be considered independently. The EAT held that:

... if the evidence does not satisfy the tribunal that there is discrimination on grounds of race or on grounds of sex, considered independently, then it is not open to a tribunal to find out the claim satisfied on the basis that there is nonetheless discrimination on grounds of race and sex when both are taken together ... Nor can the tribunal properly conclude, if it is uncertain about whether it is race or sex, but it will find both.26

In the Court of Appeal Lord Justice Peter Gibson said:

In our judgment, it was necessary for the ET to find the primary facts in relation to each type of discrimination against each alleged discriminator and then to explain why it was making the inference, which it did in favour of Dr Bahl on whom lay the burden of proving her case. It failed to do so, and thereby, as the EAT correctly found, erred in law.27

On 27 April 2009, alongside publication of the Bill, the Government announced in a Written Statement that it would be seeking views on a proposal to address intersectional discrimination in the Bill.28 This is accompanied by a discussion document which states that:

Having examined the evidence available, we have developed a proposal for protection from multiple discrimination which would enable claims to be brought combining two protected characteristics, to be implemented in or after April 2011 [...]

In the light of the feedback received, we will decide whether protection from multiple discrimination should be introduced and if so how, taking into account progress on the Equality Bill currently being considered by Parliament. 29

25 Example taken from Adviser, issue 125, January / February 2008, page 18 26 Kamlesh Bahl v Law Society [2003] IRLR 640, EAT 27 Kamlesh Bahl v the Law Society [2004] IRLR 799, para 137 28 HC Deb 27 April 2009 cc39-40WS 29 GEO, Equality Bill: Assessing the impact of a multiple discrimination provision – A discussion document, 27 April 2009, Deposited Paper DEP2009-1229, page 9

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The proposed additional clause is set out in Annexe B of the document:

(1) A person (A) also discriminates against another (B) if, because of a combination of 2 relevant protected characteristics, A treats B less favourably than A treats or would treat a person who does not share either of those characteristics.

(2) The following are relevant protected characteristics.

(a) age; (b) disability; (c) gender reassignment; (d) race; (e) religion or belief; (f) sex; (g) sexual orientation.

(3) A does not discriminate against B by virtue of subsection (1) if, in consequence of any other provision of this Act, A’s treatment of B is not a relevant contravention.

(4) For the purpose of establishing a contravention of this Act by virtue of subsection (1), it does not matter whether, in relation to either of the combined characteristics, there is sufficient evidence to justify a finding that there has been a relevant contravention.

(5) Proceedings in respect of a contravention of this Act by virtue of subsection (1) may not be brought if subsection (6) applies.

(6) This subsection applies if.

(a) a provision of an enactment (including this Act) requires that, in circumstances to which the provision applies, proceedings in respect of a relevant contravention may be brought only in a specified court or tribunal, and (b) in such circumstances, the court or tribunal does not have jurisdiction in respect of a relevant contravention relating to the other characteristic in the combination.

(7) A Minister of the Crown may by order specify other circumstances in which proceedings in respect of a contravention of this Act by virtue of subsection (1) may not be brought; and an order under this subsection may amend this section.

(8) A relevant contravention is a contravention of this Act by virtue of section 13 because of a characteristic in the combination.

3. Differences to be retained

Clause 13 also contains the differences between characteristics in the definition of direct discrimination that are to be retained. In general, one of the key differences in legislation between direct and indirect discrimination is that a justification defence will normally be available in cases of indirect discrimination, whereas direct discrimination if established will not be open to justification. This basic position in current legislation does not apply in the case of age discrimination where direct discrimination is open to a defence of justification. This position has been retained in 13(2). Clause 13(3) allows for more

23 RESEARCH PAPER 09/42 favourable treatment of disabled people, as compared to people who are not disabled, since that is the essence of disability protection. The protected characteristic of marriage and civil partnership is limited to Part 5 which covers employment and various other forms of working relationship such as agency work and official appointments. Racial segregation is also specifically covered as a form of direct discrimination in 13(5). In relation to religious discrimination, 13(6) clarifies that direct discrimination can be found where a person discriminates against another person of the same religion on religious grounds.

4. Comparators

The formula for direct discrimination contained in 13(1) calls for a comparison to be made between the victim of discrimination (B) and some other person (C) who does not share that protected characteristic. The logic of this is implicit in the idea of “less favourable treatment” which invokes the question: less favourable than whom? The Government consulted on whether or not this device should be retained or replaced by some other formula. It was decided to retain the existing approach. The Consultation Response summarised the arguments as follows:

7.6 Legal groups had varied views on the issue. The Law Society argued that it is unnecessary to retain a comparator and that claimants should merely have to show that they had been unfairly treated or subjected to a detriment. The Employment Lawyers Association favoured the retention of a comparative approach to discrimination, based on establishing that there had been less favourable treatment, but did not see that a specific comparator at the outset was needed. The Discrimination Law Association agreed. They emphasised the need to distinguish between a consideration of the type of evidence needed to persuade a tribunal/court that less favourable treatment was on the prohibited ground; and the formal need to find a comparator in every case. They recommended amending the current definition of direct discrimination so that it takes place where a person, on the relevant grounds, treats another less favourably than they would treat “other persons”.30

E. Indirect discrimination: clause 18

1. Background

The concept of indirect discrimination arose and was developed in US jurisprudence. This differentiation between direct and indirect forms of discrimination is reflected in the drafting of most discrimination legislation, with the exception of EqPA (see sections below). It acknowledges that groups can face forms of discrimination that do not necessarily target the protected characteristics of a group but nevertheless have a disproportionate impact on them. This might or might not be intentional, although there are cases where an attendant feature has deliberately been used to target a particular group.

30 GEO, The Equality Bill – Government Response to the Consultation, CM 7454, July 2008, pages 95-6

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For example, people of the same race might live in the same area. An example of discrimination based on this sort of association can be found in the practice known as “red-lining” which at one point was common in the US and contributed to extreme social unrest at time of the Civil Rights movement. The practice was later made illegal in the US and duties were placed on government-backed lenders to increase access to finance for poorer communities:

In 1941 a real estate developer built a six-foot high wall right across Detroit's 8 Mile district. He had to build it to qualify for subsidised loans from the Federal Housing Administration. The loans were to be given out for construction only on the side of the wall where the residents were mainly white. In the predominantly black part of town, there was to be no federal lending, because African- Americans were regarded as uncreditworthy. It was part of the system that divided the whole city, in theory by credit rating, in practice by colour. Segregation, in other words, was not accidental, but a direct consequence of government policy. Federal Home Loan Bank Board maps showed the predominantly black areas of Detroit - the lower East side and some so-called colonies on the West Side and 8 Mile - marked with a D and coloured red. The areas marked A, B or C were mainly white. The distinction explains why the practice of giving whole areas a negative credit-rating came to be known as red- lining. As a result, when people in D areas wanted to take out mortgages, they paid significantly higher interest rates than the people from areas A to C.31

2. Definition

In the Bill, the definition of indirect discrimination set out in clause 18 is intended to harmonise the different formulae that exist in current legislation. The explanatory notes state that this is being done by adopting “the EU definition of indirect discrimination, replacing pre-existing domestic definitions in the Sex Discrimination Act 1975 and the Race Relations Act 1976”.32 The explanatory notes do not indicate precisely which European legislative measure has served as a model for this form of words. Nor is this indicated clearly in the response to the Consultation, although reference is made to the recommendation by the former Commission for Racial Equality that “anticipatory actions in respect of indirect discrimination be allowed by adopting the definition of indirect discrimination in Article 2 of the Race Directive”.33 Furthermore, on 26 June 2007, the EU Commission issued a letter of formal notice against the UK for its alleged failure to implement correctly provisions of the Race Directive 2000/43/EC. In particular the Commission noted that the UK’s definition of indirect discrimination is different to that of the directive and the definition of the prohibition to give instructions to discriminate is not clear.

In response to the Consultation the Government indicated that it would “abolish the existing “two-tier” levels of definition and tests in the Race Relations Act (RRA) and standardise the definition of indirect discrimination”. The indirect discrimination provisions in the RRA have undoubtedly been unhelpfully complicated by amendments made to the Act required to implement the Race Directive 2000/43/EC. It is now more

31 Niall Ferguson, The Ascent of Money, Penguin Books, 2008 32 Explanatory notes, paragraph 88 33 GEO, The Equality Bill – Government Response to the Consultation, CM 7454, July 2008, page 99

25 RESEARCH PAPER 09/42 complex than indirect discrimination in other areas. Under current law, indirect racial discrimination may fall into one of two categories. The first is on grounds of colour or nationality; the second is based on race, ethnic or national origin.

An example of a European definition of indirect discrimination can also be found in the Equal Treatment Amendment Directive (ETAD). In the course of consultation the Fawcett Society raised the following concerns in terms of UK implementation of that directive:

Indirect discrimination: Under ETAD this occurs where an apparently neutral provision, criterion or practice puts or would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless it could be objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary. The SDA however provides that indirect sex discrimination occurs where a provision, criterion or practice puts persons of one sex at a particular disadvantage when compared with the other unless it can be shown that the provision, criterion or practice is a proportionate means of achieving a legitimate aim.

The practical effect of this difference is that under the SDA it is easier for employers to establish a justification defence. They need only show that a provision, criterion or practice is a proportionate means of achieving a legitimate aim whereas under ETAD it must also be appropriate and necessary.34

The response to the consultation set out the following reasons for retaining a formula of justification in terms of “a proportionate means of achieving a legitimate aim”:

7.26 We consider that the wording “appropriate and necessary” is problematic in domestic discrimination legislation because of the extreme exigency associated with “necessity” in domestic law. If this wording were to be used there might be a risk that that this would be interpreted by the courts as an overly-strict requirement (for example, in order to satisfy the test the provision, criterion or practice would have to be the only possible means of achieving the legitimate aim). We therefore believe it is better to require that the justification be a “proportionate means of achieving a legitimate aim”, and we propose to harmonise the test on this basis.35

F. Discrimination arising from disability: clause 14

Clause 14 of the Bill is a new provision which is aimed at re-establishing an appropriate balance between enabling a disabled person to make out a case of experiencing a detriment which arises because of his or her disability, and providing an opportunity for an employer or other person to defend the treatment. The aim of the clause is to achieve a similar outcome for disabled people as that achieved by the concept of disability-related discrimination prior to the House of Lords judgment in Mayor and Burgesses of the London Borough of Lewisham LBC v Malcolm36 (henceforth Malcolm).

34 Fawcett Society, Gender Equality in the 21st century: modernising the legislation, April 2006: http://web.archive.org/web/20071106224932/http://www.fawcettsociety.org.uk/documents/low_res_final2. pdf 35 GEO, The Equality Bill – Government Response to the Consultation, CM 7454, July 2008, page 100 36 [2008] UKHL 43

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1. Background

The 1995 Disability Discrimination Act (DDA) includes provisions that protect disabled people from being discriminated against for a reason related to their disability. In order to determine that the treatment is discriminatory it is necessary to show that the individual has been treated less favourably than other people to whom that disability-related reason does not, or would not, apply, and that the person or organisation that treated the disabled person less favourably cannot justify that treatment.

The judgment by the House of Lords in 2008 in Malcolm undermined the DDA’s concept of disability-related discrimination. The case concerned possession proceedings by a local authority landlord against a tenant. However, because the DDA’s definition of disability-related discrimination is the same for premises and employment cases, the decision has wide ramifications. The protection offered to disabled people who experience less favourable treatment for a reason related to their disability is viewed as “much weaker” post Malcolm.37 In reaching its decision, the House of Lords ruled that disability-related discrimination only occurs if a non-disabled person, to whom the same reason for the treatment in question would apply, would be accorded more favourable treatment.

2. Malcolm: The facts

In 1985 Courtney Malcolm (M) was diagnosed with schizophrenia. In the five years after the diagnosis he was admitted to hospital on ten occasions, twice under the 1983 Mental Health Act. His condition was subsequently stabilised by medication. In January 2002 he was granted a secure tenancy by Lewisham Council. A standard feature of a secure tenancy is that tenants may not sublet their dwellings without the landlord’s consent. Section 93 of the 1985 Housing Act provides a ground for possession against secure tenants who sublet the whole of the dwelling – in effect the tenancy ceases to be secure if the tenant does not live there and once secure status has been lost it cannot be revived.

M exercised his right to buy the flat in March 2002 but completion was delayed. In June 2004 he moved out and sublet the flat without the landlord’s consent. His tenancy therefore ceased to be secure at that point. In October 2003 M’s family confirmed that his behaviour had changed. In April 2004 it was discovered that he had not been taking his medication for some time, possibly since late 2003. In May 2004 he lost his job. In July 2004 Lewisham Council discovered that the tenancy had been sublet and served notice to quit as M’s right to buy purchase had not been completed. In December 2004 the Council issued proceedings for possession of the flat.

The 1995 DDA precludes a manager or premises from discriminating against a disabled person who occupies the premises by evicting them or subjecting them to any other detriment for a reason related to their disability. M defended the possession proceedings arguing that he was a disabled person under the DDA and that his subletting was a

37 Office for Disability Issues, Improving Protection From Disability Discrimination, November 2008, p10

27 RESEARCH PAPER 09/42 consequence of his disability. Thus if the court granted a possession order this would represent disability-related discrimination (i.e. without justification, subjecting him to less favourable treatment for a reason related to his disability).

3. The initial hearing

At the hearing for possession in the county court HHJ Hallon granted the possession order and identified four issues which formed the basis of the subsequent appeal:

 The DDA did not provide a defence to a non-discretionary ground for possession.  M did not fall within the definition of a disabled person within the meaning of section 1 of the DDA.  M’s actions were not caused by his illness.  She suggested that there could be no discrimination unless Lewisham Council had knowledge of the tenant’s disability but did not find it necessary to reach a final decision on this issue.

4. The Court of Appeal

M appealed against this decision; the Disability Rights Commission intervened in the appeal. The Court of Appeal upheld the appeal on all four issues and dismissed the Council’s claim for possession. Specifically:

 M could rely on section 22(3)(c) of the DDA despite Lewisham’s right to a possession order and the court’s lack of discretion to refuse the order. A court should dismiss possession proceedings where satisfied that their pursuit is unlawful under s22(3)(c). A court should not lend its assistance to an unlawful act.  The trial judge has been wrong to hold that M’s mental impairment did not have a substantial adverse effect on his ability to carry out day-to-day activities for the purposes of the DDA.  The trial judge had been wrong to hold that Lewisham’s reason for starting possession proceedings was not “related” to M’s disability for the purposes of DDA s24(1)(a). She should have found that there was an appropriate relationship between M’s subletting and his disability even though it was not shown that his disability caused him to enter into the subletting arrangement.  The majority (Arden and Longmore LJJ) held that Lewisham’s lack of knowledge of M’s disability did not preclude a finding of discrimination contrary to DDA s24. Arden LJ endorsed an approach which had been taken in a previous case (Romano), namely that treatment contrary to the DDA could occur even though the provider of services had no knowledge of the facts which constitute the disability and no knowledge that those facts amount to a disability under the DDA. Toulson LJ differed on the question of knowledge. He did not believe that Parliament had intended to make a person liable in tort for disability discrimination where that person had no awareness, or grounds for awareness at

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the relevant time, that the complainant was disabled or that this might have any connection with the matters giving rise to the treatment in question.38

5. House of Lords

The Malcolm appeal was heard on 28 and 29 April 2008 by Lords Bingham, Scott, Brown, Neuberger and Baroness Hale. Judgment was handed down on 25 June 2008. The Lords unanimously agreed that Lewisham’s appeal should be allowed and the possession order reinstated.

6. The implications of Malcolm

The key issue raised by this case is, when determining the reason for the treatment in question, with whom should the claimant be compared to in order to determine whether or not discrimination has taken place? Was the comparator “other tenants” or “other tenants who had sublet their flats”? A majority in the Lords accepted that it was the latter. In making this judgment the House of Lords overturned the definition of disability-related discrimination established in Clark v Novacold Ltd.39 Lords Scott and Brown were satisfied that Novacold had been wrongly decided. A summary of Novacold is reproduced below:

1. Mr Clark sustained a back injury which resulted in his being a disabled person for the purposes of the Disability Discrimination Act. A consequence of the disability was that he would have had to be absent from work for about a year. He was dismissed from his job because of this prognosis. 2. The Court of Appeal had to decide who to compare Mr Clark with in order to determine whether he had been treated less favourably. It identified two possible comparators: (a) someone who did not have a disability but who was likely to be absent from work for about a year for other reasons; or (b) someone who did not have a disability and who would remain in work for that period. 3. The Court of Appeal found that the correct comparator was (b). Thus, the test of less favourable treatment was based on the reason for the treatment of the disabled person: the disability-related absence and not the fact that Mr Clark was disabled. 4. The effect of the Novacold judgment was to make it relatively easy for a disabled person to demonstrate that he had been treated less favourably for a reason related to his disability. 5. The Court of Appeal found that the employer would have discriminated against Mr Clark by dismissing him, unless it could show that the less favourable treatment was justified.40

Essentially, the decision in Novacold recognised that the definition of disability-related discrimination differed from sex or race discrimination in that it did not require a “like for like” comparison because such a comparison may not be appropriate between a

38 Lewisham LBC v Malcolm and Disability Rights Commission (intervener) [2007] EWCA Civ763, 25 July 2007; [2008] 1 Ch 129 39 [1999] EWCA Civ 1091, 25 March 1999; [1999] ICR 951 40 Impact Assessment on the Bill, Annex D

29 RESEARCH PAPER 09/42 disabled and non-disabled person. Indeed, Parliament’s intention that the 1995 DDA should cover instances of indirect discrimination was made clear by the then Minister, William Hague:

The Bill is drafted in such a way that indirect as well as direct discrimination can be dealt with. We have adopted a definition of discrimination that leaves disabled people with the practical solutions to the real problems they face – however they are categorised. A situation where dogs were not admitted to a café, with the effect that blind people would be unable to enter it, would be a prima facie case of indirect discrimination against disabled people and would be unlawful.41

It was widely accepted that that the Malcolm judgment dealt a serious blow to disability- related discrimination claims. Defences to possession proceedings are currently restricted, in the main, to allegations of direct discrimination. Specialists in the field of disability discrimination suggested that the impact may greatest in the sphere of employment, the field with the most claims under the DDA.

7. Consultation on a solution

In November 2008 the Office for Disability Issues (ODI) published a consultation paper, Improving Protection From Disability Discrimination, in which it said that the Malcolm judgment had “shifted protection under the DDA away from the Government’s policy intention.”42 In formulating its proposals the ODI said that it had taken account of the anticipated requirements of proposed European anti-discrimination legislation which, if adopted, will require the Government to apply the principle of protection from indirect discrimination for disability in domestic anti-discrimination law. The solution proposed in the consultation paper involved replacing disability-related discrimination with the model of indirect discrimination. The ODI defined indirect discrimination as follows:

The concept of indirect discrimination takes the approach set out in Article 2(2)(b)(i) of the [European] Framework Employment Directive.[…]

Indirect discrimination occurs where someone applies to both people in the protected group and to others an apparently neutral provision, criterion or practice

which puts, or would put, persons sharing the protected characteristic at a particular disadvantage compared with other persons; and

which puts, or would put, an individual with the protected characteristic at that disadvantage,

unless that provision, criterion or practice can be objectively justified as being a proportionate means of achieving a legitimate aim.

When the comparison is made between the individual and the comparator group, there must be no material difference between the circumstances relating to each, apart from the protected characteristic e.g. race, sex, etc.43

41 HC Deb 24 January 1995 c150 42 ODI, Improving Protection From Disability Discrimination, November 2008 p19 43 Ibid, p21

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Respondents to the Consultation Paper broadly supported action to rectify the impact of Malcolm but a majority opposed the use of indirect discrimination to achieve this. There was support for re-instating a modified form of disability-related discrimination.

The EHRC supported the extension of indirect discrimination to disability but did not believe it could be relied upon alone “to recognise often unique instances of disability discrimination or to achieve the goals of harmonised protection and simplification”. It indicated:

68. Whichever model is adopted in the Equality Bill to put right the problems caused by the Malcolm judgment, in order to achieve the Government's stated policy aims it must:  protect against disability discrimination which affects both individuals and groups  protect against one-off acts of discrimination  overcome difficulties in identifying comparator pools for varied and varying disabilities  not be dependent on a duty holder having knowledge of disability, or its effects/consequences, to discriminate unlawfully  provide a fair balance by means of objective justification defence between disabled people rights and interests for duty holders44

Evidence submitted to the Work and Pensions Select Committee’s inquiry, The Equality Bill: how disability equality fits within a single Equality Act, by employers’ organisations expressed similar concerns:

CBI members argue that "the pre-Malcolm interpretation of the DDA was widely understood and familiar to employers and employees alike, not to mention more effective in its protection of disabled people: in this light, the reversal of the Malcolm judgment might be the preferred option." Employers' Forum on Disability members conclude that "the Equality Bill should re-introduce less favourable treatment for a reason related to disability but without the need for a comparator as well as introducing indirect discrimination into disability legislation." A number of submissions agree with this position.45

The Committee itself concluded:

We received evidence that the Government's response to the Malcolm judgment of introducing indirect discrimination in disability legislation will not provide the same level of protection as was previously provided pre-Malcolm. The pre- Malcolm interpretation of the disability legislation was widely understood and familiar to employers and employees alike. The Government should use the opportunity the Equality Bill presents to reform provisions for disability-related discrimination to re-establish the situation that existed before the Malcolm judgment. This could be achieved by removing the requirement for a comparator, in line with current sex discrimination law regarding pregnant women.46

44 EHRC response to Improving Protection From Disability Discrimination, January 2009 45 HC 158, Third Report of Session 2008-09, 29 April 2009, para 31 46 Ibid para 34

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At the end of April 2009 the Government published its response to the consultation process.47 This paper contains a detailed analysis of the 79 written responses received during the consultation period. While support was certainly registered for applying the standard indirect discrimination provisions to disability, a majority favoured an additional step which amounted to restating disability-related discrimination either by putting the Novacold judgment on a statutory footing or by introducing a new provision without a comparator.

The Government was persuaded by the views expressed by respondents to the consultation and stated that, as well as extending indirect discrimination to disability cases, it would “include in the Equality Bill a provision which provides a renewed form of protection from discrimination that arises from the disabled person’s disability.”48

8. The Bill

Clause 14 of the Bill introduces the concept of discrimination arising from disability. In addition, clause 18 replaces similar legislation which defines indirect discrimination (which already applies in the case of sex and race discrimination) and extends this concept to cover disability as a “protected characteristic.”

Thus the Bill meets many of the concerns expressed in responses to Improving Protection From Disability Discrimination as it provides a specific provision to tackle detrimental treatment of a disabled person which arises because of their disability. The clause does not simply restate the disability-related discrimination provisions in the 1995 DDA. There is no requirement for a comparator, this simplifies the test and should make it easier for disabled people to demonstrate discriminatory treatment. Discrimination will occur if A treats B in a particular way because of B’s disability where this treatment amounts to a detriment.

A charge of discrimination under this clause could be successfully defended only if A can show that the treatment is “a proportionate means of achieving a legitimate aim.” This “objective justification test” is in line with other disability discrimination provisions in the Bill. Significantly, in order to establish discrimination under this clause, A must have known, or must reasonably have been expected to know, that B was disabled. Discrimination will still be possible where A has complied with a duty to make reasonable adjustments in relation to B. The Government has provided the following justification for the requirement of “knowledge” of a person’s disability:

Our aim in respect of treatment of knowledge is to achieve a balance between the right of the disabled person to keep their disability confidential, and the right of the duty holder not to be held liable for discrimination on the basis of a disability of which the duty holder was not aware and had no reason to be aware. We examined whether the question of knowledge might be addressed as part of the consideration of justification. However, because objective justification must be based on the facts of the particular case, the matter of whether the duty holder

47 ODI, Consultation on Improving Protection From Disability Discrimination: Government Response, April 2009 48 Ibid p17

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had, or could reasonably be expected to have, knowledge of the disabled person’s disability may not be considered as part of establishing objective justification.

We have concluded that the question of knowledge should be considered as part of establishing whether there has been detrimental treatment of the disabled person that arises from the person’s disability.49

When giving evidence to the Work and Pensions Committee, Catherine Casserley, Chair of the Discrimination Law Association, referred to the question of “knowledge” in disability discrimination cases:

The importance of the Equality Bill is actually making sure that we get to a position that we were in prior to Malcolm and that the consequences of disability and less favourable treatment based on those is actually addressed by the bill itself and not as indirect indiscrimination. Prior to Malcolm knowledge had never been a feature of disability related discrimination; knowledge was dealt with in the context of justification. I think it is very important to preserve that aspect of what was called disability related discrimination. It is important that employers and others think about the consequences of what they do when they are treating someone differently because of what is in essence a consequence of their disability. We would certainly think it is important that in the Equality Bill the issue of knowledge was addressed and it was made clear that you do not have to have knowledge of someone's disability in order for you to potentially discriminate, not necessarily definitely discriminate, potentially discriminate. It is particularly important given how people are often reluctant to disclose their disabilities both in the recruitment context but also when someone is in a job because of fear of the adverse consequences if they do disclose.50

In the light of this evidence, which was given before the Government’s solution to the Malcolm case had been finalised, the question of employers and others having to have knowledge of someone’s disability before a finding of discrimination can be made, may prove controversial. The explanatory notes to the Bill provide the following examples of how clause 14 might operate:

An employee develops a visual impairment and can no longer operate a computer without assistive technology. The employer makes an adjustment by providing a Braille keyboard, but the firm’s computer system is not compatible with assistive software. The employee is dismissed because he cannot do as much work as a non-disabled colleague. If the employer sought to justify the dismissal, he would need to show that it was a proportionate means of achieving a legitimate aim.

A person with a learning disability is ejected from a restaurant because she is eating in a messy way, which is an effect of her disability. As the restaurant owner shows that he did not know, or could not reasonably be expected to know, that she was disabled, he has not subjected her to a detriment because of her disability.

49 Ibid pp17-18 50 HC 158-II, Third Report of Session 2008-09, April 2009, Ev1

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If, in the example above, the restaurant owner had known that the customer was disabled, he would have subjected her to discrimination arising from her disability, unless he could show ejecting her was a proportionate means of achieving a legitimate aim.51

G. Pregnancy and maternity discrimination: clauses 16 - 17

Clause 16 of the Bill defines what it means to discriminate because of a woman’s pregnancy or maternity, as distinct from her gender, in specified situations in a non work- related context. It would replace the provisions in section 3B of the SDA. Clause 16(1) would make it unlawful treat someone less favourably because of a pregnancy in relation to:

(a) Part 3 (services and public functions); (b) Part 4 (premises); (c) Chapter 2 of Part 6 (further or higher education); (d) Part 7 (associations).

Under clause 16(2) and (3) the period of protection again would be the period of the pregnancy and a period of 26 weeks from the day the woman gives birth.

This clause would provide explicit protection against discrimination because of a pregnancy or maternity in a public authority’s exercise of public functions. For example, this might concern the way a pregnant woman is treated when remanded in custody at a police station. The Impact Assessment accompanying the Bill explains that this explicit protection was given in order to provide consistency with other groups protected by discrimination law in the exercise of public functions.52

The Impact Assessment also reports that 97% of respondents to the Consultation document agreed with the extension here.53 The July 2008 Consultation Response reveals that the British Library thought that there needed to be some control of the provision through objective justification.54 It used the example of a new mother using a library with a fretful baby and causing a disturbance which it thought might not be acceptable to other readers. Clause 16(7) would provide a condition of discrimination being less favourable treatment than is “reasonable”. This is line with the current provisions of section 3B of the SDA.

Clause 16 would also extend explicit protection against pregnancy discrimination to further and higher education and associations where previously there may have been only implicit protection provided by the SDA. The Consultation Document also asked respondents about whether protection from pregnancy and maternity discrimination should be extended to school pupils and education in schools.55 The Government

51 Explanatory notes, para 77 52 Government Equalities Office, Equality Bill – Impact Assessment, April 2009 p85 53 Government Equalities Office, Equality Bill – Impact Assessment, April 2009 p85 54 CM 7454, July 2008, p131 55 The Consultation Paper, June 2007, para 11.8

34 RESEARCH PAPER 09/42 response to the Consultation revealed that 60 per cent were in favour of extending the protection to schools.

Those in favour of extending protection to schools argued that school pupils who are pregnant should be “treated with the same respect as any other woman; they should have access to appropriate services and support during pregnancy and maternity, and should not only have recourse to this through their education provision.”56 The Government disagreed, saying it thought school pupils were best supported on an individual basis; they would not therefore be covered by the new provisions in the Equality Bill:

We consider that pregnant pupils, like pupils with gender identity issues, are best supported on an individual basis rather than by treating them equally with other pupils. Schools should therefore have the flexibility to treat such pupils appropriately and sensitively, in a way that will serve with the individual’s best interests. 10.17 We will not, therefore, extend discrimination protection on grounds of pregnancy and maternity to school pupils in the Equality Bill. The welfare and care of school pupils is already extensively covered by education legislation, common law and the Human Rights Act. Schools are under a duty to provide suitable education to all children, including those who are pregnant. It must remain open to schools to be able to treat pregnant pupils and pupils who have children differently from other pupils, on the basis of providing the necessary individual care and attention to all. The general duty of care on schools should ensure that the right treatment is provided.57

Another change is that clause 16(4) would explicitly make it clear that treating a woman less favourably on the grounds of breast-feeding is unlawful. This is currently something that may be implicitly unlawful by virtue of section 3B of the SDA. The explanatory notes state that, for example, “a café owner must not ask a woman to leave his café because she is breast-feeding her baby.”58

Clause 17: the courts have long held that, as a general principle, discrimination on the grounds of pregnancy could be sex discrimination. It was the implementation of the EU Equal Treatment Directive 2002/73 by amendments to the SDA in 2005 however, that put this general principle on a statutory footing.

The Employment Equality (Sex Discrimination) Regulations 200559 inserted new Section 3A into the SDA which established a “protected period”. Regulation 3A applies to discrimination in work-related cases. During the protected period, less favourable treatment on the ground of the woman's pregnancy, or on the ground that the woman exercises or has exercised a statutory right to maternity leave, is unlawful discrimination. The duration of the protected period is set out in Regulation 3A (3)(a) and relates to the period of maternity leave taken. All female employees are now entitled to 52 weeks

56 CM 7454, July 2008, p133 57 Ibid p133-134 58 Equality Bill, Bill 85-I 2008-09, Explanatory Notes, E12 59 SI 2005/2467

35 RESEARCH PAPER 09/42 maternity leave, regardless of length of service, although there is no obligation to take more than a compulsory two weeks after the birth.

Clause 17 of the Bill replaces this provision and defines discrimination in the workplace because of a woman’s pregnancy, or pregnancy related illness, or because she takes, or tries to take, maternity leave. It provides for the same length of protected period and makes clear that during this period this type of discrimination is now pregnancy and maternity discrimination, not sex discrimination.

In April 2008, the Sex Discrimination (Amendment of Legislation) Regulations 200860 inserted new section 3B into the SDA which made less favourable treatment in the provision of goods, facilities or services unlawful discrimination if the treatment was either:

(a) on the ground of her pregnancy, or (b) within the period of 26 weeks beginning on the day on which she gives birth, on the ground that she has given birth.

The 2008 Regulations were made in order to implement Council Directive 2004/113/EC in the UK (the “Gender Directive”) which implements the principle of equal treatment between men and women in the access to, and supply of, goods and services.

Unlike the 52 weeks provided for in section 3A of the SDA, the protection against pregnancy and maternity discrimination in goods and services in section 3B is for a period of 26 weeks after the birth. The Government considered extending the protection to 52 weeks, but concluded that it would “impose disproportionate burdens on business in their role as service providers.”61 The Government also thought that there would still be protection after this 26 week period by the applicability of other discrimination laws:

Beyond that point, we consider that where a provider of goods or services refuses to serve, or provides with less favourable service, a mother with her baby, she could claim either direct or indirect discrimination on grounds of sex under the existing provisions of the SDA.62

The 2008 Regulations did not make pregnancy discrimination explicitly unlawful by public authorities in the exercise of their public functions, as this was not required by the Gender Directive. The Government stated that this would be done at a later date by the Equality Bill.63

60 SI 2008/963 61 Government Equalities Office, Explanatory Memorandum to the Sex Discrimination (Amendment Of Legislation) Regulations 2008 No. 963, p8 62 Ibid 63 The Consultation Paper, June 2007, para 11.7

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H. Reasonable adjustments: clause 19

1. The duty

The duty to make reasonable adjustments is an approach to discrimination provision that currently only applies to disability, although some have called for it to be applied to other protected characteristics as a more proactive approach in those areas. As it currently exists, it places requirements on employers (and various other individuals and organisations subject to disability discrimination law) to accommodate the needs of disabled people. The concept is potentially extremely broad and so calls for some clarifications and exceptions. Many of these are set out in the Schedules to the Bill: Schedule 2 in relation to services and public functions, Schedule 4 in relation to premises, Schedule 8 in relation to work, Schedule 13 in relation to education and Schedule 15 in relation to associations.

Clause 19 sets out the duty to make reasonable adjustments which will apply specifically to the provision of auxiliary aids in employment and work. The power in the DDA to specify what adjustments are within the duty is retained. Clause 19 also introduces a harmonised wording and threshold for the duty, replacing the two different versions in the DDA that apply separately to employment and education on the one hand; and goods and services on the other. This was explained in the consultation as follows:

11.32 Currently under the law, employers have a duty to consider making a reasonable adjustment whenever an employee or job applicant would be placed at a 'substantial disadvantage' compared with other non-disabled employees/applicants if no adjustment were made. This 'substantial disadvantage' trigger also applies to the Disability Discrimination Act's education provisions.

11.33 In the case of the provision of goods, facilities and services etc, currently service providers must consider making an adjustment when a failure to do so would make it 'impossible or unreasonably difficult' for the disabled person to use the service.

11.34 We intend to simplify the law by introducing a single threshold for making reasonable adjustments, using the threshold that currently applies to the Disability Discrimination Act's employment and education provisions - that is, whenever a disabled person would be at a 'substantial disadvantage' compared to a non-disabled person if no adjustment were made.64

In addition, the duty as it currently applies in the DDA to the provision of goods facilities and services allows for a justification defence. This differs from the approach taken to employment and education and the Government signalled its intention to remove the justification defence:

On balance, we consider that the current possibility of justifying a failure to make an adjustment is unnecessary and superfluous: if the failure to make an

64 GEO, The Equality Bill – Government Response to the Consultation, CM 7454, July 2008, page 143 - 144

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adjustment could be justified, it would be unreasonable [sic] in any case.65 Removing the justification provision will also simplify the law by aligning the employment and non-employment disability anti-discrimination provisions more closely.66

2. Anticipatory duty

The duty to make reasonable adjustments in the employment sphere functions in a reactive way. In the consultation, the Disability Rights Commission proposed an ‘anticipatory duty’ on employers requiring them to anticipate reasonable adjustments that might benefit disabled applicants or employees. The Government rejected this proposal for the following reasons:

An anticipatory duty on employers to make adjustments

11.48 We do not intend to change the employer's duty to make reasonable adjustments so that it is anticipatory. We are, of course, strongly in favour of employers factoring disability considerations into all aspects of their business operations, and there is already a sound economic incentive for them to do so when, for example, undertaking building refurbishment or purchasing new communications and information technology systems.

11.49 However, the employer/employee relationship differs significantly from the service provider/customer relationship in that employees spend a large part of their lives in their working environment. For this reason, it is much more important that adjustments made for them are tailored to the individual and to the specific demands and structure of the job, in consultation with the employee him/herself.

11.50 The anticipatory activity described above is not capable of this individual focus. There is a risk that introducing a legal anticipatory requirement could lead employers to spend money on adjustments which turned out to be unsuited to disabled people they subsequently employed. And having spent money on these anticipatory measures, they might have insufficient remaining resources to make adequate individual adjustments.67

As regards applying the duty to make reasonable adjustments to other equality strands, the Consultation Response had this to say:

5.18 On the more specific questions (should “reasonable adjustments” be extended to other equality strands beyond disability; should all protected groups be able to benefit from measures to meet special needs in relation to education, training, welfare or other benefits?), the great majority of respondents on these points were against extending “reasonable adjustments” (concern about adding confusion; adding burdens; diluting existing protections); and in favour of extending measures to meet special needs, though the Equal Opportunities Commission expressed some detailed concerns about the way in which the current provisions are framed, from a gender equality perspective.68

65 Probably meant to read “it would be reasonable in any case”. 66 GEO, The Equality Bill – Government Response to the Consultation, CM 7454, July 2008, page 143 67 GEO, The Equality Bill – Government Response to the Consultation, CM 7454, July 2008, page 147 68 GEO, The Equality Bill – Government Response to the Consultation, CM 7454, July 2008, page 65

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I. Harassment: clause 24

The Bill preserves existing legislative provisions on harassment. Harassment as it has come to be defined in legislation will probably always be directly discriminatory, but represents a different and more aggravated form of discrimination. In bringing a unified provision for harassment within a single enactment, the Bill will effectively extend free standing harassment provisions to other strands not currently protected by specific harassment provisions. However, the provisions will not cover pregnancy or marriage and civil partnership.

The harassment provisions also do not apply to the protected characteristics of sexual orientation and religion or belief outside work. The reasons behind this were alluded to in a Government Equalities Office (GEO) memorandum to the Joint Committee on Human Rights:

92. The Government has decided not to extend freestanding harassment protection related to sexual orientation and religion or belief outside the workplace and institutions of further and higher education (where there are EC obligations). [...] However in these areas the Bill will not pre-empt any extension of EC law on harassment in relation to these protected characteristics into non- work areas. The Government has decided to extend harassment protection outside the workplace to cover age and disability. 69

The European Commission has proposed new legislation covering discrimination beyond the workplace.70

Liberty’s briefing on the Bill questions these exceptions:

Liberty cannot see why a woman who is harassed because she is pregnant or a person who is harassed because he or she is married or in a civil partnership, should not be protected under this legislation. In addition, clause 27(8) provides that religion or belief and sexual orientation are not protected characteristics when it comes to harassment in the provision of services or an exercise of a public function. No reason is given as to why these are excluded here. Again, Liberty cannot see why it would be acceptable for a person to harass another on the basis of their religion or sexual orientation when providing (or not providing) a service – and particularly when exercising a public function (examples including law enforcement and medical treatment on the NHS). The government must fully explain this omission which leaves a large gap in protection for many people.71

69 GEO, Letter dated 05/05/2009 from Vera Baird MP to Andrew Dismore MP regarding the Equality Bill - Human Rights. Inc a memorandum, 5 May 2009, Deposited paper DEP2009-1293 70 European Commission, Employment, Social Affairs and Equal Opportunities news release, EU proposes protection from discrimination beyond the workplace, 2 July 2008 71 Liberty’s Second Reading Briefing on the Equality Bill in the House of Commons, May 2009

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J. Victimisation: clause 25

In the Consultation Response the Government said it would “align the approach to victimisation with the approach taken in employment law”.72 This is achieved in clause 25 providing a single definition encompassing all areas and protected characteristics, including in the case of gender equality, equal pay and terms of employment. The substantial change is explained in the explanatory notes as follows:

105. This clause replaces similar provisions in current legislation. However, under the Bill victimisation is technically no longer treated as a form of discrimination, so there is no longer a need to compare treatment of an alleged victim with that of a person who has not made or supported a complaint under the Bill.

It was also argued in the Consultation responses that the fear of victimisation might also be reduced by procedural mechanisms in courts and tribunals that would allow collective claims.73 In the Consultation Response the Government also indicated that it would:

... harmonise protection for children from victimisation in the education field, where their parent or sibling does a protected act (for example makes a complaint or supports someone else’s complaint) under the legislation. Currently such protection only applies to a protected act done under the Disability Discrimination Act.74

This was not a proposal that had been previously put in the consultation but was identified later and included in the response.75

K. Services and public functions: clause 190 and schedule 3

1. Overview

In many cases the historical development of anti-discrimination law has started with protection in the employment field alone and then been extended to other areas such as the provision of goods and services and then later to the exercise of public functions. Discrimination in the fields of services and public functions is dealt with in Part 3 of the Bill. Exceptions are dealt with in Schedule 3. Most of this replicates existing law however, protection will be extended in the following areas:

For the first time age discrimination in areas outside employment will be covered. Those under the age of 18 will not be covered. Clause 190 gives ministers a Henry VIII power76 to amend primary legislation, including the Bill if it becomes an Act, to specify exceptions to this protection or outlining how it might apply in a modified form in specified circumstances. In the course of consultation the Government set up working groups to

72 GEO, The Equality Bill – Government Response to the Consultation, CM 7454, July 2008, page 7 and 94 73 GEO, The Equality Bill – Government Response to the Consultation, CM 7454, July 2008, page 82 74 GEO, The Equality Bill – Government Response to the Consultation, CM 7454, July 2008, page 94 75 GEO, The Equality Bill – Government Response to the Consultation, CM 7454, July 2008, page 101 76 Statutory instruments made under provisions of Acts which allow the instrument to change the parent Act itself, or to change other primary legislation, known as Henry VIII clauses, after an early example of such a power conferred on King Henry VIII by the Statute of Proclamations 1539.

40 RESEARCH PAPER 09/42 look specifically at impacts on financial services and health and social care in terms of justifiable age-based practices that should be allowed to continue. The Bill only contains a provision in Schedule 3, Part 5, exempting existing insurance policies concluded prior to the Bill's provisions coming into effect (paragraph 22). Accordingly, the detail of how age discrimination will apply in services and public functions is likely to be provided for in regulations amending primary legislation arising from the Bill.

Also in Schedule 3, Part 6, exceptions are set out covering those who provide separate services for men and women, or single sex services, subject to a justification requirement that this be “a proportionate means of achieving a legitimate aim”. These exceptions have been extended to cover all services whether publicly or privately provided. Currently under the SDA only public functions are covered. This means that a service provider will be able to deliver separate services for women and men in different ways to a different extent, or single sex services, subject to justification. Minor changes are made in these regards in relation to the provision of such services by ministers of religion (Schedule 3, Part 6, paragraph 26). Paragraph 27 of the Schedule also provides exceptions for “services generally provided only for persons who share a protected characteristic” subject to a qualification in terms of refusal to provide a service stated in terms of what would be “reasonably ... impracticable”. This exception currently exists in the Sex Discrimination Act 1975 and the Equality Act 2006. The Bill it will extend the exception across all other protected characteristics.

In Clause 29(5) there is a new provision limiting the liability of employers who arrange services only for their employees. In those circumstances the employer will not be regarded as a service provider and the employees will be regarded as a section of the public. This will apply to all characteristics protected in the field of services and public functions.

2. Insurance

Of all the trades and professions affected by anti-discrimination legislation insurance is one with most to concern it. Insurance is one consumer service that, on the face of it, embeds ‘discrimination’ into its very nature, age and gender being the most obvious examples. Older people can struggle to find affordable travel insurance. A benefit of middle age is lower car insurance premiums whilst young people receive more favourable terms on life insurance. Gender is another area in which the terms on which insurance is offered varies. Lower car insurance premiums for younger women than same aged men; women receive lower annuity rates on pensions because they live longer than men of the same age.

Insurance has been exempt from previous anti discrimination legislation through exemptions in the 1975 SDA. The clear deviation from the normal doctrine of no discrimination has itself been challenged both here and within the EU policy framework.

The Consultation document discussed the insurance issue.

1.82 There are specific provisions in the Sex Discrimination Act and regulations made under the Disability Discrimination Act which allow different treatment in the supply of insurance products, provided this treatment is reasonable and based on actuarial or other data or information from a source on which it was reasonable to

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rely. This permits insurers to treat certain groups differently if belonging to one category of persons or another is indicative of posing a different level of risk.

1.83 In Chapter 9, we consider the case for providing protection against discrimination on grounds of age in the provision of goods, facilities or services and the exercise of public functions. If such protection were to be introduced, we believe it would be necessary to allow different treatment on grounds of age in insurance, on the lines of the provisions that currently apply in sex and disability discrimination law, i.e. provided this treatment is reasonable and based on actuarial or other data or information from a source on which it was reasonable to rely.77

The basic principle, or defence for the industry, is that if there is an actuarial, or risk, basis for a charging bias then it is exempt: the actuarial defence. The document continued by looking at the orientation specific question. It said:

1.85 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. The latest guidance from the Association of British Insurers makes clear that insurers should not ask about sexual orientation or any HIV negative tests, but instead base their assessment of risk on answers provided about actual behaviour, regardless of sexual orientation.78

A challenge to the continued exemption of insurance from standard non-discrimination law arose in the European context during the passage of the European Union's Equal Treatment (Gender) Directive.

The first draft of the Gender Directive, introduced by Anna Diamantopoulou, then EU Commissioner for Employment and Social Affairs, was voted through the European Parliament at the end of March 2004. Its provisions banned the use of statistical criteria by insurers on the differences between men and women on issues like life expectancy or driving records. Insurers would also be unable to develop 'women-only' products.

Following a sustained campaign by the European insurance industry the ‘actuarial defence’ was reinstated and the directive passed. The Association of British Insurers (ABI) outlined their broad arguments in an article in Insurance Age. They cited the European federation:

77 DCLG, Discrimination Law Review – A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain, June 2007

78 http://collections.europarchive.org/tna/20080610234811/http://www.communities.gov.uk/documents /corporate/pdf/325332.pdf

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Daniel Schante, director-general of the Comite Europeen des Assurances (CEA), the European federation for the insurance and reinsurance industry, responded: "As far as insurance is concerned, the directive, though well-intended, will not achieve its objective, and will end up harming those it is meant to help. Banning the use of objective and relevant data such as gender will adversely affect fair insurance prices and could well lead to a rise for both men and women."79

More recently, the ABI commissioned an independent survey on the impact of age discrimination rules on the industry in Insurance and Age Based Differentiation.80 Its main findings were:

More than 99% of customers aged 65 and over are able to obtain motor insurance and more than 98% of customers aged 65 and over are able to obtain travel insurance.

• The evidence for any form of age-related intervention on the grounds of market failure is weak.

• In the motor insurance market, upper age limits have been increasing over time, but concerns about adverse selection means that some insurance companies are unwilling to unilaterally remove them.

• In the travel insurance market, informational problems mean that some older consumers are required to take time searching for a provider who will offer them a quote.

• A range of policy options have been considered (removal of age limits, narrowing of age bands, signposting and referrals). The net benefits of these policies vary but are small in all cases.

Having survived one attack on the actuarial defence in Europe, the ABI was confident that “insurers are in a robust position" to maintain the exemption in the current Bill.

Part 5 of Schedule 3 restates some existing exemptions for insurance contracts from the non-discrimination principle; disability Schedule 3 (20) and sex, gender reassignment and pregnancy (21) are included as is an exemption for all existing insurance contracts (22). There is, however, no exemption from age discrimination. Under clause 190 of the Bill:

A Minister of the Crown may by order amend this Act to provide that any of the following does not contravene this Act so far as relating to age.

(a) specified conduct;

(b) anything done for a specified purpose;

(c) anything done in pursuance of arrangements of a specified description.

79 Insurance Age 1 January 2005 80 ABI Research Paper No 12 2009

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Potentially this section could be invoked to provide the insurance industry with a defence against action against it on the grounds of age discrimination but there is no official indication that this will follow.

3. Health and social care

The Bill is likely to impact on the NHS in a number of ways but Government plans for introducing the new powers to ban age discrimination in goods and services into the NHS have attracted particular attention. This is because the Government’s response to the consultation suggested that implementation might be most difficult in health and social care and that these two areas would therefore be treated differently from most other public services:

Recent research suggests that implementation challenges will be greatest in the health and social care sectors, so we anticipate that this sector will require the longest transition period.81

The Response document said that the Department of Health had commissioned two literature reviews and two research studies on the costs and benefits of eliminating age discrimination in the provision of health and social care. Links to each of these can be found on the Department of Health website at: http://webarchive.nationalarchives.gov.uk/20090217045232/http://www.dh.gov.uk/en/Pub licationsandstatistics/Statistics/index.htm

The Response document also said that in order to aid the development of legislation, there would be a financial services working group, which would submit a final report by the end of September 2008, and another group for all sectors other than financial services and health and social care. As for health and social care:

We will make a separate statement after the parliamentary recess setting out a defined programme of work to tackle age discrimination in the health and social care sectors and to help service providers prepare for legislation.82

Some of the press took this to mean that prohibitions against age discrimination in health and social care would be delayed indefinitely 83

On 11 November 2008, Phil Hope, Minister at the Department of Health, made a statement in which he said that the Government would be setting up an advisory group whose work would start in December 2008 and would be expected to 18 months The Government would then consult on possible exceptions to the ban on harmful age discrimination in health and social care. The statement is reproduced in full below:

The Minister of State, Department of Health (Phil Hope): The Government’s response to the consultation on reform of discrimination law, published on 21 July 2008, gave a commitment that the Government

81 GEO, The Equality Bill –Government Response to the Consultation, Cm 7454, July 2008, page 40. 82 As above, page 10. 83 See, for example, “Elderly could be denied NHS treatment as ministers dither,” The Daily Telegraph, 12 November 2008.

44 RESEARCH PAPER 09/42 would make a statement after the parliamentary recess setting out a defined programme of work to tackle age discrimination in the health and social care sectors and to help service providers prepare for legislation.

This programme of work will address age equality issues in health and social care. It will inform the implementation of the Equality Bill, planned for next Session, which, subject to parliamentary approval, will ban harmful discrimination on grounds of age against people aged 18 and over, and will also consider non-legislative measures to tackle age discrimination.

The work will be underpinned by the following principles:

. age discrimination and unfair treatment based on age have no place in a fair society, which values all its members;

. personalisation means that individuals’ needs for health and social care should be on the basis of their individual condition and circumstances, not general assumptions about their age;

. services should be differentiated by age only where this is objectively justifiable; and

. services for all people should be subject to achieving overall value for money in the use of public funds.

We plan to take the following action:

. we shall seek views of stakeholders including professions and service commissioners and providers via the Departmental National Stakeholder Forum, the Social Partnership and the Third Sector Sounding Board, by running a learning event by the end of November 2008. This will raise awareness with a view to setting up an advisory group shortly afterwards;

. we shall establish an advisory group to include key stakeholders with an interest in using, providing or commissioning services, training those who provide care, and monitoring action on age equality. The group will have a remit to produce advice to the Government to include:

. identifying where age discrimination may occur in health and social care;

. setting parameters for obtaining evidence of current policies, practice and service organisation which does or may result in age discrimination;

. consideration of possible exceptions to a ban on unjustifiable age discrimination;

. consideration of what action the Department and others may need to take to remove unjustifiable age discrimination in the provision, organisation and experience of health and social care; and

. consideration of costs, risks and benefits of differentiation of services for different age groups, to inform a compulsory impact assessment.

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Departmental officials will support the advisory group which will be extended and supported by:

. a reference group of interested organisations and networks to get widest input and debate;

. sub-groups for specific areas, for instance mental health and social care could start work on implementation plans in advance of other areas of healthcare for which evidence is not yet available; and

. a technical analysts’ sub-group that will give advice on evidence gathering and analysis.

We will publish a summary of the group’s discussions and any advice it produces on the Department’s website and will encourage wider participation in its discussions through stakeholder engagement.

We expect that the advisory group’s work will take 18 months to complete. It will start in December 2008. An early task will be to establish provisional milestones for the phases of work, including on the key services and sectors. Emerging evidence from the work will be used as it becomes available to inform the ongoing development of policy and priorities on the provision and commissioning of health and social care, and this will contribute to discussion on action to address age equality in health and social care.

The advisory group will draw on existing departmental stakeholder networks, and new ones, such as National Voices, as they become available.

The Government will undertake consultation on possible exceptions to the ban on harmful age discrimination—in health and social care—taking account of the findings of the advisory group when it has completed its work.84

Since then an Early Day Motion (EDM 458) has expressed concern that secondary legislation on anti age discrimination in health and social care should be brought forward as soon as possible after Second Reading of the Equality Bill and not be subject to a lengthy delay before enactment. At the time of writing (30 April 2009), the EDM had 172 signatures.

On the day that the Equality Bill was published, Phil Hope made another statement about age discrimination in health and social care, in which he announced that the Government was setting up a review to support delivery of the Equality Bill’s age provision in health and social care and that the review would publish a report in October 2009. In the light of the report’s recommendations and “the Government’s desire to implement the ban as soon as practicable”, the review would set the date(s) from which the provisions relating to health and social care should commence. The statement is reproduced in full below:

84 HC Deb 11 Nov 2008 c48WS

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The Minister of State, Department of Health (Phil Hope): The Government are today publishing the Equality Bill. The Bill outlaws unjustifiable age discrimination against people aged 18 and over by those providing services and exercising public functions. Secondary legislation under the Bill will allow conduct that does not contravene the ban to be specified and the ban can be brought into force at different times in different sectors.

To support delivery of the Equality Bill’s age provisions in health and social care, my right hon. Friend the Secretary of State for Health has asked Sir Ian Carruthers, chief executive of the south-west strategic health authority, and Jan Ormondroyd, chief executive of Bristol city council, to lead a national review from the south west region. The review will provide the Secretary of State with advice and recommendations in the form of a published report in October 2009, which will set out what it will mean in practice to implement the ban in health and adult social care and what actions need to be taken. In the light of these recommendations and the Government’s desire to implement the ban as soon as practicable, the review will set the date(s) from which the provisions relating to age in health and social care should commence.

A national joint implementation unit will also be hosted by the south-west region.

The review will work in a transparent and collaborative manner, drawing on the expertise of a wide range of stakeholders including third sector organisations.

The Secretary of State has also asked Sir Ian and John Dixon, immediate past president of the association of directors of adult social services, jointly to chair the Department of Health Advisory Group on Age Discrimination, which was announced in a written statement on 11 November 2008. The group will support the review.

The review will support the Government’s broader aspiration to deliver high quality care for all, including by means of more personalised, age- appropriate services.85 a. NHS Constitution

Meanwhile a Health Bill has been introduced into the House of Lords and is making its way through Parliament. It contains provisions requiring NHS bodies that provide services to have regard to the NHS Constitution when performing NHS functions. The draft constitution published for consultation in June 2008 did not include provisions on age discrimination but when the NHS Constitution itself was published in January 2009, it did include age. It says:

You have the right not to be unlawfully discriminated against in the provision of NHS services including on grounds of gender, race, religion or

85 HC Deb 27 Apr 2009 c36WS

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belief, sexual orientation, disability (including learning disability or mental

illness) or age.86

Age discrimination is, also mentioned in the Handbook to the Constitution, which explains: The Government intends to use the Equality Bill to make unjustifiable age discrimination against adults unlawful in the provision of services and exercise of public functions. Subject to Parliamentary approval, this right not to be discriminated against will extend to age when the relevant provisions are brought into force in the health sector. L. Definition of public functions: clause 29

Clause 29(4) defines what is to be regarded as a ‘public function’ in terms of the definition contained in the Human Rights Act 1998 (HRA). This definition has not been free from controversy. Some consider that the way the courts have interpreted the scope of public functions is too narrow.

Under section 6 HRA it is unlawful for a “public authority” to act in a way that is incompatible with a convention right. The HRA does not provide a list of public authorities to which it applies. There have been issues about how far the term should extend. For the purposes of section 6, the term includes “any person certain of whose functions are functions of a public nature.” (s.6(3)). In addition, s.6(5) states that a body is not a public authority in this context “if the nature of the act is private.”87 This issue is therefore problematic where public services are provided by the private sector or in circumstances where it may be difficult to be certain whether actions are of a public nature (examples may include the subcontracting of what were formally public functions - such as the operation of private prisons).

The provision of residential care for the elderly has become the focus of a great deal of discussion. In the case of YL v Birmingham City Council and others88, the House of Lords decided by a majority of 3 to 2 that a private care home providing accommodation to elderly residents under contract with a local authority was not itself exercising “functions of a public nature” for the purposes of the Human Rights Act.89 The issue of human rights in private care homes was debated during the passage of the Health and Social Care Bill, which was subsequently amended.90 The Health and Social Care Act 2008 therefore provides that a private care home which provides services which have been arranged by a local authority is to be treated as if it is performing a public function.

86 http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_093419

87 An act which is of a private nature would be governed by private law (eg: contract or tort law.) 88 [2007] UKHL 27 89 Alexander Williams, “YL v Birmingham City Council: Contracting out and ‘functions of a public nature” [2008] E.H.R.L.R. Issue 4 p.524-531 analyses the reasoning behind the decision in the YL case. 90 Inserted before Clause 138, plus a consequential amendment

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The broader effect of the YL case remains as yet unchanged. The Human Rights Act (Meaning of Public Authority) Bill91 (a Private Members Bill introduced by Andrew Dismore MP) has proposed that a set of factors should be taken into account in determining whether a function is of a public nature. In “A Bill of Rights for the UK?”92 the JCHR considers the inclusion of this broader issue in the consultation process on a Bill of Rights. The Committee states that “the resolution of the YL problem in the HRA itself is relatively straightforward and need not await the outcome of the Bill of Rights process… [but] whatever happens in the interim in relation to the HRA, we are clear that any UK Bill of Rights should find a way of achieving what was originally intended in the HRA, that is, binding private persons or bodies performing a public function.” M. Premises: clauses 30 - 35

Part 4 (clauses 30 to 35, but see also the section on clause 34 below) of the Bill will replace existing provisions in the 1995 Disability Discrimination Act (DDA, as amended) which make it unlawful to discriminate against, harass or victimise a person when disposing of (for example, by selling or letting) or managing premises.

Where an act of discrimination, harassment or victimisation is made unlawful by other Parts of the Bill covering work or education then those provisions, rather than the premises provisions, apply. Accommodation provided on a short-term let basis or as part of a service or public function is covered by Part 3 of the Bill.

Part 13 of the Bill (clauses 182 and 183 together with Schedule 21) replaces existing provisions in the 1995 DDA (which apply only in England and Wales) to enable certain disabled tenants or occupiers of rented residential premises to seek consent to make a disability-related improvement to their homes where the lease requires the landlord’s consent before such alterations can be made.

Clause 34 (leasehold and commonhold premises and common parts) together with Schedule 4 replaces similar provisions relating to let premises and premises to let but this clause contains new provisions in relation to securing reasonable adjustments to the common parts of let or commonhold premises. Schedule 5 replaces provisions in current legislation which provide exceptions to the discrimination provisions relating to premises in certain circumstances.

1. Adjustments to common parts of premises a. Background

The 2001/02 Survey of English Housing found that 9% of disabled tenants (around 18,000 people) living in unsuitable accommodation had not been able to make alterations to their homes because their landlords had refused consent. More recent Survey of English Housing figures, quoted in the Impact Assessment on the Bill, identify

91 (2006-2007)[43], cl.1 92 Joint Committee on Human Rights, A Bill of Rights for the UK?, 10 August 2008, HL Paper 165 HC 150, 2007-08

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270,000 households with disabled people who consider their accommodation to be unsuitable.

Amendments introduced by the 2005 DDA have made it easier for owners of leasehold flats to carry out necessary adaptations to their homes where their lease agreement contains an absolute prohibition against such work, or where the freeholder’s consent is required and this consent is being withheld. However, because certain common parts of residential premises are not comprised in the lease, i.e. communal areas such as stairways, these areas do not usually constitute part of the dwelling-house that form part of the lease agreement; consequently a leaseholder in this position may not require adaptations to those areas in the absence of the freeholder’s consent.

The problems associated with obtaining a landlord’s consent to carrying out adaptation works were acknowledged in the 1999 report of the Disability Rights Task Force, From Exclusion to Inclusion:

Overcoming Physical Barriers to Premises 46. We felt that it would be unreasonable to expect those disposing of premises to have to make and meet the cost of physical adjustments for disabled people. However, living in suitable housing is fundamental to people's enjoyment of life. We felt that disabled people should not have to rely on the goodwill of those disposing of premises to make reasonable physical adjustments necessary for them to live comfortably. We believe, therefore, that landlords and managing agents etc. should not be allowed to withhold consent unreasonably for a disabled tenant to make physical adaptations to premises.

47. It is important that further work is done to determine what would and would not be reasonable in these circumstances and what rights the owner of the premises has to expect the premises to be returned to the state in which they were let. Requiring full reinstatement of the premises by the tenant on his departure would make this new right meaningless in many cases because of the costs involved. However, there is clearly a fear that adaptations for disabled people will make the premises less attractive for future lessees and purchasers and this fear needs to be addressed.

As the 2005 Act progressed through Parliament the issue of securing adaptations to communal areas was much discussed. During the Report stage in the House of Lords Baroness Hollis explained how the Government intended to take the issue forward:

… However, I am equally persuaded that we cannot just bank our responsibilities, walk away from it, say that it is complicated and hope that somehow something will happen. As a result, since our last discussions in Committee, we are taking it forward. The DRC has already been invited and has agreed to be a member of a review group. The group's chairman has already been appointed. A senior civil servant from the DWP, who is here today listening to this debate, will head that working party to see how to progress this. Referring to the question asked by the noble Lord, Lord Oakeshott, it will involve members from the Office of the Deputy Prime Minister, the Department for Constitutional Affairs, and the Department for Health. I will see whether we should include the Department for Education. Members from the Scottish Executive have already been appointed also.

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The group will investigate the need and evidence for change; for example, the number of disabled people affected by inaccessible common parts, the effect on their lives and the nature of alterations needed. It will identify options for change, assess the regulatory costs and benefits of the options identified, and engage with the tangle of hugely complex legal issues surrounding land law. We expect the chairman to report no later than the end of the year with specific recommendations for resolving those issues. If primary legislation is recommended, that report will include recommendations as to possible legislative vehicles.93

Anne McGuire, then Minister for Disabled People, reported on the outcome of the review group in a written statement on 1 February 2006:

The Review Group on Common Parts was set up, during the passage of the Disability Discrimination Bill, which gained Royal Assent in April 2005, because of concerns expressed by Members of the other place that some disabled people could become confined to their homes if the common parts of the premises could not be adapted to meet their needs.

The Review Group was asked to investigate the need and evidence for change in relation to alterations to the common parts of let residential premises and to make recommendations to the Minister for Disabled People (Anne McGuire) and the Minister for Housing and Planning (Yvette Cooper).

The Review Group has considered a wide range of evidence including: a review of landlord and tenant and housing legislation, information on the experience of disabled people, research concerning the attitudes of tenants, lessees and landlords to adjustments to common parts and a range of surveys and statistical reports.

It has come to the conclusion that while there is evidence of good practice by some landlords, there is also evidence of unmet need for adjustments to common parts to assist disabled people. Therefore, it has concluded that a problem does exist and has made a series of detailed recommendations in its report, entitled "A review of the current position in relation to adjustments to the common parts of let residential premises, and recommendation for change", 23 December 2005. The Government are now considering the detail of the report and its recommendations. The report has been placed in the Library.94

The Review Group made 17 recommendations of which five were non-legislative. The legislative recommendations revolved around the idea that the Government should develop legislation which would ensure that when requested by a lessee to make a disability-related adjustment to the common parts of let residential premises, landlords would be under a duty to make the adjustment, subject to a test of reasonableness.

Chapter 13 of the Consultation document set out proposals to improve access to, and use of, premises for disabled people, including access to common parts of dwellings:

93 HL Deb 3 February 2005 cc442-3 94 HC Deb 1 February 2006 WS17 - the full report of the review group can be accessed online.

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Subject to the views expressed in response to this consultation, we propose that: Where a disabled person finds it impossible or unreasonably difficult to use the common parts of their let residential premises, the landlord should be under a duty to make a disability-related alteration to the common parts, where reasonable, and at the disabled person’s expense (including any reasonable maintenance costs).95

The duty would apply where the disabled person is placed at a substantial disadvantage compared to a non-disabled person. Failure to comply would be treated as discrimination.

This issue was extensively discussed in the Consultation Document and in the Government’s Response. Chapter 11 of the Consultation Response said that over 90 per cent of the 150+ responses which addressed the issue of adaptations to common parts were in favour of the proposal. Respondents in favour covered the whole spectrum from local authorities, disability groups to individuals. The main benefit identified would be to lower the risk of disabled people becoming isolated in their homes.96

Doubts about the proposal tended to centre on the question of cost. Placing responsibility for meeting the cost of adaptations on the disabled person would, it has been suggested, mean that many individuals will not be able to afford the alterations.

Landlord organisations were “broadly in favour” subject to terms such as “reasonable” and “common parts” being clearly defined in a statutory code with associated guidance. Landlord opposition focused on the additional burdens that the duty would impose, including court costs in the event of a dispute and recovering costs where tenancies are short-lived. The British Property Federation said it was opposed to the linked proposal to lower the threshold for making reasonable adjustments to that of “substantial disadvantage.”97

In response the Government reiterated its intention to introduce a new measure to require landlords and managers to make disability related adjustments to common parts of residential premises where it is reasonable to do so and when requested by a disabled occupier. Good practice on alterations and accessible housing will be included in a Code of Practice.98

The Work and Pensions Select Committee’s Report, The Equality Bill: how disability equality fits within a single Equality Act, concluded that the duty on landlords to make reasonable adjustments to premises (not just to common parts) should be anticipatory in nature:

291. In the interests of consistency and in order to make the provisions as effective as possible, the premises duties to make reasonable adjustments should be made anticipatory in nature. Given that the steps to be taken are limited in any event by what is 'reasonable' this should not impose an undue

95 Consultation Document, Paragraph 13.2, p158 96 Cm 7454, paras 11.62-63 97 Ibid para 11.67 98 Ibid para 11.70

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burden upon landlords and would result in more effective removal of barriers for disabled people. Having similar duties in this area to those in goods, facilities and services would make the law easier to apply and for premises providers to understand. In addition we recommend that harassment of disabled people in the housing context be explicitly prohibited.

292. Research shows clearly the difference in awareness and practice between local authorities/housing associations on the one hand and private landlords on the other. We believe that unless the Equality Bill introduces an anticipatory duty in housing, we can expect that as the public sector duty becomes more widely embedded, the difference between social housing providers and private sector providers in this respect is likely to get even wider than was observed in the research.99

2. The Bill: clause 34

As noted above, clause 34 and Schedules 4 and 5 to the Bill replace existing provisions in the 1995 DDA but also introduce a new requirement for disability related alterations to the physical features of the common parts of let residential premises or premises owned on a commonhold basis. Schedule 4 explains how the duty to make reasonable adjustments will apply in relation to common parts. The provisions relate specifically to physical features and set out the process that must be followed by the person responsible for the common parts (who is either a landlord or, in the case of commonhold land, the commonhold association) if a disabled tenant or someone on their behalf requests an adjustment (i.e. it is not an anticipatory duty). This process includes a consultation process with others affected (e.g. other residents) which must be carried out within a reasonable period of the request being made. If the responsible person decides to make an adjustment to avoid disadvantage to a disabled person, a written agreement must be entered into between them setting out their rights and responsibilities.

Schedule 4 will make it unlawful for a controller or responsible person to victimise a disabled tenant because costs have been incurred in making/approving a reasonable adjustment. When the adjustment involves the common parts of dwellings the landlord will be able to charge the tenant for the cost of the alteration. The explanatory notes to the Bill provide the following example:

A landlord is asked by a disabled tenant to install a ramp to give her easier access to the communal entrance door. The landlord must consult all people he thinks would be affected by the ramp and, if he believes that it is reasonable to provide it, he must enter into a written agreement with the disabled person setting out matters such as responsibility for payment for the ramp. The landlord can insist the tenant pays for the cost of making the alteration.100

The Impact Assessment on the Bill (Annex H) estimates that there will be increased demand for Disabled Facilities Grants to carry out adjustments to commons parts resulting in around 8,000 being paid at a cost of up to £27m. It is expected, by reducing the number of disabled people who are “prisoners in their own homes” that annual home

99 HC 158, Third Report of Session 2008-09, 29 April 2009 100 Explanatory Notes para 715

53 RESEARCH PAPER 09/42 care savings of around £15m will accrue to local authorities, while a reduction in the number of people entering residential care could result in savings of up to £25m:

Adjustments to Common Parts - Assumes half (50%) of those with inaccessible common parts will be aware of the legislation (29,000); assumes half of those who request changes to common parts will request Government Funding (around 14,000); and assumes 40% of applications would not proceed so 8,000 grants paid

Home Care Savings - Assumes that of the total number of disabled people making adjustments to their common parts and also receiving Council funded home care (20% of 29,000) half of those will no longer require home care

Residential Care Savings - Assumes a reduction in the number of people entering residential care of between 1 and 5%101

N. Work: Part 5, clauses 36 - 56

1. Harmonisation

Part 5 of the Bill covers work. Most of this re-enacts existing discrimination law in the employment field. In general, employment rights are often limited to those legally defined as ‘employees’ having a direct contractual relationship with an employer that exhibits the legally recognized features of an employment contract such as ‘mutuality of obligations’. There are a variety of work circumstances which the courts have found to fall outside this narrow legal definition. Sometimes this is the case with agency workers or those holding official appointments.

Departing from this basic feature of employment law, discrimination law in the employment field has historically been drafted in different ways that apply more widely to work performed outside recognised employment contracts. Sometimes this has been done by the specific inclusion of certain groups, such as the police, or it is implicitly provided for in the nature of statutory definitions concerning who is covered. The Bill preserves the general approach in existing legislation and case law in a unified and more rational framework; hence the title of Part 5 is ‘work’. Some of the areas where the law has been extended include the following:

Clause 37 generalises the approach taken to harassment in employment contained in the SDA to other protected characteristics with the exception of marriage and civil partnership and pregnancy and maternity.

Clauses 41 and 42 deal with discrimination in partnerships and limited liability partnerships. These largely replicate existing legislation but have the effect of harmonising the provisions in respect of race. At present, protection on the grounds of colour and nationality is slightly different from the grounds of race and ethnic or national origin.

101 Impact Assessment on the Bill Annex H

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Clause 44 replicates the current position in respect of barristers that removes the protection for clerks and clients who are in any event covered by clauses 37 and 38 on the provision of services. Clause 45 similarly provides in respect of advocates.

Many employment rights do not apply to “office-holders” who for example are not regarded as “employees” in most employment protection legislation. Under common law, “office holders” are distinguished from “servants” who are employees engaged under a contact of employment. Their rights and duties are defined by the office they hold rather than a contract. For example, company directors are office holders, but may also be servants under a service agreement with the company at the same time. Case law on the employment rights of clergy has confirmed that individuals could be office holders and employees at the same time without any presumption against employment status.102

Clauses 46 and 47 deal with office-holders and are intended to replicate provisions in existing legislation. The Bill creates a distinction between “personal offices” and “public offices”. In the case of public officers, discrimination, harassment and victimisation protection are extended to “those appointed on the recommendation or approval of law making bodies such as the Scottish Parliament and Welsh Assembly”.103

Clause 52 replicates existing law; vocational training and employment agencies are covered under a single provision as “employment service providers”.

Clause 54 includes a minor extension in respect of trade organisations to cover arrangements determining who gets membership.

The protections for local authority members contained in the DDA are extended to all protected characteristics in clause 55.

2. Genuine occupational requirements or qualifications

Existing discrimination law contains a number of exceptions where a potentially discriminatory requirement is permitted, often subject to conditions that it be genuine and proportionate. The provisions dealing with occupational requirements in current legislation are as follows:

 Sections 7, 7A and 7B of the SDA  Sections 4A and 5 of the RRA  Regulation 7(2) of the Employment Equality (Sexual Orientation) Regulations 2003  Regulation 7(2) of the Employment Equality (Religion or Belief) Regulations 2003  Regulation 8 of the Employment Equality (Age) Regulations 2006

In the Consultation Response the Government indicated that it would devise a new simplified framework for exceptions in the employment field:

102 Percy v Church of Scotland [2006] IRLR 195; and New Testament of God v Stewart [2006] UKEAT 293/06 103 Explanatory notes, paragraph 175

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18. We will devise a model for exceptions which includes a genuine occupational requirement for all grounds of discrimination at work except for disability. We do not intend to introduce a genuine service requirement for discrimination outside work. We will consider further the extent to which we need to retain specific exceptions in particular cases.104

In the Bill these are contained in part 1 of schedule 9. Most of this replicates existing law. The first paragraph of the schedule sets out the general framework for ‘occupational requirements’. The explanatory notes summarise the differences between the framework proposed in the Bill and existing legislation:

742. This paragraph replicates the effect of exceptions for occupational requirements in current discrimination legislation, and creates new exceptions in relation to disability and to replace the existing occupational qualifications in relation to sex, gender reassignment, colour and nationality. It differs from the existing exceptions for occupational requirements in that it makes clear that the requirement must pursue a legitimate aim and that the burden of showing the exception applies rests on those seeking to rely on it.

Other changes include a narrower scope for the existing exception relating to “combat effectiveness” applicable to the armed forces in paragraph 4 of schedule 9, part 1.

3. Mandatory retirement

The exception in age discrimination employment legislation which allows for mandatory retirement after a certain age has been controversial and is still subject to legal challenge in the courts involving a recent ruling by the ECJ. This exception is preserved in schedule 9, part 2, paragraph 8. The detailed background is given in a section below.

O. Occupational pension schemes: clauses 57 and 58

Chapter two of part five of the Bill would require an occupational pension scheme to have a non-discrimination rule read into it. This would prohibit a “responsible person” from discriminating, harassing or victimising a member, or a person who could become a member, of a pension scheme. The provisions of the scheme would have effect subject to the non-discrimination rule, so where there was a conflict between the two the non- discrimination rule would prevail.105 The rule would not apply to pension rights built up or benefits payable for periods of service before the commencement of the clause.106

The explanatory notes say the Bill would require schemes to have non-discrimination rules in respect of gender reassignment, marriage and civil partnership and sex:

104 GEO, The Equality Bill – Government Response to the Consultation, CM 7454, July 2008, page 7 105 See, for example, Disability Rights Commission, Disability Discrimination Act 1995. Code of Practice. Employment and Occupation, 2004, para 10.8 106 The remedies available where there has been a breach of the non-discrimination rule are in chapter three of part nine of the Bill. See, in particular, Clause 120 Remedies: occupational pension schemes.

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202. Occupational pension schemes are already required to have non- discrimination rules in respect of age, disability, religion or belief and sexual orientation. When this provision comes into force, they will also have to have non- discrimination rules in respect of gender reassignment, marriage and civil partnership and sex.107

There are existing requirements in these areas. For instance, the purpose of the Gender Recognition Act 2004 was to provide transsexual people with legal recognition in their acquired gender, following the issue of a full gender recognition certificate by the Gender Recognition Panel.108 An effect of the Civil Partnership Act 2004 is that where a survivor’s pension is payable to a surviving spouse under the rules of the scheme it must also be paid to a surviving civil partner, although the degree of retrospection may differ.109 On dissolution of a civil partnership, a court has jurisdiction to order pension sharing, as on divorce.110

A non-discrimination rule would not apply where an equality rule operates, or would do so but for the specified exceptions.111 Provisions in chapter three of part five of the Bill would require every occupational pension scheme to have a sex equality rule read into it, largely replicating equivalent provisions in the Pensions Act 1995.112 The rule requires that men and women are treated equally to comparable members of the opposite sex in relation to both the terms on which they are permitted to join the scheme, and to the terms on which they are treated once they have become scheme members.113

It is not clear from the explanatory notes what, in practice, the requirement to have non- discrimination rules would add to existing requirements. They do not give examples of changes occupational pension schemes would be expected to make.114 On the other hand, neither is it clearly stated that clause 57 (non-discrimination rule) simply replicates existing provisions.115 The Impact Assessment does not include estimates of expected additional costs to pension schemes.116

107 Equality Bill 2008-09, Explanatory Notes, para 202 108 Explanatory Notes to Gender Recognition Act 2004; For an explanation of the implications for pension and benefit entitlement, see Gender Recognition Act 2004, Section 13 and Schedule five and Gender Recognition Panel leaflet, How getting a full Gender Recognition Certificate may affect a transsexual man’s or transsexual woman’s National Insurance, benefits and pensions, Updated April 2007 109 IDS Pension Service, Pension Scheme Design, May 2006, para 6.22; Civil Partnership Act 2004, section 255; Civil Partnership (Contracted-Out Occupational and Appropriate Personal Pension Scheme) (Surviving Civil Partners) Order 2005 (SI 2005 No. 2050); 12th Delegated Legislation Committee, 14 July 2005, c4. 110 Civil Partnership Act 2004, Schedule five, Part four 111 Equality Bill 2008-09, Explanatory Notes, para 201 112 Ibid, para 220 113 Ibid, para 216-220 114 The example at paragraph 203 relates to disability, in respect of which there is already a requirement to have a non-discrimination rule 115 See for example, Explanatory Notes, para 202 116 Government Equalities Office, Equality Bill – Impact Assessment, April 2009

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P. Equality of terms and equal pay: clauses 59 - 75

1. Dual system of sex discrimination law

The provisions contained in Part 5, chapter 3 largely replicate provisions currently contained in the Equal Pay Act 1970 (EqPA). The Bill therefore retains what is often referred to as the “dual system” of sex discrimination law. The Sex Discrimination Act 1975 (SDA) for most purposes does not apply to matters such as equal pay and other terms of employment. Instead, these are covered separately by the EqPA. This works by reading an equality clause into the contract of employment. In the course of consultation there have been various calls for the dual system to be abandoned. For example, the Fawcett society raised this issue in its response to the consultation on the Green Paper:

Sex discrimination legislation dates from the 1970s and despite modest reforms over the last 30 years, equality law experts report that it is now woefully out of date, and out of step with European Law. The present system follows two distinct legislative models: the Sex Discrimination Act 1975 (SDA) which prohibits direct and indirect discrimination, victimisation and harassment on the grounds of sex, and the Equal Pay Act 1970 (EqPA) which regulates inequalities between the contractual terms and conditions (including pay) of men and women doing equal work in the same employment.

Our review finds that this ‘dual’ system of sex discrimination legislation is unnecessarily complicated and confusing. For a start, pay discrimination is treated differently (under the EqPA) to other cases of sex discrimination (covered by the SDA). Plus, there are many discrepancies in the protection afforded to women under these statutory regimes. For instance in relation to the use of comparators, time limits for bringing claims and the remedies available to claimants, as well as discrepancies with other sources of employment protection.117

The consultation response addressed this issue as follows:

7.58 Having two approaches in the two existing Acts covering contractual terms and sex discrimination more generally arguably adds a level of complexity for those trying to understand the law. This is because different legal concepts and models are used; and there are differences in the way the defences operate; differences in the range of remedies; and different time limits for bringing claims. However, we remain of the view that it is better to retain the current approach to equal pay in principle. This is not least because the implied contractual equality provision provides a valuable guarantee to women in the workforce of their right to be employed on the same terms as men. Incorporating this model in the Bill will provide a valuable opportunity for us to clarify the law where possible, while retaining the connections with current case law.118

117 Fawcett Society, Gender Equality in the 21st century: modernising the legislation, April 2006: 118 GEO, The Equality Bill – Government Response to the Consultation, CM 7454, July 2008, page 107

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2. Comparators in equal pay claims: clause 74

A common issue raised in connection with the differences between EqPA and SDA relates to the use of comparators; the basic concept in discrimination law where a court or tribunal must decide whether A has treated B less favourably than C (C being the comparator). This difference is retained in the Bill. Case law has established that in discrimination cases this need not be an actual person but could be a ‘hypothetical comparator’. However, under the EqPA hypothetical comparators are not allowed. The comparison must be made to an actual person in the same employment since the comparison is required by virtue of an equality clause which the legislation imports into contracts of employment. Case law has clarified this to include different workplaces, operations or departments so long as they share a common source of employment. This means that the comparator must either work at the same establishment as the applicant or at one where “common terms and conditions apply”. In either case, the applicant and the comparator must be employed by the same employer, or by associate employers. In the Consultation Response, the Government indicated that it would not introduce hypothetical comparators into equal pay claims.119 This position is preserved and informs the wording of the Bill on equal terms and pay in Part 5, chapter 3.120 Clause 74 codifies existing legislation and case law on who is to be regarded as a colleague for the purposes of comparisons.

During the Consultation the Government was pressed to change this position so that hypothetical comparators could be used in equal pay claims. It is generally argued that this requirement for actual comparators in litigation gives rise to unnecessary complexity involving highly technical legal submissions and the evaluation of conflicting expert witness testimony. When these cases are appealed they can take years to resolve. Another criticism relates to how this operates in a labour market with occupational segregation on gender lines. Work may also be contracted out and pay structures decentralised leaving pay inequalities insulated from legal challenge.

The position can also generate anomalies. For example, the payment of bonuses preferentially in jobs where men predominate could be indirectly discriminatory against women who predominate in other comparable jobs. If the bonus payments were contractual then an actual comparator would be required since the claim would fall under EqPA. However, if the bonus payments were discretionary then a hypothetical comparator could be used since the claim would fall under SDA. By further contrast, a person claiming indirect race discrimination in similar circumstances would not face these problems.

A related concern is sometimes voiced about part time work, a sector where women predominate. Critics often point to the limitations of actual comparator requirements in the context of a segregated workforce where women are concentrated not only in part time work but also in different jobs from their male counterparts who receive higher pay.

119 GEO, The Equality Bill – Government Response to the Consultation, CM 7454, July 2008, page 95 120 See also clause 65

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A further concern which was voiced both by the Equal Opportunities Commission and the Fawcett Society relates to UK implementation of the European Equal Treatment Amendment Directive (ETAD). The Fawcett Society outlined this as follows:

Article 2(2) of ETAD sets out a definition of discrimination which does not require the use of an actual comparator (for either direct or indirect discrimination), and article 3(1)(c) applies this principle of equal treatment to pay making it clear that no actual comparator is required. Yet UK legislation, in the form of the EqPA, requires that claimants bringing equal pay claims must prove their claim by reference to an actual comparator.121

On the 12 March 2007, the Equal Opportunities Commission succeeded in a judicial review of the Government's implementation of ETAD in relation to pregnancy and harassment.122 The judgement did not relate to the above concerns raised by the Fawcett Society as regards the use of comparators in equal pay claims.

The consultation response summarised the reasons why the use of hypothetical comparators would not be extended to equal pay claims in the Bill:

7.66 Respondents seeking the use of hypothetical comparators in Equal Pay cases cite a range of situations in which they consider they would be useful, mostly relating to claims about work of equal value. Some of these involve a gap in time between the work of the claimant and the existence of a comparator (i.e. there used to be someone doing an equivalent job but there is not now); in others the suggestion is that where work is accepted not to be equal, but the pay differential is bigger than the difference in work can justify, the law should be able to correct the situation; another is the case where there is strong evidence of discrimination, but no comparator at all (i.e. the employer says to a woman in his employment “you would have been paid more if you were a man”). Each of these situations presents particular challenges for the law.

7.67 We are concerned that there is a risk that allowing hypothetical comparators in equal pay claims could therefore result in perverse results: for example, at the extreme, a male gardener could potentially then claim the same pay as a caretaker (also male) on the grounds that the work was of equal value, by citing a hypothetical female caretaker as an example. In short equal pay law could be turned into a “fair pay for equal work law”, potentially bringing about a large number of claims which would have nothing to do with gender inequality, and possibly even producing results which tend to increase, rather than decrease, the gender pay gap.

7.68 Nor does it seem that the equal pay framework and remedies are appropriate for dealing with cases where work is acknowledged to be different and of different value. We believe that by adjusting the way the two elements of the law relate, as described above, we can ensure that gender discrimination in

121 Fawcett Society, Gender Equality in the 21st century: modernising the legislation, April 2006: 122 EOC Press Release, EOC Succeeds in Judicial Review of Equal Treatment Regulations, 12 March 2007 http://collections.europarchive.org/tna/20070413120000/http://www.eoc.org.uk/Defaultaab1.html

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pay matters can be addressed without running the risk of allowing claims that have nothing to do with gender discrimination.123

3. Material factor defence: clause 64

Clause 64 largely incorporates measures in EqPA and the Pensions Act 1995 in a single clause covering the ‘material factor defence’. The EHRC explain the defence in its current form as follows:

Where there is equal work, s.1(3) Equal Pay Act (EqPA) provides that: 'an equality clause shall not operate in relation to a variation between the woman's contract and the man's contract if the employer proves that the variation is genuinely due to a material factor which is not the difference of sex'. It is known as the material factor defence.

In practice, once a comparison establishes that the claimant is employed on equal work to her comparator, a presumption arises that the equality clause will operate in her favour unless the employer can show that the difference in pay is genuinely explained by something that has nothing to do with sex. If the employer can show a proper reason for the disparity in pay, the claim will fail.124

There are two important areas relevant to the changes that are made by the Bill in this clause. Both are quite complex and relate to both legal case law development and broader impacts on pay negotiations. The first concerns how the principles of indirect discrimination have operated in this area of equal pay law. The second concerns current problems in the relationship between the legal framework and attempts to advance wage equality through collective bargaining, particularly in the public sector. a. Indirect discrimination

The consultation response signalled that there may be clarifications but it was not stated precisely how these would work:

7.71 We have decided, that ... we will seek to clarify the law [on] … how genuine material factors should be dealt with by the courts. Beyond this we do not consider that explicit codification would be helpful at this stage, although we note that there are significant cases currently before the higher courts.125

Clause 64 makes changes to the form of existing legislation in incorporating the material factor defence into the provisions replacing EqPA. The EqPA does not clearly distinguish direct from indirect discrimination, but these concepts appear in the case law interpreting the provisions of the Act. The SDA (and other discrimination legislation) sets out how indirect discrimination operates, invariably within separate sections or regulations. A substantial body of case law both domestic and EU level has clarified how the material factor defence works in practice. The defence does not operate where the difference in

123 GEO, The Equality Bill – Government Response to the Consultation, CM 7454, July 2008, pages 109- 110 124 EHRC, The material factor defence 125 GEO, The Equality Bill – Government Response to the Consultation, CM 7454, July 2008, page

61 RESEARCH PAPER 09/42 pay is based on what the court or tribunal perceives to be direct discrimination. Where the pay difference is based on indirect discrimination, it is open to the employer to show that it is objectively justified. In cases where there is no evidence of either direct or indirect discrimination then the employer faces a lighter burden of showing that the difference simply meets a genuine objective.

Clause 64 sets out how indirect discrimination applies to equal pay and terms. The explanatory notes refer to EC case law. Both domestic and European case law have held for some time that an indirectly discriminatory pay policy contravenes Article 141 of the Treaty, a leading case being Bilka Kaufhaus v Weber von Hartz.126 An article by Sandra Fredman in the Industrial Law Journal covers this issue in detail.127 She explains that in Bilka it was held that the employer has a defence to a claim for indirect discrimination in this context if “the means chosen correspond to a real need on the part of the undertaking, are appropriate with a view to achieving that objective and are necessary to that end”. Fredman examines how this has led to difficulties:

Domestic courts have rightly held that this requires the EqPA to be interpreted to conform with EU law. But the attempt to transplant an indirect discrimination concept into the unyielding ground of the EqPA has lead to awkward and sometimes retrogressive results. According to the scheme of the Act, once it has been shown that a woman is doing equal work to a male comparator, but being paid less, the variation is presumed to be due to the difference of sex. The burden then passes to the employer to prove that the variation is ‘genuinely due to a material factor which is not the difference of sex’ under s1(3). If the difference is expressly sex based, then clearly this defence cannot succeed. But there is no express provision for a situation in which the explanation is not expressly sex based, while in practice having the effect of putting women at a particular disadvantage. The courts have responded by feeding indirect discrimination into the s.1(3) defence: an indirectly discriminatory explanation will not count as a material factor which is not the difference of sex. The trouble arises because indirect discrimination, as we have seen, has its own defence, namely, that it is appropriate and necessary to achieve and needed objective. Thus in showing that the material factor is itself indirectly discriminatory, two extra steps are grafted onto the equal pay process: proof that the practice disproportionately disadvantages women and secondly that it is not appropriate and necessary.

As a result of this, the case law has become complex and open to a number of criticisms some of which Fredman outlines. In particular, she points out how the legislative terminology in section 1(3) EqPA (the material factor defence) may become conflated with the justification defence in indirect discrimination arising from Bilka. The Bill will accordingly clarify this by providing a single legislative formula for the defence which will apply only in circumstances of indirect discrimination in equal pay claims.

The clause also removes the reference in EqPA to a difference in pay being “genuinely” due to a material factor. The explanatory notes state that “the adverb added nothing to

126 For example: Bilka Kaufhaus v Weber von Hartz [1986] IRLR 317 ECJ para 31; and Jenkins v Kingsgate (Clothing Productions) Limited [1981] ICR 592 127 Sandra Fedman, ‘Reforming Equal Pay Laws’, Industrial Law Journal, Vol 37, No. 3, September 2008, pp 193-218

62 RESEARCH PAPER 09/42 the meaning of the requirement, which is that the employer’s obligation is to show that the reason for the difference is genuine and not a sham.” b. Pay negotiation

Besides litigation, equality in pay may be advanced through collective bargaining. This has the obvious advantage of affecting a larger number of individuals than simply those who take equal pay claims since there is the possibility of addressing an entire pay structure. Significant developments in this area include national level collective agreements such as Agenda for Change in the NHS and the Single Status Agreement covering local authorities.

On first impressions the provision in clause 64(3) which allows the objective of reducing pay inequalities to be used as a defence in equal pay claims might seem tautological in the absence of the relevant context. Although not indicated in the explanatory notes, this context is likely to be the problems currently facing public sector pay negotiations, which have sought to address long-standing pay inequalities between men and women. Background is given in a separate section below on equal pay.

Clause 64(3) is entirely new. It provides that in establishing a material factor defence “the long-term objective of reducing inequality between men's and women's terms of work is always to be regarded as a legitimate aim”. This addition may be controversial since it touches on matters that have generated an exceptional level of litigation on equal pay in recent years, in particular affecting local authorities. The relevant example given in the explanatory notes concerns pay protection which is one of the issues that has arisen:

In imposing a new pay structure which seeks to remove pay inequalities between men and women employees, and to accommodate the interests of all the various groups, an employer includes measures which seek to protect the pay of the higher paid group for a short period of time. The intention to remove pay inequalities is a legitimate aim, and the question will be whether the imposition of the particular temporary pay protection arrangements is a proportionate means of achieving it.

The Bill does not specify how long any transitional period of pay protection should last. It would be for a judge to decide what was “proportionate” in any given case. Fredman suggests a maximum of three years. The changes proposed in clause 64(3) clearly have a bearing on recent court judgements concerning pay protection (Bainbridge/Surtees) outlined by the Local Government Employers (LGE) organisation as follows:128

In July 2008 the Court of Appeal gave its long awaited decision in the equal pay cases of Redcar & Cleveland Borough Council v Bainbridge and Surtees v Middlesbrough Borough Council. The cases concern the question of whether pay protection arrangements which favour male employees and on the face of it therefore indirectly discriminate against female employees, can be justified. On the basis of the individual facts of those cases, the Court of Appeal held that the pay protection arrangements could not be justified. However, importantly the

128 Redcar & Cleveland Borough Council v Bainbridge; Surtees v Middlesbrough Borough Council, July 2008, [2008] EWCA Civ 885

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Court of Appeal made it clear that in some circumstances such pay protection arrangements are still capable of being justified.

The Court of Appeal indicated that to determine the question of whether the use of a pay protection scheme which favours male employees can be justified will depend on factors such as the employer’s knowledge of whether such scheme would indirectly discriminate and its intentions when putting the scheme in place. At the time that Redcar entered into its pay protection arrangements it had already settled a number of equal claims by women in the affected positions. Therefore, it must have been clear to Redcar that the pay protection arrangements were in effect allowing the discrimination to continue. Although Middlesbrough had not settled any equal pay claims brought by the woman affected by its pay protection arrangements as it believed it had a defence to such claims, there was still the potential for those claims to succeed.

However, the Court of Appeal made it clear that it will be up to the tribunal in each case to determine the question of whether the use of a pay protection scheme is justified with reference to the facts in each case and employers will face an uphill battle in establishing that the use of the pay protection scheme which favoured men was justified.

Perhaps the decision and its implication for local authorities can best be summed up by the following comment made by Mummery LJ in the judgment:

“We accept that a large public employer might be able to demonstrate that the constraints on its finances were so pressing that it could do no other than it did and it was justified that in putting the need to cushion the men’s pay protection ahead of the need to bring women up to parity with the men. But we do not accept that that result should be a foregone conclusion. The employer must be put to proof that what he had done was objectively justified in the individual case.” 129

The EHRC intervened in this case arguing in favour of “transitional” pay protection arrangements on the grounds that uncertainty about the lawfulness of such arrangements was hindering implementation of equal pay collective agreements, in particular the Single Status Agreement.130 It therefore appears that in clause 64(3), one of the intentions may be to strike a balance between addressing the historical accumulation of equal pay claims in the public sector with collective pay negotiations that seek to progress wage inequality through reformed pay structures and regrading exercises. Comment on the pay protection case referred to above (Bainbridge/Surtees) which appeared in the Equal Opportunities Review summarised the position as follows:

The practical impact of this case, especially when taken with the Court of Appeal's judgement in Allen v GMB (EOR 179) is to make it extremely difficult for negotiations over implementing equal pay settlements to continue.

Allen held that trade unions could be legally liable for indirectly discriminating against female members on grounds of sex as a result of the particular settlement

129 LGE, Equal pay and pay protection: the Bainbridge decision 130 EOR, 184, January 2009, page 19

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they negotiate. Bainbridge/Surtees holds that employers may have a defence for negotiating pay protection arrangements which continue indirect discrimination against women for a transitional period. Then again, they may not have a defence.131

Extending the material factor defence inevitably means reducing legal protection against discrimination in pay. Over recent years, thousands of women have lodged equal pay claims, a portion of which have related to pay protection.132 There have been calls for these outstanding liabilities, and others that may yet emerge, to be met by central government funding. The Government has resisted this, preferring to issue capitalisation directions allowing local authorities to borrow in order to fund the liabilities. Sandra Fredman, in the article quoted above, is critical of this approach. Referring to the collective agreements, she says:

These initiatives have had some serious drawbacks. Chief among them has been the government's approach to funding. Its refusal to provide adequate funding for the implementation of the local government Single Status Agreement contrasts with the resources allowed to meet the costs of implementing ‘Agenda for Change’ in the NHS. The result is that by the end of 2007, only 42% of local authorities had implemented new pay and grading systems. Faced with the funding squeeze, local authority employers have threatened job cuts and pay reductions as the price of equal value settlements. In St Helens, the local authorities sent letters to its workforce as a whole and to female employees pursuing equal pay claims, threatening redundancies and cuts in services unless the women settled their claims. It took a case to the House of Lords to establish that this amounted to unlawful victimisation.133 c. Trade unions

The recent Court of Appeal judgement in Allen v GMB (referred to above in the quotation from the Equal Opportunities Review) upheld claims made by women against their trade union, GMB.134 It is important to note that this case was taken under the SDA. Accordingly, the changes made to the material factor defence would not apply in these circumstances. However, it is relevant in terms of the underlying problems and related measures signalled in the Consultation response. The facts of the case recorded by the Employment Tribunal (ET) were summarised in the Court of Appeal judgement as follows:

10. The conclusion of the ET was that, by agreeing to a low back pay settlement in order to release more money for pay protection and the future pay line, the Union had engaged in a potentially discriminatory practice. The disadvantaged group were predominantly women. The Union had failed to justify the discriminatory practice. This was because of certain aspects of the Union’s approach of which the ET was critical. There were four principal matters of concern. First, the Union had failed to protect the interests of the claimants by

131 EOR, 180, September 2008, page 34 132 See section below on employment tribunal statistics 133 Sandra Fedman, ‘Reforming Equal Pay Laws’, Industrial Law Journal, Vol 37, No. 3, September 2008, p209. An article footnote refers to St Helen's Borough Council v Derbyshire [2007] ICR 90 (CA) 134 Allen v GMB [2008] EWCA Civ 810

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not pursuing proceedings at an early stage so as to establish an early date for the calculation of back pay. Even if the Union had preferred not to litigate, it should have protected the claimants in this way. Secondly, the Union had deliberately omitted to give advice about back pay and had refused to support litigation in order not to antagonise the Council or to delay or impede the progression to single status. Thirdly, the Union had “rushed headlong” into an ill-considered back pay deal. It had accepted too readily the Council’s plea of poverty. Finally, and, it seems, crucially, the Union had failed to give the claimants a fully informed choice about the options available to them. They had not been informed that what they were being offered was substantially less than they might receive following successful litigation and there was no assessment of the litigation risk which the ET considered to be relatively small, at least for some of the claimants. The ET considered that, if the Union was going to require the claimants to make some sacrifice in the interests of other members, then that should have been made plain to them. There had been not only a failure to provide full information but also positive manipulation of “relatively unsophisticated claimants” by suggesting that the offer from the Council was acceptable and placing them in a position where they were in fear that, if they pressed for more, it might lead to job losses and to their being seen as traitors by their colleagues. The ET considered this to be “the worst aspect of the case”.

In light of these issues there have been calls for new measures in the Bill to address pay bargaining. For example, some have proposed a specific equality duty on both employers and trade union negotiation units. This measure or others that apply equality requirements to collective agreements might be enforceable by individuals or some other body such as the Central Arbitration Committee which performed this kind of role when the EqPA was first brought into force.

The Consultation response outlined specific proposals regarding trade unions:

15. We will support trade union equality representatives in their roles by building on current initiatives including the 15 pilot projects we are sponsoring through the Union Modernisation Fund. We will review and report on what the pilot projects have delivered by next year, with a view to next steps.135

The Union Modernisation Fund was established by the Employment Relations Act 2004. The BERR website describes it as follows:

The Union Modernisation Fund (UMF) is a Government grant scheme established by the Department of Trade and Industry (DTI), now the Department for Business, Enterprise and Regulatory Reform (BERR). It provides financial assistance to independent trade unions and their federations in support of innovative projects, which contribute to, or explore the potential for, a transformational change in the organisational effectiveness or efficiency of a union - in the light of the changing needs, aspirations and behaviour of workers and employers in the changing UK labour market.

135 GEO, The Equality Bill – Government Response to the Consultation, CM 7454, July 2008, page 6

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By funding innovative modernisation projects, the UMF seeks to enhance the ability of trade unions to make a full and effective contribution to constructive employment relations and to the economy as a whole. 136 d. Conservative Party proposals

The Conservative Party has proposed changes to the material factor defence which are embodied in the Equal Pay and Flexible Working Bill [HL]. This is a Lords Private Member’s Bill sponsored by Baroness Morris. The relevant parts of the policy document explain the proposals which the clauses would enact:137

2. Tightening the rules: a ‘reasonableness’ test for the material factor defence

As was noted above, Section 1(3) of the EPA provides for the ‘material factor’ defence (for cases where “the variation is genuinely due to a material factor which is not the difference of sex”). Tribunals are not presently required to agree that such a material factor is reasonable, only that is was the cause of the pay difference and that it was not discriminatory. The EPA should be amended to introduce a ‘reasonableness test’ for the material factor defence, which would make it easier to identify cases where pay discrimination is indirect, and not just direct.

The proposals, contained in clause 1(2) of Baroness Morris’ Bill were criticised by Lord Lester at Second Reading on 23 January 2009 in the following terms:

Clause 1(2) is fundamentally flawed for at least three main reasons. If the Minister disagrees with me, I hope that she will explain why. First, it would in some circumstances place an increased burden on employers, because they would be required to satisfy the test of reasonableness even in relation to factors that are not discriminatory. Ironically, that would add to the employer's burden quite unnecessarily. Secondly, it suggests that factors that are directly discriminatory would become open to justification as being reasonable, yet it is quite clear that under EC directives and as a fundamental tenet of our domestic discrimination law, you cannot justify direct discrimination. Thirdly, and perhaps most importantly, it would substitute a weaker test of “reasonableness” for that of objective justification in cases of indirect discrimination. As the noble Baroness, Lady Prosser, and others have said, that would clearly be incompatible with Article 141 of the treaty and the equal pay directive. In other words, Clause 1(2) would not simplify and it would undermine the effective enjoyment of equal pay for equal work.138

Q. Sex discrimination in relation to contractual pay: clause 66

Clause 66 introduces a new provision which operates across the gap between the two legislative frameworks in the dual system of sex discrimination noted above. It envisages a situation where discriminatory actions may take place in relation to contractual pay but, nevertheless, fall outside the scope of the equality clause that is read into contracts of

136 BERR, Union Modernisation Fund 137 Conservative Women’s Policy Group, Women in the World Today, 2008, page 11 138 HL Deb 23 Jan 2009 c1893

67 RESEARCH PAPER 09/42 employment by part 5, chapter 3 of the Bill. Given the occupationally-segregated nature of the labour market along gender lines there may be many instances where an actual comparator does not exist. In those circumstances an equal pay claim will not be possible. However, direct discriminatory decisions in relation to contractual pay might still arise. The clause provides the possibility of a claim under clause 13 for direct sex discrimination. The explanatory notes give the example of an employer telling a female employee that they would pay them more if they were a man. The example is probably intended to be illustrative, since such overt discrimination is likely to be rare. There may be legal speculation in due course about how the provision would work in practice. This measure was not detailed in the Consultation response, although it was partially signalled in the following passage forming part of the reason why the dual system would be retained:

7.59 In dealing with equal pay in the Equality Bill, we propose to focus on the inter-relationship between the provisions of the two current Acts and to ensure that together the provisions of the two Acts create a scheme of legislation with neither gap nor overlap, which maintains continuity with existing case law.139

R. Discussions with colleagues: clause 72

In Consultation, the Government signalled that it would “ban secrecy clauses which prevent people discussing their own pay”. Clause 72 contains a new provision, applying to all protected characteristics, which is intended to embody these intentions. The submissions and decisions surrounding this issue were summarised in the consultation response as follows:

4.20 We did not specifically consult on this issue but a number of respondents made proposals in response to the question asking for suggestions about improvements to equal pay legislation. In particular, the Equal Opportunities Commission cited research carried out for it in 2004 which found that 22 per cent of employers did not allow employees to share information about their pay with their colleagues. It also found that women on lower wages were more likely to be unaware of the pay of their peers than higher earners; and that women were also more likely to be unaware of the pay of their colleagues than men were. In some cases, the research found that non-disclosure conditions were written into the employee’s employment contract.

Assessment

4.21 The Equality Bill will outlaw pay secrecy clauses, making it unlawful to stop employees discussing their pay. This does not mean that people will be compelled to disclose their pay details. But in situations where colleagues work closely together, on similar work, but are paid different rates or have different packages, it is right that they should be able to compare if they want.140

An article in Personnel Today asked whether this will have a significant impact in practice:

139 GEO, The Equality Bill – Government Response to the Consultation, CM 7454, July 2008, page 107 140 GEO, The Equality Bill – Government Response to the Consultation, CM 7454, July 2008, page 54

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The vast majority of employees are not subject to gagging clauses in any event, and even where they are these are usually contained in non-contractual documents, making it difficult for the employer to take any real action in relation to any breach of the clause.

In many ways, it is simply British culture that leads to secrecy regarding pay, rather than because employers impose gagging clauses on their employees – most people simply do not wish to share information about private matters such as salary with colleagues.

There are already measures in place to enable employees to seek relevant information if they suspect they may not be being paid the same as their colleagues for the same or similar work. For example, employees can already submit equal pay questionnaires to their employers, obliging the employer to provide information relating to pay. If employers refuse to answer, or are evasive, a tribunal may make an adverse inference. If employees feel discriminated against, they can bring claims either under the Equal Pay Act or under other discrimination legislation.

Overall, the mere prohibition on gagging clauses will not result in significant changes in practice, and it is likely that employees will remain reluctant to discuss pay with colleagues.

Individual pay cannot be made public without consent as this would be contrary to the duties of confidentiality and data protection. However, banning gagging clauses will at least publicise the idea of transparency and encourage employees to think about the issues.141

Whilst the measures have been described as a prohibition on “gagging clauses”, Clause 72 does not entirely fit this description since it does not make all clauses in employment contracts restricting the disclosure of pay information under the contract void and unenforceable (a common provision applying to contractual clauses that legislation seeks to prohibit). Instead, such clauses will be unenforceable to the extent that the employee is involved in a “relevant pay discussion” defined as a combination of a discussion about pay and whether this relates to a protected characteristic. The clause also creates a remedy for victimisation subject to the “relevant pay discussion” requirements for this remedy to be available.

S. Transparency: clause 73

1. Public sector

Transparency is an important issue in all areas of discrimination law and equal pay. In the response to the Consultation the Government indicated its general approach to this issue in terms of public policy and public bodies:

141 Personnel Today, Thomas Ince and Kate French, Weekly dilemma: Equality Bill - doing away with gagging clauses, 8 July 2008

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4. We cannot tackle inequality if it is hidden. Transparency is essential to tackling discrimination. We want public bodies to comply with the Equality Duty in their role as employers by reporting on important inequalities:

- gender pay - ethnic minority employment; and - disability employment.142

2. Private sector

Equalities lobbies naturally raise the question of the private sector and what measures will be taken to ensure greater transparency there. Accordingly, there have been ongoing calls for some form of mandatory equal pay evaluation to be undertaken by employers in the private sector. These might take the form of equal pay audits or reviews. Background to this issue is given in the section below.

The Government's approach has historically been voluntaristic. Initially, the Equal Opportunities Commission (EOC) was given the task of encouraging employers to undertake equal pay reviews to highlight inequalities and hopefully address them without the need for enforcement or litigation. The EOC was also asked to monitor progress under this voluntary policy, which it did for a period of time. The Employment Act 2002 introduced an equal pay questionnaire with the intention of making it easier to tackle pay discrimination in the workplace.143 Nevertheless, the pressure has mounted for a more mandatory approach given a widespread perception that the voluntary policy is not working in light of the ongoing gender pay gap. The Equal Pay Task Force set up by the EOC published its report, Just Pay, on 27 February 2001.144 This found that:

... there will be little or no speedy progress in closing the pay gap unless employers take the essential first step of examining whether they have gender pay inequalities in their workplaces. The overwhelming evidence to date is that they will not do so voluntarily. Given this finding, we consider we have no alternative but to make a strong recommendation that employers be required to conduct equal pay reviews.

Policy development on this aspect of the Bill had not concluded at the time the Government response to the Consultation was published, and appears to have been ongoing. The Government signalled in the consultation response that it was not entirely persuaded on the case for mandatory pay audits, but it reserved its position:

4.32 We believe that, in tackling the gender pay gap, the key issue is to determine what works. As noted above, the Civil Service has been conducting equal pay job evaluation audits for some years and some private sector companies have voluntarily carried them out. We want to examine in more detail the impact that equal pay job evaluation audits have.145

142 GEO, The Equality Bill – Government Response to the Consultation, CM 7454, July 2008, pages 4-5 143 HC Deb 6 October 2003 c995W 144 Available on the Equal Pay Task Force website, http://tinyurl.com/22rcgr (Internet Archive, retrieved 23 August 2007) 145 GEO, The Equality Bill – Government Response to the Consultation, CM 7454, July 2008, page 56

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Clause 73 of the Bill opens the way to a more mandatory approach that may be taken at some point in the future. It gives ministers a power to make regulations requiring employers with 250 or more employees to publish information, no more frequently than once year, on the gender pay gap within their organisations. There is provision for criminal sanctions to apply in cases of non-compliance. The explanatory notes state that the Government does not intend to use this power before 2013:

262. This is a new provision. The Government wants large private sector employers in Great Britain to publish information on what they pay their male and female employees, so that their gender pay gap (the size of the difference between men and women’s pay expressed as a percentage) is in the public domain.

263. The Government’s aim is for employers regularly to publish such information on a voluntary basis. To give voluntary arrangements time to work, the Government does not intend to make regulations under this power before April 2013. The power would then be used only if sufficient progress on reporting had not been made by that time.

In the meantime, EHRC has been asked to monitor progress on equal pay transparency and look at the specific ways in which a mandatory approach might work. The relevant press release suggested that this work would be completed around 2013:146

The Commission is to begin a programme of consultation with the private sector to develop a set of measures for reporting on the gender pay gap, following a request from the Government today.

Research shows that the gap is wider in the private sector than in the public sector, (a full-time gap of 21.7 per cent compared with 13.8 per cent) and that far fewer private sector employers are undertaking pay audits as a way of addressing the issue (23 per cent compared to 43 per cent).

The Commission will be consulting with the CBI and other business bodies, the TUC and individual trades unions, women’s groups and other stakeholders throughout Great Britain on the most appropriate ways for measuring and publishing pay differentials.

The Commission aims to put out a document for consultation in the summer, followed by initial proposals on headline indicators. Leading on from this consultation, the Commission will produce an annual report on the gender pay gap. By 2012/13, the Commission will produce a final report which will set out the reporting structure to be adopted by all companies with more than 250 employees.

Various criticisms of these provisions have emerged in recent press articles and include:147

146 EHRC, Commission to undertake consultation into gender pay gap, 27 April 2009

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 The raw statistics disclosed as a consequence of the requirements will not reveal anything that is not already known from the currently available data.

 It will leave unaddressed the underlying reasons behind pay disparities which are seen to be mainly educational and social rather than discriminatory.

 If the main reason behind the gender pay gap is that fewer women have higher paid roles; then the solution lies not in published figures stigmatising particular employers, but better careers advice and childcare provision.

 Employers will easily find a way to evade the intention behind the requirements by various means such as changing job titles.

 The provisions place undue burdens on business in proportion to any benefits that they might bring, in particular small business.

 They will inhibit the creation of new employment.

Gender pay differences vary from sector to sector. The EHRC is also currently conducting an investigation into pay disparities in the financial sector which has been the source of particular concern. This example is frequently referred to in calls for a more mandatory approach to equal pay audits. A recent press release gave an indication of some preliminary findings:

A new Commission report reveals significant gender pay gaps in the finance sector of up to 60 percent.

The findings also show that amongst the highest earners, the gender pay gap for full time hourly gross earnings is 45 percent, while women working full-time in the lowest paid roles in the sector receive on average 16 percent less in hourly gross pay than their male colleagues.

Women working full time in areas including fund management, stock broking and futures trading (within the subsector termed 'auxiliary activities') suffer the largest pay gap in the financial services sector, earning on average 60 percent less annual gross salary than men - a pay gap more than twice the national average.

In the financial services sector as a whole, female full-time employees receive 55 percent less annual gross pay and 39 percent less hourly gross pay than men. These pay gaps are also approximately double the pay gap figures for the economy as a whole. 70 percent of men in the sector earned more than £29,400 in 2007/8, while 70 percent of women earned less than £29,500.

The report also points to a 79 percent gender pay gap for annual incentive pay (which includes bonuses) for full-time workers in finance.

147 ‘Pushing the wrong way on equality’, The Guardian, 30 April 2009; ‘Harman defies business chiefs on pay equality’, The Guardian, 28 April 2009; ‘Disclosure of pay gaps will hit jobs’, Financial Times, 28 April 2009

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The gaps in incentive pay and the pay gaps more generally point to the extent to which women hold lower status, lower pay jobs in finance - even though there are equal numbers of men and women in the sector as a whole. Only 28 per cent of those working in professional occupations and 11 per cent of senior managers are women.

The report is being published as the first stage of the Commission's Inquiry into pay rates in the finance sector.148

The Conservatives have proposed making equal pay audits consequential to a finding by an employment tribunal against an employer in an equal pay claim. These proposals are embodied in a Lords Private Member’s Bill sponsored by Baroness Morris149 and explained in the relevant Conservative party policy document as follows:150

1. Tackling discrimination: compulsory pay audits for employers who discriminate

We recognise the importance of a transparent and stable regulatory framework, and we believe that the emphasis of equal pay policies should be on incentives to encourage pay equality, rather than punitive measures. However, there will continue to be a need to protect employees from employers who fail to conform to equal pay legislation.

At present, an employee who wins a tribunal case against their employer on equal pay may receive redress, but other employees who have been similarly discriminated against are not automatically helped by the finding. There is no requirement or encouragement for the employer to change its pay policy. If it does not change its policy following a tribunal decision, every employee is forced to launch individual claims against the employer. This may lead to disruption and high costs for both employers and employees.

We would introduce new rules, so that an adverse tribunal decision against an employer would automatically trigger a pay audit. The employer would have to carry this out according to agreed guidelines. This approach is a proportionate measure to protect employees against unscrupulous employers, whilst also minimising the burden on companies following a tribunal decision. T. Burden of proof: clause 130

Clause 130 sets out the detailed provisions on the burden of proof in all proceedings relating to the Bill including ‘equality of terms’ cases. The explanatory notes discuss how this alters current law as follows:

431. This clause provides that, in any claim where a person alleges discrimination, harassment or victimisation under the Bill, the burden of proving their case starts with the claimant. Once the claimant has established sufficient facts to point to a breach having occurred, in the absence of any other explanation, the burden shifts onto the respondent to show that he or she did not

148 EHRC Press release, Commission’s report into the financial sector reveals women at the top have among the highest pay gaps, 9 April 2009 149 Equal Pay and Flexible Working Bill [HL]. 150 Conservative Women’s Policy Group, Women in the World Today, 2008, page 11

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breach the provisions of the Bill. The exception to this rule is if the proceedings relate to a criminal offence.

Background

432. Under current legislation, in most cases the burden of proof is reversed once the claimant has established a case to an initial level. However, the burden of proof is currently not reversed in race discrimination claims brought on grounds of colour and nationality; claims of victimisation which relate to race discrimination; non-work disability discrimination claims; and sex discrimination claims which relate to the exercise of public functions. In these areas the burden of proof will now be reversed once the claimant establishes his or her case to an initial level.

U. Education

1. Schools: clauses 79 - 84

Part 6, chapter 1, of the Bill prohibits discrimination, harassment and victimisation in relation to education in schools. Certain ‘protected characteristics’ are not covered - age, marriage and civil partnership, pregnancy and maternity (clause 79). It would therefore not be unlawful for a school to organise a trip for pupils in one year group but not for pupils in other years, or for a school to organise a different timetable for a pupil who has a baby to help her fit her education with parenting responsibilities, for example. The prohibition on harassment of pupils or prospective pupils does not cover gender reassignment, sexual orientation or religion or belief (clause 80(10)).151

This chapter of the Bill largely replicates the effect of provisions applying to schools in current legislation and provides new protection in two significant ways, noted below.

2. Extension of gender reassignment protection to school pupils

Clause 80 extends the protection against discrimination provided in relation to school admission and in the treatment of pupils once admitted to a school is extended to transsexual pupils. Originally the Government did not intend to extend protection from discrimination against gender reassignment to schools but in the light of consultations it has now decided to do so. The Consultation Response noted that although the majority of respondents thought that protection should be extended to schools, the Government believed that there were good arguments for not doing so:

9.26 Although the majority of consultation respondents on this point favoured extending protection against discrimination because of gender reassignment in the exercise of public functions to include schools, we consider that there are good arguments for not applying the public function provisions to schools.

9.27 Some of those who called for schools to be included, including JUSTICE, the National Children's Bureau, some Unions and the Bar Council considered that legal protection is required as a means of protecting young people who are

151 For background on the reasons for this, paragraphs 13.15 to 13.24 of the Equality Bill - Government Response to the Consultation

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vulnerable to transphobic bullying and harassment in schools. While it is accepted that there may be a small number of children in schools who are undergoing gender reassignment, or intending to do so, the welfare and care of school pupils is already extensively covered by education legislation, common law and the Human Rights Act. For the very small number of cases of such a sensitive nature which may occur in schools, we believe that these provisions are sufficient.

9.28 Our homophobic bullying guidance (issued by the Department for Children, Schools and Families) was drafted in collaboration with Stonewall but does not cover transgender issues. However, we recognise that there could possibly be cases of this nature for schools to deal with and we are therefore currently considering guidance in relation to the bullying of young people because of gender or transgender issues.

However, on 9 March 2009, Sarah McCarthy-Fry, Parliamentary Under-Secretary of State at the Department for Children, Schools and Families announced that the Government had decided to extend the provision to transsexual pupils:

T9. [261322] Lyn Brown (West Ham) (Lab): I am sure that my hon. Friend will agree that bullying in schools is insidious in all its many forms. Indeed, it has been reported that nearly half of all trans-gendered pupils attempt suicide before their 18th birthday. Will she tell me what the Government are doing to protect this very vulnerable group of young people?

Sarah McCarthy-Fry: I certainly agree that this is a very vulnerable group of young people and that any bullying in schools is a cause for great concern. We recently committed to extending guidance on homophobic bullying to include trans-gender pupils. In addition, now that we have considered the many responses we received to consultation on the 2007 discrimination law review, I am happy to announce that we will extend the discrimination provisions to include trans-gender pupils in the forthcoming Equality Bill.152

The Impact Assessment notes that the measure will ensure that educational establishments do not discriminate on the ground of gender reassignment in terms of admissions, offering benefits, facilities or services; and that it will reduce the potential stress of children experiencing gender dysphoria. It also states that the number of children with gender dysphoria is very small, and that the Gender Identity Unit at the Tavistock and Portland, the only unit in the UK which treats children with gender dysphoria, deals with around 60 new cases of gender identity disorder in children per year. Consequently, it is expected that there will be very few cases. On potential risks, the Impact Assessment notes that there may be issues concerning young transsexual people applying to single sex schools, wearing of school uniforms, use of appropriate PE facilities and objection by faith schools.153

152 HC Deb 9 March 2009 c19 Topical questions 153 Equality Bill Impact Assessment, pp 82-83

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3. Preventing victimisation of pupils for conduct of parents

Clause 81 is a new provision, protecting children in schools from being victimised as a result of a protected act of a parent or sibling, such as making or supporting a complaint about discrimination. The aim is to prevent parents being discouraged from raising issues of discrimination with a school because of worry that their child may suffer retaliation as a result. Currently such protection only applies to disabled children under the 1995 DDA. The clause seeks to replicate the effect of the provisions in the DDA and extend protection against victimisation to all characteristics covered under chapter 1 of Part 6 of the Bill.

The Impact Assessment states that any burdens arising from the measure are likely to be limited to training, updating of guidance manuals and advice to individual teachers, in the rare event that they are the subject of a complaint, and notes that schools will already be familiar with the existing disability discrimination provision. The Impact Assessment also states that overall, there could be a very marginal increase in the number of tribunal cases, either because parents feel more confident in bringing a claim (knowing their child will not suffer as a result) or because of increased victimisation claims where children do suffer as a result of their parent’s or sibling’s action. This trend is expected to be slight (unless there is currently a significant hidden problem) and is not therefore reflected in the overall costs.154

4. General qualifications bodies: clauses 90 - 93

These clauses prohibit discrimination, harassment and victimisation by qualification bodies, and place duties on them to make reasonable adjustments for disabled people. Clause 92 defines the qualifications bodies.

The clauses replicate the effect of similar provisions in current legislation, and include new provision for the ‘appropriate regulator’ to specify matters which are not subject to the reasonable adjustments duty (clause 91(7)). The Secretary of State, Scottish Ministers and Welsh Ministers are empowered to designate an appropriate regulator (clause 91(10)). The explanatory notes state that the appropriate regulator could specify, for example, that the requirement to achieve a particular mark to gain a particular qualification is not subject to reasonable adjustments. The regulator may also specify which reasonable adjustments should not be made (clause 91(7)). The explanatory notes state that it may be appropriate, for example, to allow additional time to complete an exam or to provide a reader, but not to give an exemption from part of an exam. The appropriate regulator must have regard to the need to ensure disabled candidates are not disadvantaged, and the need to maintain the integrity of the qualification and public confidence in it (clause 91(8)). Before specifying matters related to reasonable adjustments, the regulator must carry out consultation, and must publish specified matters in such manner as is prescribed (clause 91(9)).

154 Equality Bill Impact Assessment, p41

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5. Additional Support Needs Tribunals for Scotland: disability discrimination in schools: clause 110

In Scotland cases involving disability discrimination in schools are currently heard in the sheriff courts. In England and Wales disability discrimination claims in respect to school pupils are made to the First-tier Tribunal in England and to the Special Educational Needs Tribunal in Wales. Clause 110 enables disability discrimination in schools cases to be heard in the Additional Support Needs Tribunals for Scotland (ASNTS). The position for England and Wales remains unchanged.

There was consultation on whether the powers of ASNTS should be extended to include disability discrimination cases in education. The Consultation response document noted that well over 90% of the more than 50 responses on the issue were in favour of the proposal, including the President of the ASNTS and the Scottish Executive:

6.93 The President of the Additional Support Needs Tribunals for Scotland (ASNTS) considered there were strong arguments for extending the jurisdiction of the Tribunals in this manner, including:

 bringing remedies in Scotland into line with the broadly equivalent systems in England and Wales;  it is more appropriate for disability discrimination cases relating to education to be heard by Additional Support Needs Tribunals, which know and understand the school context and are experienced in dealing sensitively with cases concerning children and young people with additional support needs.  the Additional Support Needs Tribunals are very new but have established sufficient credibility and experience to warrant an extension of jurisdiction;  the Additional Support Needs Tribunals would be more accessible, more user-friendly, cheaper and able to act more responsively to the needs of the users.

6.94 The Scottish Executive also strongly favoured this proposal and drew attention to its own specific consultation exercise on this issue which attracted general agreement from all stakeholders. It saw key benefits of the tribunals as:

 being a less confrontational system;  providing a more holistic approach;  providing more opportunity for workable remedies;  being cheaper, quicker and more user friendly.

However, concerns were expressed about the proposal, also summarised in the consultation response:

6.95 Those opposing the proposal included the Sheriffs’ Association, which considered that it was not necessary to change a system that appeared to be working and that aligning the jurisdictions was not a sufficient reason of itself to justify the measure. The Faculty of Advocates also raised a number of operational and jurisdictional issues, including the need, if disability discrimination were moved to the tribunal, for the tribunal also to deal with exclusion of disabled pupils (this point, as well as the need for the tribunal also to consider admissions, was also raised by the Scottish Executive).

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Despite these concerns, the Government does not believe that any operational and jurisdictional difficulties associated with this transfer of responsibilities will be insuperable, and has stressed that the system works in England and Wales.155

V. Clubs and Associations: clauses 97 - 98

1. Private members’ clubs

In terms of coverage under existing discrimination legislation the position of private clubs and associations is not consistent across different strands. Race, disability and sexual orientation are covered whereas other strands are not. Much attention, including a series of Private Member’s Bills over the years, has focused on sex discrimination in private clubs encompassing issues such as working men's clubs. The background to this is given in a section below.

Part 7 of the Bill provides a unified framework for associations which will extend to gender, age, religion, pregnancy and maternity, and gender reassignment. The protections from discrimination include harassment and victimisation. Exceptions to liability are set out in schedule 16. The duty to make reasonable adjustments will also apply to associations by virtue of clause 98 with further detail contained in schedule 15.

Clause 96 sets out the basic prohibitions relating to members and associates. Clause 97 extends protection for guests across all strands where at present it only applies in the case of disability.

An association is defined in clause 101 for the purposes of the Bill as being:

 an association with more than 25 members;  whose membership is not open to the public or a section of the public; and is  regulated by the rules of the club involving some form of genuine selection process.

2. Political parties

The Labour Party’s use of all-women shortlists before the 1997 General Election was found by an employment tribunal to breach the 1975 SDA (the Jepson case).156 The tribunal found that the women-only shortlist policy contravened s13 (1), holding that selection as a parliamentary candidates constituted an authorisation needed for the profession of Member of Parliament.157

To permit all-women lists the Sex Discrimination (Election Candidates) Act 2002 amended the 1975 SDA to allow political parties all-women shortlists of candidates for

155 Consultation Response, paragraph 6.96 156 Jepson and Dyas-Elliott v the Labour Party and others [1996] IRLR 166 157 For further information about all-women shortlists see Library Standard Note, SN/PC/5057

78 RESEARCH PAPER 09/42 parliamentary elections; elections to the European Parliament; elections to the Scottish Parliament; elections to the National Assembly for Wales; and most local government elections.158

The 2002 Act included a “sunset clause” that provided for the provisions to expire at the end of 2015, although there were provisions to extend the life of the Act by an order that had to be approved by both Houses of Parliament.159

The Consultation document reviewed the use of all-women shortlists and noted that “while there has been progress, it is possible that in 2015 the UK Parliament will still be a long way short of containing broadly equal numbers of women and men”. In the Consultation Response it said that “the great majority (more than 90 per cent) of the nearly 150 respondents on the issue of women-only shortlists agreed that the existing provision should be extended”.

The table below gives a list of seats where female Labour candidates stood, having been selected through all-women shortlists, in 1997 and 2005.

Constituency Candidate (all elected Party Date unless otherwise stated) Aberdeen South Anne Begg Lab 1997 Amber Valley Judy Mallaber Lab 1997 Ayr, Carrick and Sandra Osborne Lab 1997 Cumnock Basildon Angela E Smith Lab/Co-op 1997 Birmingham, Gisela Stuart Lab 1997 Edgbaston Birmingham, Yardley Jayne Innes (not elected) Lab 2005 Bishop Auckland Helen Goodman Lab 2005 Blaenau Gwent Maggie Jones (not elected) Lab 2005 Brentford and Ann Keen Lab 1997 Isleworth Bristol East Kerry McCarthy Lab 2005 Burnley Kitty Ussher Lab 2005 Burton Janet Dean Lab 1997 Calder Valley Chris McCafferty Lab 1997 Cardiff North Julie Morgan Lab 1997 Cleethorpes Shona McIsaac Lab 1997 Colne Valley Kali Mountford Lab 1997 Conwy Betty Williams Lab 1997 Crawley Laura Moffat Lab 1997 Durham, City of Dr Roberta Blackman-Woods Lab 2005

Erewash Liz Blackman Lab 1997 Falmouth and Candy Atherton Lab 1997

158 Sex Discrimination (Election Candidates) Act 2002 (chapter 2), section 1 159 ibid, section 3

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Camborne Forest of Dean Diana Organ Lab 1997 Forest of Dean Isabel Owen (not elected) Lab 2005 Gateshead East and Sharon Hodgson Lab 2005 Washington West Hackney South and Meg Hillier Lab 2005 Shoreditch Halifax Linda Riordan Lab 2005 Hammersmith and Melanie Smallman (not Lab 2005 Fulham elected) Hove Celia Barlow Lab 2005 Isle of Wight Deborah Gardiner (not Lab 1997 elected) Islington South and Emily Thornberry Lab 2005 Finsbury Keighley Ann Cryer Lab 1997 Kingston upon Hull Diana Johnson Lab 2005 North Lancaster and Wyre Anne Sacks (not elected) Lab 2005 Leeds North West Judith Blake (not elected) Lab 2005 Lincoln Gillian Merron Lab 1997 Liverpool, Garston Maria Eagle Lab 1997 Liverpool, Riverside Louise Ellman Lab/Co-op 1997 Llanelli Nia Griffith Lab 2005 Luton South Margaret Moran Lab 1997 Mitcham/Morden Siobhan McDonagh Lab 1997 Milton Keynes South Dr Phyllis Starkey Lab 1997 West

Constituency Candidate (all elected Party Date unless otherwise stated)

Newport East Jessica Morden Lab 2005 North East Derbyshire Natascha Engel Lab 2005 Northampton North Sally Keeble Lab 1997 Oxford West and Susan Brown (not elected) Lab 1997 Abingdon Peterborough Helen Brinton (later Clark) Lab 1997 Plymouth, Devonport Alison Seabeck Lab 2005 Plymouth, Sutton Linda Gilroy Lab/Co-op 1997 Portsmouth North Sarah McCarthy-Fry Lab 2005 Preseli Pembrokeshire Jackie Lawrence Lab 1997 Preseli Pembrokeshire Susan Hayman (not elected) Lab 2005 Redditch Rt Hon Jacqui Smith Lab 1997 Regent’s Park and Karen Buck Lab 1997 Kensington North Sheffield, Hillsborough Angela C Smith Lab 2005 Slough Fiona Mactaggart Lab 1997 South Swindon Anne Snelgrove Lab 2005 Stirling Anne McGuire Lab 1997 Stockton South Dari Taylor Lab 1997 Stourbridge Debra Shipley Lab 1997 Stourbridge Lynda Waltho Lab 2005 Swansea East Sîan James Lab 2005 Wakefield Mary Creagh Lab 2005

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Welwyn Hatfield Melanie Johnson Lab 1997 West Ham Lyn Brown Lab 2005 West Lancashire Rosie Cooper Lab 2005 Wolverhampton South Jenny Jones Lab 1997 West Woodspring Debbie Sander (not elected) Lab 1997 Worsley Barbara Keeley Lab 2005

 35 (out of 38) AWS candidates were successful at the 1997 general election; 23 (out of 30) at the 2005 general election.

 Three AWS candidates were not successful at the 1997 general election: in the Isle of Wight; Oxford West and Abingdon; and Woodspring. Seven AWS candidates were not successful at the 2005 general election: in Birmingham Yardley; Blaenau Gwent; Forest of Dean; Hammersmith and Fulham; Lancaster and Wyre: Leeds North West; and Preseli Pembrokeshire.

 Sources: Library Parliamentary Information List, Labour women candidates in women- only seats 1997; 2006/11/27-RSS; 2007/5/7-PCC; David Cutts, Sarah Childs and Edward Fieldhouse, ‘This what happens when you don’t listen’: all-women shortlists at the 2005 general election, Party Politics 2008 14: 575-595

The impact of AWS can be derived from the following table:

Table 1 All-women shortlists: candidates and MPs elected

1997 2005

All-women shortlist candidates Number 38 30 % of Labour women candidates 24% 18% % of all Labour candidates 6% 5% MPs elected from all-women shortlist Number 35 23 % of all-women shortlist candidates 92% 77% % of Labour women MPs 35% 23% % of all Labour MPs 8% 6%

Sources: Rallings & Thrasher, British Electoral Facts 1832-2006 Butler, British General Election of… series

Female representation amongst Members since 1992 is shown in the table below:

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Table 2 Women candidates and MPs elected: 1992-2005

Number % total 1992 1997 2001 2005 1992 1997 2001 2005

Women candidates Conservative 63 69 92 122 10% 11% 14% 19% Labour 138 157 149 166 22% 25% 23% 26% Liberal Democrat 143 140 139 144 23% 22% 22% 23% Other 227 306 256 288 22% 17% 18% 17% Total 571 672 636 720 19% 18% 19% 20% Women MPs elected Conservative 20 13 14 17 6% 8% 8% 9% Labour 37 101 95 98 14% 24% 23% 28% Liberal Democrat 2 3 5 10 10% 7% 10% 16% Other 1 3 4 3 4% 10% 14% 10% Total 60 120 118 128 9% 18% 18% 20%

Source: Rallings & Thrasher, British Electoral Facts 1832-2006 Even before the Consultation response was published the Government had made known its plans to extend the amendment to the 1975 SDA permitting all-women shortlists to 2030.160 The Consultation document proposed including measures to “extend the use of women-only shortlists, which are due to expire in 2015, to 2030” in the forthcoming Bill.161

Clause 99 makes new provisions for political parties to make selection arrangements for candidates to address the under-representation of certain groups in elected bodies. For example, political parties will be able to reserve places on shortlists of candidates for people on the grounds of race or disability but will not be able to have a shortlist comprised solely of people selected on these grounds. The clause also allows women– only shortlists of candidates since sub-section 99(7) exempts sex from the restrictions on drawing up shortlists of people with a particular protected characteristic.

Clause 100 is a “sunset clause” makes provision for repealing sub-section 99(7) at the end of 2030 unless an order is made before that date to extend this time limit.

The provisions will apply to shortlists for candidates at Parliamentary elections; elections to the European Parliament, the Scottish Parliament, the National Assembly for Wales and local elections (excluding elections for the Mayor of London).

A significant case concerning the selection of parliamentary candidates, Watt v Ashan, received House of Lords judgement in 2007. On 26 February 1998 Mr Ahsan made a complaint to an employment tribunal, alleging that the Labour Party had discriminated against him on racial grounds. After years of litigation the House of Lords found against the Labour Party.162 The decision of Lord Hoffman recorded some of the facts as follows:

160 Office of the Leader of the House of Commons, Preparing Britain for the Future – the Government’s Draft Legislative Programme 2008/09, May 2008, Cm 7372, p43, http://www.official- documents.gov.uk/document/cm73/7372/7372.pdf 161 Consultation Document Cm 7431, p28, 162 Watt v Ashan [2007] UKHL 51

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The tribunal reached its conclusion in paragraphs 55 and 56:

"55. The applicant is himself of Pakistani Muslim origin. The respondent identified him with that section of the community and with those perceived problems and with the embarrassment which the party and the city council had suffered as a result of them. A councillor not of the same racial group would not in the respondent's eyes be likely to identify with the Pakistani Muslim community in particular, or to pursue the same campaigns…"

"56. It was perfectly plain to us on the evidence we heard that the respondent wanted the applicant off the council. There was more than one reason for that. However, the ethnic origins of the applicant, and of Ian Jamieson, were not irrelevant to the respondent's considerations. Considerations relating to the applicant's ethnic origins were a significant cause of his non-selection by the respondent in December 1997."

These two paragraphs are saying, as clearly as you could wish, that a significant reason why Mr Jamieson was chosen instead of Mr Ahsan was that Mr Jamieson was white and Mr Ahsan was Pakistani. It did not say that Mr Jamieson was a statutory comparator because in some respects his circumstances were obviously different. But it regarded his selection as evidence that a person whose circumstances were the same as those of Mr Ahsan but who was not Pakistani would not have been rejected. That is discrimination on racial grounds.

Buxton LJ, with the benefit of further reflection after the end of argument, was not satisfied that the findings were sufficient. After quoting extracts from the passages to which I have referred, he said that "on their face, these findings are more than sufficient to ground a finding of discrimination." So they are. But, he said, the point was not so simple. The Labour Party's wish not to have a candidate who would be seen to identify with the Pakistani community was a "legitimate objective…provided that the perception that the problem was predominantly a Pakistani one was itself legitimate": [2005] ICR 1817, para 93.

What is the difference between a legitimate and an illegitimate perception that the problem is a Pakistani one? Buxton LJ , at para 94, said it would have been illegitimate if "the judgment that the problems were particularly associated with the Pakistani community had been influenced at least in part by the racial make- up of that community." But he said that there was no finding to this effect.

I must confess that I have great difficulty in understanding the distinction. How can one form a view that a problem is "associated with the Pakistani community" but reach that view uninfluenced by "the racial make-up of that community"? Its racial make-up is what enables it to be described as a Pakistani community. The only meaning which I can ascribe to the distinction is that it would be acceptable for the Labour Party to discriminate against a Pakistani candidate if they held no racist views about Pakistanis but thought that it was better not to have a Pakistani candidate because the electorate would identify "the problem" with the Pakistani community.

If that is what the distinction means, it seems to me unacceptable. It is nothing more than the old plea that you have nothing against employing a black person but the customers would not like it. In essence it is a defence of justification based on political expediency. It may salvage the purity of the personal motives

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of the selection panel but it does not in my opinion satisfy the terms of the 1976 Act, which does not allow any justification for "direct" discrimination. It simply says that one shall not discriminate on racial grounds.

On the second complaint, the tribunal found the allegation of victimisation made out on the facts. On the third complaint, the allegations of racial discrimination and victimisation in relation to the shortlisting of candidates for the council in 2000 were again found proved. A separate allegation of discrimination in relation to election to the National Executive Committee was dismissed. All of these complaints turn upon findings of fact against which there is no appeal.

I would therefore allow the appeal and restore the decision of the employment tribunal.

W. Enforcement

1. Civil Courts: clauses 108 - 113

Part 9 of the Bill deals, amongst other things, with the enforcement of the Bill’s provisions in the civil courts.

Changes to civil court jurisdiction were heralded in the Consultation document163, which had indicated that:

7.21 Complaints of discrimination in most non-employment cases are handled by county courts (sheriff courts in Scotland). There are also specialist tribunals dealing with allegations of discrimination in some areas of education.

The Consultation document posed several questions. It particularly considered whether it would be beneficial to increase the use of expert assessors in discrimination cases.

The paper noted that:

Assessors must currently be used to provide expertise on discrimination law in race discrimination cases unless both parties agree otherwise. In Scotland assessors can also be used in all other discrimination cases in the sheriff courts. In England and Wales, they may be used in sex discrimination cases, but there is no provision for their use in discrimination cases on the other protected grounds.164

It made a number of other suggestions for change, including designating certain courts to hear all non-employment discrimination cases. Within those courts, the paper proposed that a small number of judges could be provided with specialised training in discrimination law and could be charged with hearing all discrimination cases.

163 From para 7.20 164 Para 7.25

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It also addressed the issue of disability discrimination education cases in Scotland165 and noted that:

At the request of Scottish Ministers, the Government is considering whether disability discrimination education cases in Scotland should be transferred to the Additional Support Needs Tribunals for Scotland, thereby mirroring the situation in England and Wales, which is generally regarded as working well.166

Clause 108 sets out the types of claims that a county court (or in Scotland a sheriff’s court) would have the jurisdiction to hear. The relevant claims would include those related to the provision of services, the exercise of public functions, the disposal and management of premises, education (other than in relation to disability) and associations. Clause 108(6) provides for a new presumption that a judge (or sheriff) would appoint an assessor to assist the court when hearing discrimination cases, unless the judge was satisfied that there were good reasons for not doing so (currently this practice only occurs in cases involving race and sex discrimination). The explanatory notes suggest that judges could reach such a conclusion where they were satisfied with their own level of experience, or where the nature of the case or wishes of the claimant justified such an approach.

Clause 109 states which immigration cases are outside the jurisdiction of the county or sheriff courts and is simply designed to replicate the effects of current legislation.

Clause 110 relates to education related claims under the Bill. As mentioned above, while the position for England and Wales remains unchanged, the Bill would enable disability discrimination in schools to be heard by the Additional Support Needs Tribunals (Scotland), rather than the sheriff courts.

Clause 111 would operate in circumstances where national security considerations apply. The clause would allow rules of court to be made in relation to proceedings on a claim brought under clause 108. Such rules could enable the court to exclude a claimant (or pursuer); the claimant’s representative, or an assessor from part or all of the proceedings. In those circumstances, the Attorney General (or the Advocate General for Scotland) would be able to appoint a special advocate to represent the claimant’s interests. The explanatory notes acknowledge that while, in part, the provision is designed to replicate powers in existence, they would also extend the current powers by applying them to claims for all protected characteristics.

Clause 112 sets out the relevant time limits for bringing a claim under clause 108. It provides for a six month limit (starting with the date of the act to which the claim relates, or alternatively, such other period as the county court of sheriff things just and equitable). Clause 112(2) provides for an exception to this rule, which would extend the relevant time limit to nine months, where: (a) a claim has been referred to a student complaints scheme within six months, or (b) a claim has been referred for conciliation to the Equality and Human Rights Commission within six months. Clause 112(6) states that where the conduct arises over a period of time, time begins to run at the end of the relevant period,

165 Para 7.27 166 Ibid

85 RESEARCH PAPER 09/42 although where there is “a failure to do a thing” that is to be treated as occurring when the person in question decided on it.

2. Employment tribunals: clauses 114 – 126 a. Recommendations

In terms of remedies that are available where an employment tribunal finds against an employer the most common one is financial compensation. Besides this, a tribunal can make declarations of recommendations for the benefit of individual claimants.

Clause 118 extends employment tribunal's powers to make recommendations in ways that might benefit other employees who may not have been involved in the proceedings. This could include matters such as retraining staff, developing and publishing equal opportunities procedures, setting up panels or reviews within the organisation, or any other “appropriate recommendation”. This kind of measure was anticipated in the Consultation response:

We are consulting on the practicalities of allowing employment tribunals to make wider recommendations through the Dispute Resolution Secondary Legislation Consultation, which closes on 26 September 2008.

The Government response to the Dispute Resolution Secondary Legislation Consultation was published in December 2008.167 This issue is discussed at pages 9 and 10 of that document. Concerns were raised in the consultation as regards increased complexity and cost of proceedings. b. Collective redress mechanisms

A number of respondents to the Consultation called for collective redress mechanisms to be established in employment tribunals. Some of these concerns arise out of the huge increase in equal pay claims in recent years. In many instances a number of cases stem from a common set of circumstances which might benefit from a different kind of enforcement procedure. It is also sometimes argued that collective redress would improve the prospects for litigation in terms of producing more enduring social change. Individuals may also fear victimisation in taking legal action on their own behalf.

The issue was covered in the consultation response which referred to interim finding of the Civil Justice Council which was published in August 2008:168

The Civil Justice Council will publish its interim findings on collective redress mechanisms across the legal system for further consultation shortly, followed by formal advice to the Lord Chancellor later this year. We have set up a cross- Government working group, which will consider the Civil Justice Council’s interim report and respond to its final recommendations. Alongside this work, the

167 BERR, Response to the Dispute Resolution Secondary Legislation Consultation, December 2008 http://www.berr.gov.uk/files/file49216.pdf 168 Civil Justice Council, Reform of Collective Redress in England and Wales: A perspective of need, August 2008

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Government Equalities Office will be undertaking more detailed analysis to consider whether there is a case for representative actions in the discrimination context, including by commissioning some desk research over the summer.

3. Employment Tribunals: statistics

The total number of discrimination claims169 was 100,867 in 2007/08, around 34% of all employment tribunal claims. Almost two thirds of these were equal pay claims, which totalled 62,706. Sex discrimination claims were the next largest category, with a total of 26,907. Discrimination claims made up 24% of claims disposed of in the year. Overall, 4.2% of discrimination claims disposed of were successful at tribunal and a quarter was settled through the Advisory, Conciliation and Arbitration Service. 2.9% of sex discrimination, 3.4% of race discrimination and 3.5% of disability discrimination claims were successful at tribunal.

More detailed statistics on employment tribunals is given in Library Standard Note SN/EP/3795, An overview of statistics on equality and discrimination.

X. Public sector duties: clauses 143-153

Clause 143 makes provision for a new unified public sector duty covering all the anti- discrimination strands. Designated public bodies will be obliged to have “due regard” to objectives that are intended to promote equality. Such duties exist in current legislation and essentially structure the exercise of administrative discretion. There have been calls for the Bill to contain a stronger wording that might place more positive obligations on public sector bodies to take action to address inequalities. Some point to the danger that such duties could end up as simply “box ticking exercises”.

Schedule 19 lists the public bodies that will be covered by the duty. The explanatory notes state that this is based on Schedule 1A the Race Relations Act. In addition, the duty will also cover others who may exercise “public functions” defined by reference to the definition of public functions contained in Human Rights Act 1998.

Schedule 18 sets out exceptions and further detail together with a power to make amendments. Bodies such as Parliament, the armed forces and security services are excluded in terms of the public functions they exercise.

Clause 145 gives Ministers the power to add to the list of public bodies covered by the duty and clause 147 gives them the power to detailed specific duties such as the preparation of equality schemes or equality impact assessments. Clause 150 provides that enforcement will not be possible by means of a private claim for damages for breach of statutory duty.

There are now various equality duties on public sector organisations imposed by legislation. These have been introduced for race, gender and disability. The primary

169 Including sex, disability, race, religious, sexual orientation and age discrimination and equal pay claims. Statistics taken from Employment Tribunals Service, Annual Statistics 2007/08.

87 RESEARCH PAPER 09/42 legislation creating these duties gives powers to Ministers to legislate for actions required of specific public sector bodies to which they apply. So far these have required listed public authorities to publish some kind of equality scheme; prescribing the various components of such a scheme. For example, regulations requiring certain public authorities to publish a Disability Equality Scheme and that such a scheme shall include a statement:

that authority's methods for assessing the impact of its policies and practices, or the likely impact of its proposed policies and practices, on equality for disabled persons 170

Equalities impact assessments are one of a number of ways that public authorities may fulfil their general duties to promote equality of opportunity. For example, they may be prepared by local authorities for major changes in policy, or by departments for major policy changes, or as part of the regulatory impact assessment (IA) process that accompanies legislation. Many public sector organisations are now publishing generic equalities impact assessments since that is a simpler approach and may have been in anticipation of the likely requirements of the Bill.

1. Current public sector duties

The currently legislated public sector duties are as follows: a. Race

The general duty, as set out in section 71(1) of the Race Relations Act 1976, as amended requires a listed public authority, ‘in carrying out its functions, have due regard to the need to:

 eliminate unlawful discrimination, and;  promote equality of opportunity and good relations between persons of different racial groups.’

The general duty applies to all public authorities listed in Schedule 1A of the Race Relations (Amendment) Act 2000. There are approximately 43,000 public authorities bound by this duty and it is obligatory for all those authorities to ensure they are meeting the general duty.

For public authorities listed in the original Race Relations (Amendment) Act 2000 the general duty came into effect on 2 April 2001, along with a series of other amendments to the Act. For those authorities added to the Schedule 1A on 24 October 2001, the general duty came into effect on 3 December 2001.

170 Regulation (3)(b) of the Disability Discrimination (Public Authorities) (Statutory Duties) Regulations 2005

88 RESEARCH PAPER 09/42 b. Gender

The Equality Act 2006 introduced a general duty – the equivalent of a lawful overarching obligation – on public authorities requiring them, as employers and service providers, to have due regard to the need to:

 eliminate unlawful discrimination and harassment; and  promote equality of opportunity between men and women.

The duty to eliminate unlawful discrimination will also cover breaches of the Equal Pay Act 1970. On 7 November 2006, DCLG Ministers laid the secondary legislation necessary to bring the Gender Equality Duty into effect on 6 April 2007.171 The secondary legislation applies only to English, English/Welsh public authorities and to reserved functions of public authorities in Scotland. They do not apply to public authorities operating solely or exclusively in Wales. c. Disability

The general duty arises under section 49A of the Disability Discrimination Act 1995 and came into force 4 December 2006. Section 49D gives the Secretary of State the power to impose specific duties. The Disability Discrimination (Public Authorities) (Statutory Duties) Regulations 2005 impose duties on public authorities listed in Schedule 1 and 2 to the Regulations requiring them to publish a Disability Equality Scheme and prescribing the various components of such a scheme.

2. Procurement: clause 149

Clause 149 gives the power to provide for specific duties relating to public sector procurement. In this way procurement is seen as a way of promoting equality since then the process of letting public contracts equality related requirements can be placed upon private sector providers. This was mentioned in the consultation response:

5. £160 billion is spent by the public sector on private sector contracts every year. The Equality Duty will require public bodies to give due regard to the need to tackle discrimination and promote equality through their purchasing functions. We will use this purchasing power to help us deliver our public policy objectives of greater equality.172

These proposals follow the Women and Work Commission recommendations.173 The question arises as to how this will fit in with the existing legal framework. A variety of domestic laws (for example the Local Government Act 1999) and European public procurement law place duties on public authorities making them accountable for achieving “best value”. Schedule 26 of the Bill contains various measures addressed to local government procurement and the requirement in legislation to obtain “best value”.

171 The Sex Discrimination Act 1975 (Public Authorities) (Statutory Duties) Order 2006 SI No.2930 The regulations were made under sections 76B(1) and 76C(2) of the Sex Discrimination Act 1975. Sections 76B and 76C were inserted by section 85 of the Equality Act 2006. 172 GEO, The Equality Bill – Government Response to the Consultation, CM 7454, July 2008, page 5 173 Women and Work Commission, Final Report, Shaping a Fairer Future, 27 February 2006:

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This kind of approach to procurement was common in the days of the Greater London Council. At that time it was mainly addressed at the treatment of workers and employment rights. The previous Conservative Government introduced legislation to restrict this kind of approach in local authority procurement. Before 1988, the practice of public authorities insisting on various clauses relating to the treatment and conditions of the contractor’s workforce was common. This came to be known as “contract compliance”. Such decisions could be challenged in judicial review proceedings. For example, the question of the capacity in which the public authority operates might be tested as to whether the decision to impose contract compliance conditions relied on “secondary” considerations, not contemplated by the legislation conferring the authority.174 In light of the scope of these practices to politicise government procurement and perhaps overshadow economic prudence, the formidable purchasing power of public authorities was brought under statutory control by section 17 of the Local Government Act 1988 which compels public procurement to take a “best value” approach.

The body of legislation governing this area is extensive.175 Procurement exercises are legally complex with both domestic and EU rules to adhere to. EU rules are intended to ensure the free movement of goods and services within the EU and that public sector purchasing decisions are based on value for money achieved through competition. The EU procurement guidance suggests that “social considerations” such as equal opportunities may be taken into account, but these will be subservient to the main economic criterion and could be limited to occasions where the award criteria is linked to the subject-matter of the contract or the manner in which it is performed:

The common factor shared by all criteria used for evaluation of offers is that they must, like the criteria cited as examples, all concern the nature of the work which is the subject-matter of the contract or the manner in which it is carried out.176

These are complex issues on which probably only legal specialists in procurement law will be able to form a view. An additional question that may be asked concerns how far these requirements will be taken up in reality.

Y. Positive action: clauses 152 and 153

Clauses 152 and 153 set out provisions for positive action. There is a common distinction made between positive action and positive discrimination although these two terms are often confused or used synonymously. “Positive discrimination” in employment normally indicates actions that seek to redress historically sedimented inequalities through a reverse principle of discrimination in favour of a disadvantaged group. Under existing employment legislation this is almost always unlawful. Positive discrimination is often contrasted with “positive action” which is designed to counteract the historical effects of past discrimination and address stereotyping through measures

174 See Professor Sue Arrowsmith, The Law of Public and Utilities Procurement, 1996 175 EU Commission Procurement Website 176 EU Commission, Interpretive Communication from the Commission on the Community law applicable to public procurement and the possibilities for integrating social considerations into public procurement, COM(2001) 566 final, 15 October 2001

90 RESEARCH PAPER 09/42 that support a particular group without violating the principle of non-discrimination (which in employment cases would probably be contrary to EU law).

The right to non-discrimination is protected under the European Convention on Human Rights but these principles allow for positive action. A GEO memorandum to the Joint Committee on Human Rights sets out the relevant human rights issues:

263. Clause 152 allows positive action measures to be taken. In both EC and domestic law, it is accepted that in order to achieve full equality in practice, disadvantaged groups may actually require different treatment and equal treatment may perpetuate any disadvantage, because not all groups start off from the same position. This is a purely permissive provision which allows measures to be taken to overcome or minimise any disadvantage or to encourage participation in an activity where participation is disproportionately low. As this provision is an exception to the equal treatment principle, by definition, any measures taken in favour of a disadvantaged group will discriminate against advantaged groups. This may raise Article 14 concerns where other substantive Convention rights are engaged, for example, Article 8. However, we consider that such discrimination could be justified because it is in pursuance of a legitimate aim, which is to help disadvantaged groups to achieve a level playing field. The provision has an in- built proportionality test, in that it can only be invoked in certain cases – and where the disadvantage etc ceases, it can no longer be used. 177

A variety of actions or decisions characterised as positive action are permitted by existing legislation in circumstances such as training or career development, but these measures stop short of allowing positive action in recruitment or promotion. The positive action provisions contained in the Bill extend this position. As with existing measures they are permissive rather than mandatory. More robust mandatory positive action measures exist in other jurisdictions notably the US and South Africa, where they are normally intended to address historical inequalities that have resulted from long periods of active discrimination and social disadvantage, such as have risen when a particular group has lacked political franchise within society.

Reservations about positive action as a means of achieving equality in employment normally include the following:

 Those who are intended to benefit from positive action might feel patronised; or uncertain as to whether they obtained a particular position on their own merits; or might prefer not to be seen as a “charity case”.  Those who are not intended to benefit from positive action decisions might experience a sense of unfairness.  Such policies in recruitment could run the risk of not employing the best candidate.

The Consultation Response set out why the Government has chosen to extend positive action permission to recruitment and promotion:

177 GEO, Letter dated 05/05/2009 from Vera Baird MP to Andrew Dismore MP regarding the Equality Bill - Human Rights. Inc a memorandum, 5 May 2009, Deposited paper DEP2009-1293

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5.19 We welcome the evidence of positive action measures that the consultation has revealed, particularly in the public sector. However, we would like to be able to make faster progress in tackling the disadvantage and under-representation which persists despite the progress we have made. It is clear that domestic legislation, as it stands, does not offer the same range of potential measures to help disadvantaged groups as are available under European legislation.178

In the UK, calls for a more permissive framework for positive action have frequently cited the example of police forces that seek a more representative cross-section of members to reflect the communities they serve. The consultation response reflected this, summarising responses to the consultation on this issue:

5.13 Northumbria Police agreed that relaxing existing limitations would improve recruitment of minority groups but was concerned about possible public perception of this. The Association of Chief Police Officers pointed to past and ongoing activity to encourage sustained positive action and broadly welcomed the consultation paper’s proposals for a wider range of positive action measures. The Police Federation of England and Wales agreed that positive action is the correct vehicle to improve recruitment and address under-representation. It supported the consultation paper’s proposals but made clear that it was opposed to positive discrimination, because it was vitally important to retain popular support. The Association of Police Authorities pointed to a range of positive action measures and supported the proposals in principle. However, it made clear that the proposals would need to be developed with care and noted that about one-third of its membership was opposed to the idea of going beyond the existing positive action measures.179

Clause 152 sets out the general provisions in the Bill. Under 152(2), “any action” is allowed to achieve the objectives permitted by the Bill, but must be justified as a proportionate means of achieving a legitimate aim. Provisions in 152(3) give ministers the power to specify in detail actions that will not be permitted.

Clause 153 sets out more specific provisions that will apply to recruitment and promotion. This limits the range of circumstances where the permission to exercise positive action will apply to where there is parity of qualifications between candidates. In particular 153(4) provides that it will only apply if:

(a) A is as qualified as B to be recruited or promoted, and (b) P does not have a policy of treating persons who share the protected characteristic more favourably in connection with recruitment or promotion than persons who do not share it.

It is not clear precisely how broad the requirement for A to be as qualified as B is intended to be, for example, whether this would include work experience, or be limited to academic and similar qualifications.

178 GEO, The Equality Bill – Government Response to the Consultation, CM 7454, July 2008, page 65 179 GEO, The Equality Bill – Government Response to the Consultation, CM 7454, July 2008, page 63

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Clause 153(5) ensures that the permission will apply to a broad range of employment status including agency workers, partners, pupils or tenants in barristers’ chambers, or appointments to a personal office or a public office.

Z. Disabled persons transport: clauses 154 – 181

Part 12 and Schedule 20 of the Bill replicate provisions in the Disability Discrimination Act 1995, as amended, pertaining to taxis, public service vehicles and rail vehicles.

Most of these provisions are straightforward replications (though in some cases in slightly different language) from the 1995 Act. They are included in the Bill in order to bring together in one place the transport infrastructure and vehicle access provisions of the 1995 Act which are contained in Parts III and V of that Act.

The straight replications are:

 Clauses 167-174 on public services vehicles (buses) replicate sections 40-45 of the 1995 Act;

 Clauses 175-180 on rail vehicles (trains) replicate sections 46-47M of the 1995 Act; and

 Clause 181 on forgery and false statements replicates section 49 of the 1995 Act.

For further background on all these issues, see HC Library standard note SN/BT/601 – Transport: access for disabled people.

1. Taxis

Most of the provisions that relate to taxis are replicated from the 1995 Act: clauses 154- 166 on taxis replicate sections 32-38 of the 1995 Act, as amended. Sections 32-35 and most of section 36 (taxi accessibility) of the 1995 Act have never been brought into force. However, clause 158 will have the effect of bringing the remaining parts of section 36 of the 1995 Act into force and applying them to all taxis and private hire vehicles (minicabs) that are ‘designated’ (i.e. appear on a list maintained by the local licensing authority, as required by section 36A of the 1995 Act (and clause 160 of the Bill)). This will mean that, should clause 158 appear in the final Act and come into force, drivers of both designated taxis and private hire vehicles would be required to:

 carry a disabled passenger while in a wheelchair;  not make an additional charge;  if the passenger chooses to sit in a passenger seat, to carry the passenger’s wheelchair;  carry the passenger in safety and in reasonable comfort; and  provide reasonable assistance to enable the passenger to use the taxi.

By way of background, the Government may make regulations under section 36 of the 1995 Act to ensure that disabled people, including those in wheelchairs, can travel in licensed taxis in reasonable safety and comfort in England and Wales. In Scotland the

93 RESEARCH PAPER 09/42 powers to introduce regulations are contained in section 20 of the Civic Government (Scotland) Act 1982, as amended by the 1995 Act.

It was originally intended that new taxis would be wheelchair accessible from January 2002 and all vehicles from January 2012. The Government published draft specifications for taxis in August 1997.180 The proposals covered features that could be included in regulations and suggested dates for their implementation. An assessment of the economic impact showed that significant costs would be involved in providing appropriate vehicles to meet the standard applied in the bus and train regulations and the proposals were put in abeyance.

In October 2003 the Government published details of a new approach. It intended to vary the application of the regulations to target first those areas where it believed accessible taxis would make the biggest improvement and where additional cost would not have a major impact. The regulations would be introduced in these areas over a ten-year period from 2010 to 2020 and the Government would start consulting on the proposals in 2005. This would be monitored and a view would be taken in the future on whether the regulations should be extended to all areas.181 A research report into accessible taxi design was published by the Department in June 2004.182 After that, however, there was little movement.183

Then, during the debates on what became the Local Transport Act 2008, the Cross- bench Peer Baroness Chapman put down a group of amendments, with all-Party support, to apply the duties of section 36 of the 1995 Act to taxi-buses,184 making them accessible to disabled people.185 It was added to the Bill and became section 55 of the 2008 Act. Responding for the Government, Lord Bassam of Brighton said:

We are continuing to review the remaining uncommenced sections of the DDA relating to taxis, in which the noble Baroness is very interested. As I explained in December last year in response to her, we are re-evaluating all the options, regulatory and non-regulatory, in light of our better regulation agenda. We will be announcing our proposals shortly.186

In February 2009 the Department for Transport issued a consultation document on how to proceed with taxi accessibility. This stated:

The Government has not so far commenced this section of the 1995 Act, as it is currently linked to the existence of regulations made under sections 32–35 of the Act, which have not been made. The Local Transport Act 2008 includes a limited amendment to section 36. The amendment applies the section 36 duties to drivers of taxis and private hire vehicles who are providing local bus services –

180 DETR, Disability Discrimination Act 1995: the government's proposals for taxis, July 1997 181 HC Deb 28 October 2003, c10WS; DfT, Taxi accessibility regulations – policy proposals, October 2003 182 DfT, The Determination of Accessible Taxi Requirements, June 2004 183 HC Deb 17 December 2007, c1193W 184 ‘taxi-buses’ are local bus services registered and operated by taxi owners who have a "special restricted" PSV operator's licence 185 HL Deb 30 January 2008, cc624-627 186 ibid., c627

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known as taxi-buses – using a wheelchair accessible vehicle. In these cases, the local licensing authority maintains a list of taxi-buses that are identified by the authority as being wheelchair accessible. The amendment came into effect on 26 January 2009. It will apply to PHV-buses when the relevant provisions in the Local Transport Act have been commenced and we have made the necessary regulations. We intend to do so by spring 2009.

During discussions on the Local Transport Act, it became clear that disabled people and local licensing authorities were keen to see commencement of section 36 as an additional enforcement tool.187

It set out three options on how to proceed:

 a ‘do nothing’ option – that is, leaving the market, the trade and local licensing authorities to continue to make local decisions on the make-up of the taxi and private hire fleet and levels of accessibility, without any additional Government guidance or intervention;

 implementing a pro-active programme of DfT led initiatives that would involve measures such as issuing technical standards as an advisory note, guidance to local licensing authorities, a demonstration scheme, additional enforcement provisions and making best use of other Government policy levers; and

 regulation: either using the regulation-making powers that are currently in part 5 of the Disability Discrimination Act 1995, or seeking new or amended regulatory-making powers at the next legislative opportunity.188

The consultation closed on 24 April 2009. It seems reasonable to assume that the responses to this consultation will determine whether, and how, the Government proceeds with bringing the rest of the provisions related to taxi accessibility into force.

2. Maritime transport

There is one further transport-related provision in the Bill, which pertains to how the services (and for disability, the public functions) provisions of the Bill relate to maritime transport (i.e. ships and hovercraft). Clause 28 of the Bill gives a Minister the power to make regulations specifying where service provisions will apply. The intention is to give certainty to people wishing to travel on ships and hovercraft that move between the waters under the jurisdiction of different countries and may, at times, be outside the jurisdiction of any State. It is as yet unclear what any such regulations might say and how they would be applied.

AA. EU Harmonisation: clause 191

When the UK joined the then European Economic Community in 1973, accession was preceded by the passing of an Act of Parliament which made the obligations under the

187 DfT, Consultation on improving access to taxis, 2 February 2009, paras 2.8-2.9 188 ibid., para 2.13

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Treaty and the law deriving from it applicable within the UK. This was the European Communities Act 1972 (here referred to as the ECA). The ECA allows specified EC instruments to become part of UK law without the need for the separate enactment of each and every EC instrument. Section 2(1) ECA gives the statutory authority for Treaty provisions and directly applicable secondary legislation automatically to have legal effect in UK domestic law without further enactment. EC legislation which is not directly applicable (e.g. Directives and Decisions) can be enacted either by primary or secondary legislation in the UK. Section 2(2) ECA confers authority on ministers, Government departments or Her Majesty in Council to make, with certain exceptions contained in Schedule 2 of the Act, subordinate legislation:

(a) for the purpose of implementing any Community obligation of the United Kingdom, or of enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised; or

(b) for the purpose of dealing with matters arising out of or related to any such obligation or rights or the coming into force, or the operation from time to time, of subsection (1) above.

Thus, equality obligations emanating from Europe can be implemented in the UK under Section 2(2) ECA. However, the ECA could not be the basis for amending aspects of the Equality Act or other domestic laws which are not linked to an EC law or obligation. According to the Explanatory note, this situation has resulted in inconsistencies, for example in the area of nationality and colour, which are covered by UK but not by EC legislation in the parameters of the Race Relations Act 1976189 (RRA) and the EC “Race Directive” of 2000.190

Section 1 (1) of the RRA 1976 provides:

1. Racial discrimination. — (1) A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if— (a) on racial grounds he treats that other less favourably than he treats or would treat other persons; or (b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but— (i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who can comply with it; and (ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of the person to whom it is applied; and (iii) which is to the detriment of that other because he cannot comply with it.

The EC ‘Race Directive’ of 2000 provides at para. 9:

189 http://www.statutelaw.gov.uk/content.aspx?ActiveTextDocId=2059995 190190 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin” at http://europa.eu/legislation_summaries/justice_freedom_security/combating_discrimination/l33114_en.ht m

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(9) Discrimination based on racial or ethnic origin may undermine the achievement of the objectives of the EC Treaty, in particular the attainment of a high level of employment and of social protection, the raising of the standard of living and quality of life, economic and social cohesion and solidarity. It may also undermine the objective of developing the European Union as an area of freedom, security and justice.

This is reflected in Article 2(a) and (b) of the Directive:

(a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin; (b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

Again (for example) at para 13:

(13) To this end, any direct or indirect discrimination based on racial or ethnic origin as regards the areas covered by this Directive should be prohibited throughout the Community. This prohibition of discrimination should also apply to nationals of third countries, but does not cover differences of treatment based on nationality and is without prejudice to provisions governing the entry and residence of third-country nationals and their access to employment and to occupation.191

Clause 191 would remedy any such inconsistencies and harmonise equality provisions by allowing a Minister to amend UK equality legislation in those areas not directly covered by EC law without the need for primary legislation.

The example of the use of this power in the Explanatory Note is of a future European Court of Justice (ECJ) judgment on the Race Directive requiring an amendment to the UK legislation to alter the definition of indirect discrimination. As the Note states, it could be used to ensure that an amendment consequent upon an ECJ ruling also applied to the “colour and nationality” elements of race in the Bill. There would be consultation and parliamentary approval requirements.

BB. Territorial extent: clauses 196 - 197

The Bill contains provisions that trigger the Sewel or Legislative Consent Convention in relation to Scotland. This provides that Westminster will not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament. The Deputy First Minister of Scotland has indicated192 agreement to seek consent on certain matters. The Scottish Government’s Legislative Consent Memorandum will be

191 The last sentence suggests that the omission of nationality was deliberate, to allow Member States to maintain some distinction between their own and other (particularly third-country) nationals. 192 Equality Bill, Bill 85-I Ex

97 RESEARCH PAPER 09/42 made available on the Scottish Parliament website193 as will the subsequent proceedings in the Scottish Parliament. If there are amendments to the Bill relating to matters which trigger the Convention, or if there are provisions which alter the executive competence of Scottish Ministers, the consent of the Scottish Parliament will be sought for them too.

Under the Welsh devolution settlement the subject matter of equal opportunities is not devolved to Wales. Certain clauses in the Bill confer powers and duties on the Welsh Ministers.

Equal opportunities and discrimination are “transferred matters” (that is devolved matters) under the Northern Ireland Act 1998. As such, with a few exceptions, the Bill does not form part of the law of Northern Ireland. As a result, the Disability Discrimination Act 1995, as amended, which extends throughout the United Kingdom, will remain in force for Northern Ireland as the repeal of that Act only forms part of the law of England and Wales and Scotland. 194 The Equalities Commission for Northern Ireland has noted that “for many years Northern Ireland had more extensive equality law in some respects than elsewhere in the United Kingdom.” The Commission has pressed the Northern Ireland Executive for a single equality bill for Northern Ireland.195

1. Clause 196 The Welsh Ministers

Clause 196 establishes the procedures that apply to regulations and orders under the Bill made by Welsh Ministers. (The executive functions of the former Welsh Office and further executive functions have been transferred to the Welsh Ministers). Those that are subject to the affirmative procedure have to be laid in draft before and approved by resolution of the National Assembly for Wales. Those that are subject to the negative procedure can be opposed and may be annulled by resolution of the National Assembly for Wales.

2. Clause 197 The Scottish Ministers

Clause 197 establishes the procedures that apply to regulations and orders under the Bill made by Scottish Ministers. (The executive functions of the former Scottish Office and further executive functions have been transferred to the Scottish Ministers). Those that are subject to the affirmative procedure have to be laid in draft before and approved by resolution of the Scottish Parliament. Those that are subject to the negative procedure can be opposed and may be annulled by resolution of the Scottish Parliament.

193 http://web.archive.org/web/20120403214047/http://www.scottish.parliament.uk/parliamentarybusine ss.aspx Includes further information about Legislative Consent Memorandum procedure 194 For background on devolution in the United Kingdom see the Cabinet Office’s devolution pages at: http://www.cabinetoffice.gov.uk/devolution.aspx; Library standard note SN/PC/04505, The UK devolved legislatures: some comparisons between their powers and work: http://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&cad=rja&uact=8&ved=0C CwQFjAA&url=http%3A%2F%2Fwww.parliament.uk%2Fbriefing- papers%2FSN04505.pdf&ei=syCHU_GfCobgOpWUgaAL&usg=AFQjCNEAjtTbt75bRrQTPmFuukpWE1 CSiw

195 “View from the Chair- changes to Equality Law, May 2009” Equalities Commission for Northern Ireland http://www.equalityni.org/sections/Default.asp?cms=News%5FNews&cmsid=1_2&id=174&secid=1_1

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3. Schedule 19

This lists the public bodies to be specified in the context of the duties in the Bill. There is provision for the Welsh Executive and the Scottish Government to amend the lists of Scottish and Welsh public bodies covered by the Bill. There is also provision for the Scottish Government to impose specific duties in relation to devolved functions of Scottish cross- border bodies.

Schedule 19 does not include either House of Parliament, the Welsh Assembly or the Scottish Parliament within the scope of the Bill. However, contracts of employment for Commons and Lords staff are covered under clause 78. III Further background

A. Discrimination law reform

1. Historical background

In 1994, the Commission for Social Justice, a body set up by the former leader of the Labour Party, John Smith, under the auspices of the Institute for Pubic Policy Research recommended a unified approach to discrimination law as one of the many recommendations in its report entitled Social Justice:

Rather than trying to develop a series of separate anti-discrimination laws, government should consider the case for a single law prohibiting unjustified discrimination in employment, education and access to goods and services. (For instance, a job applicant could not be rejected on grounds unrelated to the job.) Detailed regulations and guidance would then deal with discrimination against different groups of people. This omnibus approach would provide a legal framework which is both straightforward and flexible.196

A single statute for all equality law was a key recommendation of the “Hepple Report” in 2000, by Hepple, Coussey and Choudhury.197 The first chapter set out the reasons behind the need for a new framework, summarised as follows:

There are numerous reasons why the prevailing framework of anti-discrimination legislation in Britain needs to be reviewed:

 dissatisfaction with outdated legislation and the fragmentation and inconsistencies between four separate anti-discrimination regimes in the UK and three separate commissions in Britain  Demands for the legislation to be made more user-friendly and accessible  pressures to extend the grounds of unlawful discrimination beyond race, sex and disability

196 Commission for Social Justice, Social Justice, strategies for national renewal, Vintage, 1994, page 196 197 B. Hepple, M. Coussey, T. Choudhury, Equality: a New Framework. Report of the Independent Review of the Enforcement of UK Anti-Discrimination Legislation Oxford: Hart Publishing, 2000

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 the commitment of the government to impose positive duties on public authorities to have due regard to equal opportunities  the relative success of fair employment legislation in Northern Ireland in reducing inequality and segregation  the need to keep in line with EU law  the possibility that devolution will lead to a fragmentation of equality policies  the new political and legal culture based on the Human Rights Act  while antidiscrimination legislation has broken down many barriers for individuals in their search for jobs, housing and services, and there are fewer overt expressions of discrimination, women still face occupational segregation, concentration in low-paid, part-time work, unequal pay, pregnancy discrimination and harassment; and members of ethnic minorities, disabled persons and older people still suffer from stereotypes about their abilities  discrimination and exclusion are more complex and covert than they were three decades ago when the present framework was conceived; there are attitudes, policies and practices within organisations of the kind identified as “institutional racism” by the Stephen Lawrence enquiry; eliminating institutional barriers requires greater emphasis on changing organisational culture  although in the past five years most organisations have adopted equal opportunities policies, the main initiatives tend to be reactive and separate from each other

The present framework places too much emphasis on state regulation and too little on the responsibility of organisations and individuals to generate change. This framework adopts an inconsistent and incoherent approach to different manifestations of inequality. It was designed largely to deal with a model of organisations with hierarchical, vertically integrated and centralised bureaucracies. This is not appropriate for modern flatter organisational structures in which equality depends not simply on avoiding negative discrimination but on the active participation of all stakeholders, on training and improving skills, developing a wider social networks and encouraging adaptability. 198

Lord Lester of Herne Hill introduced an Equality Bill in the Lords on 14 January 2003 which did not become law. This comprehensive Bill, drawn up on the basis of extensive research under the auspices of the Odysseus Trust, proposed a Single Equality Act, enforced by a Single Equality Commission, which would cover all the “strands” of discrimination and all the areas in which discrimination might be outlawed. Speaking on Second Reading of the Bill, Lord Lester said:

The approach of successive governments to the increasingly complex, opaque and anomalous state of the legislation has been piecemeal and minimalist. It has involved adding new layers of legislation in bits and pieces, be they to implement European Community law, to introduce half

198 Hepple, Coussey, Choudhury, Equality: a New Framework. Report of the Independent Review of the Enforcement of UK Anti-Discrimination Legislation Oxford: Hart Publishing, 2000, Executive Summary pages xiii-xiv

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measures on disability discrimination, or, now, to give effect to the new but restricted EU equality directives.199

2. Single Equality Act

In the 2005 Labour Party Manifesto the Government announced a commitment to introduce a Single Equality Act by the end of the current Parliament:

In the next Parliament we will establish a Commission on Equality and Human Rights to promote equality for all and, tackle discrimination, and introduce a Single Equality Act to modernise and simplify equality legislation.200

The Equality Act 2006 established the Commission for Equality and Human Rights (subsequently renamed Equality and Human Rights Commission) and brought in new measures advancing discrimination protection. A joint DTI and Cabinet Office press release announced a review of discrimination legislation and suggested that one of the first tasks of the Commission would be to look at the creation of a Single Equality Act.201

3. Discrimination Law

A "classic liberal definition of the aims of anti-discrimination legislation", was set out by the Race Relations Board in their report of 1966-67, just before the passing of Britain’s second Race Relations Act which came into force on 26 November 1968:

1. A law is an unequivocal declaration of public policy.

2. A law gives support to those who do not wish to discriminate, but who feel compelled to do so by social pressure.

3. A law gives protection and redress to minority groups.

4. A law thus provides for the peaceful and orderly adjustment of grievances and the release of tensions.

5. A law reduces prejudice by discouraging the behaviour in which prejudice finds expression.202

In the intervening forty years have brought a revision of these ideas with the accumulation of discrimination legislation covering various new strands resulting in an extremely large and complex body of law which often requires great expertise to operate and interpret. This in turn places greater burdens on employers and tribunals leading to protracted and costly litigation without an apparent corresponding level of social gain.

199 HL Deb 28 February 2003 cc 526-527 200 Labour Party Manifesto 2005, page 112: http://web.archive.org/web/20050505063921/http://www.labour.org.uk/fileadmin/manifesto_13042005_a3 /pdf/manifesto.pdf 201 Joint DTI and Cabinet Office Release, Review of causes of discrimination announced, 25 February 2005: , Review of causes of discrimination announced 202 Report of the Race Relations Board for 1966-67, paragraph 65

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Whilst the discrimination legislation of the 1960’s and 70’s has to some extent been successful, the acknowledged persistence of specific inequalities has provoked a questioning of how effective rights for individuals to sue for compensation are at tackling these persistent problems. General public sector duties to promote equality and prohibitions against discrimination in the exercise of public functions are the kind of legislative provisions that are seen as having the potential to address these concerns. A general conceptual distinction is made between positive versus negative discrimination law, where in the past the focus has been on ‘negative prohibition on discrimination, rather than a positive duty to promote equality’.203 Many of the criticisms raised in the consultation revolved around this issue, with specific submissions calling for greater emphasis on positive measures to reduce inequality.

There are a variety of ways in which legislative provisions can address the problem of discrimination. However, due to the historical process of development in equality legislation different groups have been left with less protection than others. This phenomenon has come to be described as the “hierarchy of equality”. In examining this question, it should be noted that different measures may be seen as being appropriate for some groups but not others (for example the duty to make reasonable adjustments for disabled people or gender recognition certification for transsexual people). The causes, extent and particular impact of discrimination may also be different for different groups and awareness is building that the overlap or intersection between the various groups or equality “strands” can often present complex problems. In addition, there are changes over time in the forms in which discrimination manifests, so that legislation that was drafted to tackle a problem as it was many years ago, may not fully address the phenomenon in its present form.

4. Review

A Ministerial Statement of 25 February 2005 announced that the Government would set up the Equalities Review and the Discrimination Law Review.204 The Equalities Review was described in a press release as follows: 205

The Equalities Review, which will be chaired by Trevor Phillips and report to the Prime Minister by the summer of 2006, will:

 investigate the social, economic, cultural and other factors that limit or deny people the opportunity to make the best of their abilities;

 provide an understanding of the long term and underlying causes of disadvantage that need to be addressed by public policy;

 make practical recommendations on key policy priorities for: the Government and public sector; employers and trade unions; civic society and the voluntary sector; and

203 B. Hepple, M. Coussey, T. Choudhury, Equality: a New Framework. Report of the Independent Review of the Enforcement of UK Anti-Discrimination Legislation Oxford: Hart Publishing, 2000 204 HC Deb 25 February 2005 cc68-70WS 205 Joint DTI and Cabinet Office Release, Review of causes of discrimination announced, 25 February 2005

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 inform both the modernisation of equality legislation, towards a Single Equality Act; and the development of the new Commission for Equality and Human Rights.

The Discrimination Law Review was described in the same press release as follows:

Working in parallel to the Equalities Review, the Department of Trade and Industry will begin new work informed by the Equalities Review on the development of a simpler, fairer legal framework. Involving several government departments, the Discrimination Law Review will assess how our anti- discrimination legislation can be modernised to fit the needs of Britain in the 21st Century. This work will consider the approaches that are effective in eradicating remaining discrimination but avoid imposing unnecessary, bureaucratic burdens on business and public services.

The Equalities Review issued a call for evidence which closed on 25 November 2005.206 Following that there was an interim report on 27 March 2006. The final report entitled Fairness and Freedom: The Final Report of the Equalities Review was published on 23 March 2007.207

The terms of reference for the Discrimination Law Review are as follows.208

The Discrimination Law Review (DLR) will address long-held concerns about inconsistencies in the current anti-discrimination legislative framework. The Review is considering the fundamental principles of discrimination legislation and its underlying concepts. The Discrimination Law Review will consider the opportunities for creating a clearer and more streamlined equality legislation framework, which produces better outcomes for those who experience disadvantage.

This work will begin alongside the independent Equalities Review, which will carry out an investigation into the causes of persistent discrimination and inequality in British society. The Discrimination Law Review will consider the recommendations of the Equalities Review, which reported to the Prime Minister on 28 February 2007.

Key areas of this work will include:

 A consideration of the fundamental principles of discrimination legislation and its underlying concepts and a comparative analysis of the different models for discrimination legislation

 An investigation of different approaches to enforcing discrimination law so that a spectrum of enforcement options can be considered; An understanding of the evidence of the practical impact of legislation - both within the UK and abroad - in tackling inequality and promoting equality of opportunity;

206 Equalities Review 207 Fairness and Freedom: The Final Report of the Equalities Review, 23 March 2007 208 Discrimination Law Review terms of reference

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 An investigation of new models for encouraging and incentivising compliance;

 Consideration of the opportunities for creating a simpler, fairer and more streamlined legislative framework in a Single Equality Act. Any proposals will have due regard to better regulation principles and take into account the need to minimise bureaucratic burdens on business and public services. A key priority will be seeking to achieve greater consistency in the protection afforded to different groups while taking into account evidence that different legal approaches may be appropriate for different groups.

The Discrimination Law Review will be grounded in a comprehensive analysis of the efficacy of Great Britain's current equality enactments and the requirements of European equality legislation. The Review will not take account of views expressed on interactions between the HRA and the equality enactments.

Building on the model developed for the work to establish the Commission for Equality and Human Rights, the Discrimination Law Review will be led by the Women and Equality Unit in DTI with the close involvement of Ministers and officials in key Departments including the Department for Work & Pensions, the Home Office and the Department for Constitutional Affairs and in the Devolved Administrations.

The Discrimination Law Review Team will regularly update and consult the Equalities Review Panel and the expert Reference Group, co-chaired by the Chairs of the Disability Rights Commission and the Equal Opportunities Commission, as its work progresses. The Team will also engage more widely with key interests, including equality stakeholders, employers, business and trade unions. It will report to the Minister for Women & Equality with close engagement by Ministers across Whitehall, and at official level between the Secretariat to the Equalities Review and the Discrimination Law Review Team.

This will ensure that a full range of views of the reform of the current framework is reflected in any proposals that are brought forward.

5. Persistent Inequalities

The Final Report of the Equalities Review was entitled Fairness and Freedom and was published on 28 February 2007.209 Chapter 3 dealt with persistent inequalities and presented a model for understanding the cascading impact of some inequalities.

All kinds of disadvantage are bad for those who experience them. Most kinds of inequality are damaging for the society which has to cope with their consequences. But some kinds of disadvantage and inequality are more serious than others because of the effect they have on people’s life chances. Some are especially pernicious because they amplify or multiply the effects of other kinds of disadvantage. Overcrowded dwellings lead to poorer health; children with

209 Fairness and Freedom: The Final Report of the Equalities Review, 23 March 2007: http://www.theequalitiesreview.org.uk/publications.aspx

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nowhere to study show lower educational achievement. Families with greater access to transport are more likely to enjoy a wider and more rewarding choice of jobs and schools.

However, even beyond this kind of amplification effect, we believe that it is possible to identify a uniquely destructive class of equality gap. Within the broad context of the ten dimensions within our Equality Scorecard in Chapter 1, we have highlighted gaps that are damaging in themselves. But disadvantage in some dimensions of the Scorecard can trigger gaps in other dimensions, which in turn set off new inequalities in yet further dimensions. This is what we describe as a cascade.

For example, people with low levels of educational achievement can expect to be less employable, therefore poorer, therefore less healthy and probably less likely to participate in civic activity. The kinds of people who are less likely to be employed are also more likely to be involved in crime, to have shorter life-spans and to have less fulfilling family lives.

We recognise that there is a mutually reinforcing effect in many cases; there is no set order in which inequality occurs. The poverty of systematic data in some areas rules out any possibility of hard and fast conclusions about causation. But the evidence we have seen suggests strongly that some kinds of inequality are more likely to produce a cascade effect than others. In this chapter we identify four dimensions of the Equality Scorecard in which equality gaps are most likely to produce further waves of inequality for particular groups of people. They are early years and education, employment, health and criminal justice.

The Equalities Review made the following strategic recommendations with regard to persistent inequality:

The Government, and where appropriate the Scottish Executive and the Welsh Assembly Government, need to put in place long term strategies, with phased targets to:

 Reduce disproportionate access and use of pre-school provision, including a focus on better provision for disabled children;

 Narrow gaps in school-age educational attainment for ethnic minority pupils, including a focus on gaps in the primary phase;

 Reduce disproportionate exclusions for ethnic minority pupils and pupils with special educational needs, including in England milestones on implementation of the priority review of Black exclusions;

 Increase access and take up of flexible working for all employees;

 Narrow employment gaps, and in-work disadvantage, for women, including partnered and lone mothers;

 Narrow employment gaps for disabled people, including a focus on individuals within particular groups furthest from the labour market;

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 Narrow employment gaps between ethnic minorities and the working age population, including a particular focus on Pakistani and Bangladeshi women;

 Reduce disproportionality in the criminal justice system including a cross- Government strategy to address the wider factors that contribute to the rates of offending among young Black men;

 Tackle the under-representation of particular groups in the judiciary.

Chapter 3 of the final report of the Equalities Review identified the position of women in the labour market as an example of persistent inequality:

Women in the labour market

The Women and Work Commission charted many of the problems experienced by women in the labour market in terms of pay and career progression at work. More women than ever are in employment and are achieving higher educational qualifications. But many barriers to their success remain. The Review supports the recommendations of the Women and Work Commission which are being taken forward by the Government. The programme of reform proposed by the Commission could and should be implemented with the greatest speed possible.

The basic findings hardly need elaboration here. They are stark in their unfairness. A woman who works full-time earns only 83 pence for every pound that is earned by a man. Part-time women workers earn 32 per cent less per hour than women who work full-time and 41 per cent less per hour than men who work full-time. Women are crowded into mostly part-time jobs and in a narrow range of lower-paying occupations that do not make the best use of their skills. A woman’s ethnicity and qualification level also affect the size of the pay gap she faces, so that Pakistani and Bangladeshi women and low-skilled mothers are at very high risk of disadvantage.

Our new research reveals clearly that there is one factor that above all leads to women’s inequality in the labour market – becoming mothers.

The review also found that:

… large numbers of partnered women are currently unable to get back into the labour market and face a very heavy penalty according to our research. We strongly believe that it is time to devote at least as much attention to finding new ways of reintegrating more partnered women into working life.

Particular attention was drawn to the position of Pakistani and Bangladeshi women:

Several studies have highlighted that most ethnic minority groups experience penalties in finding work. Many of the reasons stem from the immigrant experience – encountering prejudice, unfamiliarity with a new country and poor grasp of English.

There has always been a general assumption that these penalties would be reduced for later generations born and brought up in the UK. But research has compared the employment penalties between those born overseas and usually

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arriving in early adulthood (first generation) and those born and educated in Britain (second generation). Alarmingly, there is little sign that employment penalties are reduced in the second generation. Penalties are also present at all educational levels. Black African and Bangladeshi men, for example, experience significant employment penalties.

The same research also showed that part of the penalty might be attributed to discrimination. In fact, second generation ethnic minorities are much more likely to report that they have been refused a job on the grounds of ethnicity or colour than White British. This is a finding which we believe requires further research as it clearly suggests that progress towards full integration of some ethnic minority groups has stalled at the first stage.

However, among ethnic minorities, the situation of Pakistani and Bangladeshi women merits particular focus and attention both because of the size of the penalty and its persistence. The employment penalty associated with this group of women, has remained relatively constant over the 30-year period, in contrast to White women. Pakistani and Bangladeshi women, with the same characteristics as White women, are 30 per cent more likely to be out of work.

B. Equal pay

1. Overview

Legislative provisions on equal pay that came into force in 1975 had some initial impact but have failed to close the gender pay gap. Whilst discrimination remains a key factor, the gender division of labour in childcare disadvantages women in the labour market in various ways. At the same time, inequality in pay between men and women perpetuates this due to higher male earnings. In this way, the gender division of labour is reinforced by unequal pay, which is in turn reinforced by the gender division of labour. It is also sometimes suggested that the potential for this to increase dependence on male wages within families can impose a negative dynamic on family problems such as domestic violence.

These dynamics both shape and are supported by gender related attitudes to employment, careers and training, and impact in various ways on women's income particularly in retirement, since pension entitlements are linked to labour market participation. This can be improved by discrimination laws, but also by employment rights in the field of work-life balance, although unequal rights to parental leave between men and women arguably reinforce the gender division of labour. Occupational segregation, where women are concentrated in lower paid jobs which are part time or less secure (such as temporary or agency work) is recognised as another significant element. On this basis it is often argued that women, through the devaluation of their work, continue to subsidise the labour market. In this way the issues are seen to extend beyond the prospect of statistical neutrality in comparative wage levels.

2. Equal Pay Legislation

In 1888 the first resolution was passed by the Trades Union Congress in favour of equal pay. This pledge was repeated by the TUC in 1942. In 1946 a Royal Commission on Equal Pay recommended that equal pay for women teachers, local government officers and civil servants should be introduced. In 1953 equal pay for women teachers was

107 RESEARCH PAPER 09/42 accepted, and in 1955 equal pay for women civil servants. A Private Member's Bill brought by Joyce Butler MP failed to make it onto the statute books. In 1968 Barbara Castle was Minister for Employment and Productivity. At that time pay structures were often graded into four categories: skilled, semi-skilled, labourers, and women. It was largely due to her efforts that the Equal Pay Act 1970 came into existence.

In 1969 about 35% of the labour force was female. One tenth of those were employed in public service or the professions, where overt pay discrimination had been abolished. The remaining 90% faced overt gender pay discrimination, earning 55% to 75% of the male rates for doing the same work. Opposition to the principles of equal pay was based on an outdated but nevertheless still prevalent assumption that the male wage must be higher than the female wage because the man is responsible for meeting the needs of the family from his income. It was also argued that the sex differential was justified on the ground that the costs of employing women were higher due to factors such as high absenteeism, high turnover, shorter service and higher training costs. There were also difficulties in choosing between different definitions of equal pay, for the “same work” or for work of “equal value”. Some predicted that the introduction of equal pay legislation would be harmful to women's employment. The TUC campaigned in favour of equal pay and for an “equal value” definition.

In an interview in the Independent in 1990 Barbara Castle recalled how her proposals to introduce equal pay were initially received:

In Cabinet my colleagues would say, of course you're right Barbara, but the economy just won't allow us to do anything. The prices and incomes legislation was going through at almost the same time and Lena Jeger [a Labour MP] had put down an amendment that the wages standstill should not apply to increases furthering equal pay. The Whips warned me we would be defeated on this.

I asked Roy Jenkins, who was Chancellor of the Exchequer at the time if I could say that I was starting discussions with the unions and employers on phasing in the equal pay. He grudgingly allowed me to get up and announce that, and I proceeded at once to talks with the CBI and the TUC. There wouldn't have been an Equal Pay Act without pressure from women, and if there hadn't been a woman in the ministry at the time. There would have been some vague formula: ‘The government will as soon as possible move towards...’ but I tied them down, and early in 1969 and started drafting the Bill.210

The Equal Pay Act 1970 (EqPA) received Royal Assent on 29 May 1970 but only came into force five years later on the same day as the Sex Discrimination Act 1975 (SDA) on 29 December 1975. The idea behind this was to give employers five years to implement equal pay and only thereafter would they be penalised for non-compliance. In the same year the Equal Opportunities Commission was established and the Employment Protection Act 1975 made maternity leave a statutory right. As initially drafted the EqPA did not allow for claims of equal pay for work of equal value as required by European law. In 1984 the Government finally accepted that principle and amended the Act.

210 “She won, but the war goes on”, The Independent, 2 March 1990

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The following European legislation also covers equal pay:

 Article 141 (formerly 119) Treaty of Rome in Chapter 1 of Title III (Social Policy - social provisions)

 The Equal Pay Directive: EC Directive 75/117/EEC on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women

 The Equal Treatment Directive: EC Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, (amended by the equal treatment amending directive: EC Directive 2002/73/EC of 23 September 2002.)

3. The dual system

The SDA and EqPA are two distinct legislative models: the SDA prohibits direct and indirect discrimination, victimisation and harassment on the grounds of sex, and the EqPA regulates inequalities between the contractual terms and conditions (including pay) of men and women doing equal work in the same employment. A prominent current criticism of sex discrimination legislation relates to this ‘dual’ system which some believe to be unnecessarily complicated and confusing since pay discrimination is treated differently to other cases of sex discrimination.211

Rights arising under the EqPA can be enforced either through the courts (county court or High Court as appropriate) or through an Employment Tribunal. A claim may be made by either a woman or a man claiming equal pay with one or more comparators of the other sex. The basic structure of a claim under the EqPA involves:

1. Identifying an appropriate comparator 2. Showing a difference in “pay”, this includes most contractual benefits which can be quantified in monetary terms 3. Showing that the comparator is doing "like work", "work rated as equivalent" or "work of equal value". 4. Unless the employer shows that there is a “genuine material factor” other than sex which justifies the difference in pay, there will be a breach of the EqPA.

In practice, however, the law relating to equal pay has given rise to a number of difficult legal issues, not least when it comes to selecting an appropriate comparator. Cases brought under the Act have been dogged with problems. One of the reasons for this is that the EqPA has on more than one occasion been shown to be incompatible with EC law, in particular with Article 141 (formerly Article 119) of the EC Treaty.

211 Fawcett Society, Gender Equality in the 21st Century: modernising the legislation, April 2006: http://tinyurl.com/2m2x4o (Internet Archive, retrieved 23 August 2007)

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Litigation in this area can be extremely complex and take many years to conclude. For example, Enderby and others v Frenchay Health Authority and others started in 1986 and took just over 10 years to bring it to its final conclusion.212 In a Lords debate, Lord Lester, who represented claimants in Enderby recalled the case:

I was instructed by the noble Baroness, Lady Kingsmill, and others in the speech therapists’ case. It took 11 years for a group of speech therapists to compare their work and pay with those of hospital pharmacists and clinical psychologists. By the time the case was finally decided, all the documents had been lost, the women and men concerned had died, retired or changed their work, and the remedies that were awarded were of no practical value. The poor old union had had to accumulate thousands of individual claim forms because the procedure is ludicrous and it is not possible to make a collective claim on behalf of a group of people. It was indeed a busted flush.213

In the same debate he cited Lord Denning’s view of the EqPA who thought it was “deplorable” because “Its tortuosity and complexity is beyond compare”.214

Lord Lester was also involved with Roy Jenkins in creating the original sex discrimination legislation. He recalled the fact that “we were not allowed to strengthen the Equal Pay Act because a deal had been done between employers and trade unions by which Harold Wilson’s Government regarded themselves bound”. 215

On 8 May 2001 the Government announced new proposals to simplify, and speed up the operation of equal pay laws which led to new regulations coming into effect in 2004 (the Equal Pay Act 1970 (Amendment) Regulations 2004, SI 2004/2352). With effect from 1 October 2004 substantial changes were made to the "work of equal value" parts of the EqPA section 2A.

Also with effect from 1 October 2004 new rules of employment tribunal procedure were introduced for use in work of equal value cases (the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, SI 2004/1861; schedule 6 inserted by Equal Pay Act 1970 (Amendment) Regulations 2004, SI 2004/2351). These rules are called the Employment Tribunals (Equal Value) Rules of Procedure and replaced the previous rules of procedure.

Nevertheless, criticisms of the dual system remain. These can be summarised as follows:

 Comparators: unlike sex discrimination and other discrimination legislation equal pay law requires narrower comparisons between women and men in the same employment. There are greater burdens in terms of the evidence that is required, since an actual person of the opposite sex must be found under circumstances where details of an individual's pay and terms of employment may be difficult to

212 Enderby and others v Frenchay Health Authority and others [1992] IRLR 15 213 HL Deb 23 January 2009 c1891 214 HL Deb 5 December 1983 c901 215 HL Deb 23 January 2009 c1891

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obtain. The use of so-called ‘hypothetical comparators’ common in other forms of discrimination protection are currently precluded in equal pay claims. This limits the possibilities for redress, particularly in the contemporary labour market where women face occupational segregation and where work can frequently be contracted out. Pay comparisons can also be defeated by decentralised pay structures, or where centralised pay structures and collective agreements do not cover issues such as substantial bonus payments which are decentralised.

 Vertical segregation: the nature of comparisons that are required also places limitations on the extent to which inequalities arising from vertical segregation may be addressed. Women may be concentrated in work objectively assessed to be of less value than other pay grades where men predominate, but the difference in pay may be disproportionately higher than the difference in value. A comparison in terms of this disproportion is difficult to maintain within the distinct legal framework of equal pay. Such issues may, however, be progressed through collective bargaining.

 Indirect discrimination: the way in which the concept of indirect discrimination has been applied in equal pay law has posed difficulties for legal interpretation, since the EqPA does not clearly differentiated direct from indirect discrimination. This issue is discussed in more detail within the commentary on clause 64 above.

 Enforcement: since the problems of unequal pay are often embedded in collective pay structures and agreements, individual fault-based complaints will provide limited scope for addressing fundamental issues. Collective bargaining offers a more flexible solution, but relies on the existence of unionisation within the workplace and has exposed potential conflicts between the individual and collective interests concerned.216 As noted above, particular problems arise in the case of claims for work of equal value or work rated as equivalent since the forum of litigation may become unduly complex, both legally and evidentially, requiring detailed adversarial examination of job evaluation exercises (which may or may not be discriminatory) or expert witness testimony about the nature of different roles. Some legal and academic commentators call for a more radical overhaul of the legislation in favour of a system where, as Sandra Fredman puts it: “the process of achieving compliance is not hardwired to trigger resistance and defensiveness.” 217

4. Gender pay inequality

When the EqPA was passed in 1970, the overall mean pay gap between men and women stood at 37%. When the Act came into force in 1975, it had closed to 30%. Despite this and subsequent anti-discrimination legislation, women still earn less than men.

216 Discussed further in relation to clause 64 above. 217 Sandra Fedman, ‘Reforming Equal Pay Laws’, Industrial Law Journal, Vol 37, No. 3, September 2008, p 212

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The gender pay gap refers to the difference in average hourly earnings of men and women. The question of the causes of the gender pay gap is complex. In addition to pay discrimination, an important factor is occupational segregation with higher numbers of women concentrated in the lower paying jobs. Other factors include part-time working; job grading practices and appraisal systems. Women as a group are not homogenous in terms of their personal choices in balancing career and family life. Accordingly, the question of work-life balance is relevant and important to both studies of the causes of the gender pay gap and proposals to remedy the situation.

There is a debate about which measure of the pay gap is the more appropriate. The median figure is lower than the mean and in terms of tracking progress since the introduction of sex discrimination legislation in 1975 it is relevant that there were no median comparisons in 1975. The Office for National Statistics (ONS) prefers the median value on the grounds that the mean for earnings data is influenced less by extreme values, in view of the skewed distribution of earnings data. However, as Sandra Fredman notes in a recent law journal article “It is not clear, however, why the fact that high earners are predominantly male should not be reflected in the overall figure”.218 The following letter from 2006 by Jenny Watson, then Chair of the Equal Opportunities Commission, published in the Financial Times, outlines the debate:

Sir, The Office for National Statistics' 13 per cent pay gap figure referred to in your report ("Women close workforce gap but their pay is still only 87% of men's", March 24) applies only to full-time workers and uses the median rather than the mean figures. Together this paints a rosier picture of women's pay than is accurate.

First, the median figures ignore the extremes of low-paid women and high-paid men at each end of the spectrum - important considerations, and the reason most, including the Equal Opportunities Commission, look at the mean, which puts the full-time pay gap at 17 per cent. Furthermore, given that almost three- fifths of working mothers work part-time, and the majority of Britain's 7m part-time workers are women, a full understanding of the pay gap must also take into account the part-time figure, which is a massive 38.4 per cent - barely changed in 30 years. For the ONS to simply present "the pay gap" as 13 per cent is misleading.

The progress women have made in the workplace is certainly very welcome. But this progress comes despite a highly segregated workforce, with women clustered in low-paid jobs such as cleaning and catering and very few in better- paid jobs such as construction or engineering. Women are also largely absent from the boardroom and other positions of power: only 10.5 per cent of directors of FTSE 100 companies are women. Thirty years after the Sex Discrimination Act, both the government and employers need to address this urgently or our entire economy will continue to suffer from the waste of women's talents.219

For more information about pay statistics see chart 1 and table 6 of this Paper (p156-7).

218 Sandra Fedman, ‘Reforming Equal Pay Laws’, Industrial Law Journal, Vol 37, No. 3, September 2008, pp 193-218

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5. Equal pay audits or reviews

Some critics of current sex discrimination legislation say that it does not adequately address gender pay gaps because it focuses on individual complaints that even if successful do not benefit others facing similar inequality unless they also take legal action against their employer. Litigation consumes large amounts of time and money for both employers and individuals without a corresponding social gain. Successful equal pay claims can also have the unfortunate consequence of disrupting negotiated pay settlements. If remedies worked collectively, it is said, they might be more effective for both employers and employees. Employers are being asked by government to conduct equal pay audits that may unearth substantial actionable liabilities to female employees and so are unlikely to do so voluntarily.

In October 1999, the Equal Opportunities Commission (EOC) launched its “Valuing Women” campaign, designed to close the “20% gender pay gap”. As part of this campaign, the EOC set up an Equal Pay Task Force, led by employers from the public and private sectors. The Task Force published its report, Just Pay, on 27 February 2001.220 The report found that although the pay gap had narrowed from 31% in 1970 when the Equal Pay Act was passed to 18% in 1999, it had far from disappeared.

The Task Force found that three main factors contributed to the gender pay gap: discrimination in pay, occupational segregation and the unequal impact of women’s family responsibilities. The Task Force was principally concerned with discrimination, which, it believed, accounted for 25% to 50% of the pay gap. One of the most controversial was that employers should be required by statute to conduct equal pay reviews – sometimes known as equal pay audits:

Equal pay reviews

5.11 In Chapters 3 & 4 we noted the reluctance of both employers and trade unions to acknowledge that there is a problem and a disinclination to undertake equal pay reviews and act on their results. The Task Force considers that there will be little or no speedy progress in closing the pay gap unless employers take the essential first step of examining whether they have gender pay inequalities in their workplaces. The overwhelming evidence to date is that they will not do so voluntarily. Given this finding, we consider we have no alternative but to make a strong recommendation that employers be required to conduct equal pay reviews.

5.12 In saying this, we are keenly aware of the need to keep any additional requirements on business to an essential, simple minimum. Bearing in mind the principles of better regulation as laid down by the Better Regulation Task Force, we have developed a model which sets out what we consider to be the simplest possible approach to establishing prima facie gender pay inequalities and one which, we believe, should be required of all employers, small and large. This model is described in detail in Technical Annex 1: Equal Pay Reviews.

219 Jenny Watson, “Pay gap figure paints too rosy a picture”, Financial Times, 27 March 2006 220 Available on the Equal Pay Task Force website, http://tinyurl.com/22rcgr (Internet Archive, retrieved 23 August 2007)

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5.13 We are proposing a two-stage approach. Stage One is a simple, broad look at the pay of men and women in an organisation to establish, prima facie, whether there are gender pay inequalities. If the answer is ‘yes, there appear to be pay inequalities’, then employers will move to Stage Two which will provide them with more information on the nature, causes and extent of any gender pay inequalities and require employers to come up with an action plan for dealing with any which are unexplained. Both stages should be conducted in consultation, and if possible, agreement, with the trade unions or staff representatives and the results certified by the Chief Executive and published to the workforce. The diversity of approaches to pay determination amongst employers makes the specification of one simple approach to the Stage Two Equal Pay Review impossible, but we have indicated the key features which would need to be covered.

The Government did not accept this recommendation, preferring to encourage pay reviews on a voluntary basis. In a speech to the Industrial Society on 27 March 2001, Tessa Jowell, then an Employment Minister, set out the Government’s approach:

We will be encouraging employers to undertake and act on pay reviews on a voluntary basis, and to highlight the business benefits of them, we are introducing annual awards for employers. The Castle Awards - named after Baroness Barbara Castle who introduced the Equal Pay legislation in the 1970s - will recognise employers' excellence and good practice in promoting equality of opportunity and addressing the pay issue.221

In response to the Task Force report, Denise Kingsmill, Deputy Chairman of the Competition Commission, was appointed to lead the Women’s Employment and Pay Review in April 2001.222 This review proposed in December 2001 that, at least initially, there should be a voluntary approach to Equal Pay Reviews.

The creation of a Women and Work Commission to examine the problem of the gender pay gap and other issues affecting women’s employment was announced on 24 July 2004. The Commission was chaired by Baroness Prosser and its final report Shaping a Fairer Future, was published on 27 February 2006. The Commission specifically looked at the question of equal pay reviews but did not recommend that they be made compulsory. However, the terms of reference for the Commission required unanimity of all commissioners in making recommendations. The Bill’s sponsor, Harriet Harman, has expressed her commitment to equal pay reviews:

For me, achieving equal pay is a matter of principle. Unequal pay contributes to child poverty and an unequal division of labour in the home.

I believe we should set a target for ending unequal pay and introduce statutory gender pay audits for the private sector. I would extend the rights to flexible working to carers of children up to the age of 18 and carers of the elderly.

221 DfEE press release, 27 March 2001, It’s time for a fair deal for working women - Jowell 222 DfEE press release, 10 April 2001, Denise Kingsmill to take lead on Women’s Employment and Pay Review

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Unequal pay is a major contributor to the exclusion of men from the home as they work longer hours to maintain income levels. I would put a family focus at the heart of government with a Secretary of State for the Family to ensure policies were coordinated across departments in the interests of the family. Improved care for the elderly is one of my 6 campaign priorities. I would press for a doubling of the childcare budget as I believe this is the only way to meet the ambitious targets set by the government.

I recognise the contribution that flexible public services can make to modern family life and would continue to support their introduction with proper safeguards for the public service workers involved in delivery.223

6. Part time workers

An Equal Opportunities Commission report from 2005 stated that 78% of all part-time workers are women.224 This raises the possibility, subject to the facts of any particular case, that there will be indirect sex discrimination contrary to the Sex Discrimination Act 1975 if the terms and conditions of employment for part timers are materially worse than those of full-time employees who are mostly male.225 As noted above, sex discrimination claims may be made under the EqPA or the SDA. They may also be made under provisions of European law that are "directly applicable" and concern equal treatment for men and women. Since 1 July 2000 these provisions have been supplemented by the new rights for all part-time workers not to be treated less favourably than comparable full-time workers.

The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000, SI No.1551 is the main piece of legislation aimed at ensuring part-time workers have the same terms and conditions as full timers. These regulations implemented the Part Time Work Directive 97/81/EC. The Employment Protection (Part-time Employees) Regulations 1995, SI 1995/31, with effect from February 1995 abolished rules requiring employees to work more than a particular number of hours per week to qualify for employment law protection.

There is currently a substantial part-time gender pay gap. The part-time gender pay gap is based on the hourly wage of men working full-time and women working part-time, which is defined as being less than 30 hours a week. The part-time gender pay gap for 2008 was 39.9 per cent, as measured by the median. Using the mean, the part-time gender pay gap was 36.6 per cent.226

7. Occupational segregation

Part of the complexity of evaluating the impact of the EqPA lies in establishing the causes of the gender pay gap. According to a Government Equalities Office fact sheet:

223 EOC, Response to the EOC / Fawcett Society letter from deputy leadership candidate Harriet Harman, 18 June 2007 224 EOC, Part-time is no crime – so why the penalty? Interim report of the EOC’s investigation into flexible and part-time working, and questions for consultation, February 2005 225 See R v Secretary of State for Employment ex p EOC and Day 1994 ICR 317, HL 226 EHRC, Commission to undertake consultation into gender pay gap, 27 April 2009

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Occupation segregation is one of the main causes of the gender pay gap. Women’s employment is highly concentrated in certain occupations and those occupations which are female-dominated are often the lowest paid. In addition, women are still under- represented in the higher paid jobs within occupations – the “glass ceiling” effect.227

A Trade and Industry Select Committee report on the question of occupational segregation as a factor in the gender pay gap described this as follows:

Occupational segregation—the tendency for some jobs to be considered ‘men’s work’ and others ‘women’s work’—has a profound influence not only on the differing career prospects, pay and pensions of both sexes but also on the ability of industry and commerce to attract and retain employees, with adverse consequences for productivity and competitiveness.228

Professor Catherine Hakim distinguishes “vertical” from “horizontal” segregation:229

Segregation can be both horizontal and vertical and no single measure can capture both these aspects…

Horizontal job segregation exists when men and women are most commonly working in different types of occupation – for example, women are dressmakers and men tailors, women are cooks and men are carpenters. Vertical job segregation exists when men dominate the higher-grade and higher-paid occupations and jobs, or when men are promoted further up career ladders within occupations – for example, men are heads of schools while women are teachers.

In terms of the pay gap and segregation within occupations she states:

Studies of the pay gap between men and women within particular occupations indicate that vertical segregation accounts for virtually all the difference.

Her evaluation of the impact of equal opportunities legislation suggests that this impact was initially significant:

The sex discrimination legislation that took effect in 1975 proved to be a turning point for patters of occupational segregation and the pay gap in Britain. A study of occupational segregation over 1901 – 1971, the 70 years prior to the equal opportunities legislation, showed that at the national level there was little overall change: the decline in horizontal segregation was balanced by a marked increase in vertical segregation. The most notable change was that ‘exclusive’ occupations disappeared completely for women and were almost eliminated among men. Occupations that were 100% female employed 11% of all working women in 1901; by 1961 they had disappeared. In 1901 half (47%) of the male workforce was employed in 100% male occupations; by 1971 the proportion had fallen to only 14%. Trends in the 1970’s suggested that legislation had a dramatic and

227 GEO Fact sheet, Tackling the gender pay gap 228 House of Commons Trade and Industry Committee, Jobs for the girls: The effect of occupational segregation on the gender pay gap, Sixteenth Report of Session 2004–05, HC 300-I published on 7 April 2005 and Vol. 2 HC 300-II,19 May 2005: 229 Catherine Hakim, Key Issues in Women’s Work, Glasshouse Press, 2004; pages 48 - 49

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immediate impact on in lowering the overall level of occupational segregation, but that these gains were partially reversed in the deepening recession at the end of the decade. Since 1979, there has been a small but steady decline in horizontal occupational segregation. More important, the marked long term increase in vertical segregation in both white-collar and manual occupations was dramatically reversed after 1971.

8. Collective pay agreements: Single Status and Agenda for Change a. Single Status

The pay and re-grading process in local authorities is a national level agreement with trade unions known as ‘Single Status’. It is not an initiative of central government; although central government has attempted to help by allowing local authorities to borrow more to finance the liabilities that have emerged (called ‘capitalisation directions’).

The following is a selective chronology:

1997 Single Status Agreement signed by unions and local government employers

2004 National Joint Council (NJC) of employers and unions sets the timetable for the completion and implementation of pay and grading reviews to be completed by 31 March 2007.

2005 Unofficial strike action and protests about pay cuts

2006 The Treasury announces it will set a national capitalisation fund for local government liability costs on single status agreements, with a cap of £200m.

31 March 2007 Deadline for the completion of single status. Two-thirds of the 410 local authorities in England and Wales miss the deadline according to the Local Government Employers estimations. Costs predicted to escalate to £5bn in back-pay liabilities and future wage bills.

28 September 2007 Allocation of £500m equal pay capitalisation directions to 46 authorities in England giving them the financial flexibility to make one-off back-payments to thousands of employees - mostly women.

29 July 2008 The Court of Appeal rules in Redcar & Cleveland Borough Council v Bainbridge and others, and Middlesbrough Borough Council v Surtee and others that pay protection schemes are unlawful because they reinforced inequality among men and women in the workplace.

26 September 2008 A further 34 councils given capitalisation directions allowing them to raise £455m to meet equal pay liabilities. Government capitalisation measures cumulatively amount to over £1.1bn of

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capitalisation over a three-year period.

In 1997, national representatives of local government employers and recognised trade unions (Unison, TGWU and GMB) came together to sign the Single Status Agreement. The purpose of the agreement was to harmonise terms and conditions of employment for support staff, Administrative, Professional, Technical and Clerical (APT&C), and manual employees on a national basis and address inequalities in pay and conditions among local government workers, in particular between men and women.

The main principles of the Single Status Agreement are as follows:230

 Local authorities aim to provide training and development opportunities for the employees, in order to deliver high quality services to the local community.

 Equality was to be a core principle, which underpinned employment practice, employee relations and service delivery.

 There should be a flexible approach to providing services to the community, which met the needs of employees as well as employers.

 Local authorities, along with the signatory recognised trade unions, should aim to provide stable industrial relations, through consultation and negotiation.

The key features of the Single Status Agreement are as follows:

 One pay spine

 Harmonisation of conditions of service

 A standard working week of 37 hours or less

 Grading reviews based on equal pay

 Equal status for part-time employees

 A new deal on training and development

 Partnership working between management and trade unions

Job evaluation is considered to be an essential element in delivering Single Status. This ensures that all jobs within the scope of the “Green Book” are graded in accordance with a fair and non-discriminatory grading structure and provides the base information for an overhaul of existing pay and reward systems. It has been agreed by national representatives of both local government employers and local government trade unions (Unison, T&GWU and GMB) that all jobs covered by the National Agreement on Pay and Conditions of Service will be evaluated by this process. This includes all jobs for which there is no other national negotiating body.

230 The 1997 Single Status Agreement, undated

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The implementation of the agreement has been accompanied by various problems ranging from industrial action over pay cuts to equal pay litigation. For example, a number of bin men in Coventry took unofficial strike action over single status pay.231

An IDS Pay Report gave an updated account of local government services pay settlements in January 2007:232

The Current local government services pay deal, signed in 2004, established a deadline of 31 March 2007 for the completion of single status. As this date fast approaches, it looks very likely that fewer than half of councils will meet this deadline, their progress impeded by costs involved and lack of addition funding from central government. Failure to implement single status has left councils exposed to trade unions and ‘no-win, no-fee’ lawyers taking equal pay cases to employment tribunals, while local authorities, particularly in the North of England and Scotland, are facing huge costs following equal pay claims from female former manual workers for compensation in respect of previous inequalities.

A Written Answer on 5 February 2007 set out the Government’s plans to amend the Local Authorities (Capital Finance and Accounting) (England) Regulations 2003 to assist local authorities in meeting these liabilities:

Local Government: Pay

Mr. Mullin: To ask the Secretary of State for Communities and Local Government what plans she has for bringing forward legislation to deal with the impact of single status and equal pay claims on local government; and if she will make a statement. [118100]

Mr. Woolas: We have recently consulted on a proposed change to the Local Authorities (Capital Finance and Accounting) (England) Regulations 2003 which would allow local authorities greater flexibility in managing their financial liabilities relating to equal pay. This amendment would allow authorities to defer making financial provision for anticipated liabilities arising from equal pay back pay until the date on which the local authority must make the back payments rather than as soon as they can be reliably estimated, which accounting practices currently require. I am pleased to announce our intention to make this amendment in the current financial year. It is proposed that this new regulation would apply until the end of March 2011.233

Single Status and equal pay was the subject of an Adjournment Debate on 8 February 2007.234 Chris Mullin MP summarised the sequence of events as follows:

First, protracted negotiations between unions and local government employees, during which I am told that it was argued by some on the union side that the exercise would prove cost-neutral, resulted in the signing of the 1997 single status agreement. The agreement envisaged a harmonisation of terms and conditions for the majority of local government employees, accompanied by a huge job evaluation exercise intended to sweep away injustices and anomalies that had

231 “Council to force single status deal” Coventry Evening Telegraph, 1 February 2005 232 IDS Pay Report 969, January 2007, page 7 233 HC Deb 5 February 2007 c751W 234 HC Deb 8 February 2007 cc1091-1098

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accumulated over decades and replace them with a local government pay structure that reflected equal pay for work of equal value. The agreement was to be implemented by 31 March 2007—an honourable ambition.

As the deadline approached, an awful truth began to dawn: there would be losers as well as winners. Indeed, there would be more losers than anyone had anticipated, some of whom would lose out very badly indeed. In Sunderland, for example, bin men and road sweepers found themselves facing cuts of up to 20 per cent. in their take-home pay. Nursery nurses found that they would no longer be paid during holidays. The council’s hard-working gardeners found that they too were faced with big pay cuts. Needless to say, they were not happy. That gave rise to a new demand—that there should be no losers and that those faced with potentially catastrophic falls in income should be indefinitely protected.

Reluctantly, and at great expense, the local authority in Sunderland agreed to four years protection. At that point, the lawyers moved in. First, they threatened action against councils who delayed implementation. Then, they took action against unions that had settled for anything less than the maximum. Finally, once protection for the losers had been agreed, they started encouraging those who have already been substantially compensated to sue local authorities, arguing that they should be further compensated in order to maintain parity with those who had been temporarily protected.

One by one, Stefan Cross and his colleagues are unpicking agreements that everyone thought had been signed and sealed. I am told that the week before last, in Sunderland alone, more than 800 new claims were received, mainly from people who have already pocketed up to £9,000 a head in compensation, plus handsome pay rises, and who are now coming back for more. And so it goes on. No one knows where it will end, or how. As if that situation were not dire enough, somewhere along the line an employment tribunal decreed not merely that injustices should be put right and anomalies rectified, but that those found to have lost out should be compensated six years in arrears—as opposed to the two that had been the norm up to that time—thereby adding another huge sum to the local authority pay bills.

The response from local authorities has varied. Some, like Sunderland, bit the bullet and sought to implement the agreement as swiftly and fairly as possible. The cost to local taxpayers so far in Sunderland is £15 million and could be tens of millions more if the worst comes to the worst. Sunderland has been advised that, on a worst case scenario, costs could touch £50 million. Some other local authorities have tended to bury their heads in the sand in the hope that it will all go away. One north-east local authority initially adopted a policy of paying out only in response to successful tribunal claims. So far it has shelled out nearly as much as Sunderland on a much smaller number of claims.

Across the north-east, the total cost of claims could be as high as £300 million, but it is not just a north-east problem—far from it. The west midlands is said to be facing claims of nearly £1 billion, the north-west £740 million, London £123 million, and the south-west £100 million. Nationwide, the bill is estimated to be as high as £2.7 billion, but could eventually be higher. What is to be done? Emphatically, I am not suggesting that the Chancellor be asked to write out a cheque. No sensible person would do that. It has been suggested that the cost could be capitalised and paid off over 40 or 50 years, but that is a very expensive option and, in any case, insufficient to deal with a problem of this magnitude.

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My hon. Friend the Minister has recently announced a modest change to local authority accounting rules that would allow local authorities to defer making provision for equal pay liabilities. That is welcome but, as I am sure that he understands, it does not begin to address the magnitude of the problem. It has also been suggested and I understand recently agreed by Ministers that, at least as far as school caretakers and dinner ladies are concerned, the cost could come from the substantial surpluses that some schools retain. That may help some authorities, but it will inevitably give rise to the charge of unfairness, because some schools have surpluses and others do not. In any case, the majority of those involved are not school employees.

In September 2007, the Government announced support for councils to help speed up meeting the equal pay commitments, particularly relating to back pay:

The Government has moved to help councils speed up equal pay for women working in local government by allowing significant amounts of equal pay back pay to be treated as capital expenditure. This enables them to spread the cost or fund from receipts.

Communities and Local government announced today (Friday 28 September) the allocation of £500m equal pay capitalisation directions to 46 authorities in England giving them the financial flexibility to make one-off back-payments to thousands of employees - mostly women.

The Department has also responded swiftly to requests from local government by announcing decisions about the amounts allocated early in the financial year to make it easier for local authorities to manage their budgets.

Local Government Minister John Healey said:

"Local authorities have to settle their equal pay obligations but we recognise the position for many is tough and I want to do what I can to give them the financial flexibility they need to implement fair pay systems. However, this is not a new pressure and I would like to see some authorities doing more to tackle the issue in a pro-active and affordable manner.

"We have already amended the regulations on capital finance to improve the process of identifying and dealing with any equal pay liabilities. Today's allocations go a step further by allowing councils to treat significant amounts of back-pay costs in 2007/08 as capital. This gives them the flexibility they need to get on and work with unions representing their staff to ensure people get the benefit of equal pay to which they are entitled."235

A PQ from June 2008 suggested that some councils were choosing to reduce wages rather than increase the wages of women:

Lynne Featherstone (Hornsey and Wood Green) (LD): Does the Minister share my concern about reports that Nottingham city council is reducing the wages of

235 Department for Communities and Local Government, Government gives councils more financial flexibility on equal pay, 28 September 2008

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1,400 of its employees to achieve equal pay, rather than increasing the salary of the women? Should not equal pay mean levelling up, not levelling down?

Barbara Follett: Obviously it should, but local authorities are responsible for addressing their equal pay issues and we recognise that that is a difficult and costly pressure for many of them. However, I am glad to say that progress is being made. The latest figures show that 47 per cent. of councils have either implemented or completed their pay reviews with only 3 per cent. yet to start them. […]236

An article in Personnel Today reports that the negotiation and implementation of equal pay deals has been accompanied by further legal problems:

Thousands of new equal pay claims could be lodged against local authorities and the NHS in addition to those already in the system, thanks to a landmark court ruling.

In the consolidated cases of Redcar & Cleveland Borough Council v Bainbridge and others, and Middlesbrough Borough Council v Surtee and others, the Court of Appeal ruled this morning that both councils' pay protection schemes were unlawful because they reinforced inequality among men and women in the workplace.

A judge ruled that transitional arrangements protecting male workers' pay – even while measures were put in place to bring comparable female workers' pay up to the same level – were discriminatory.

In this case, Bainbridge and her colleagues argued not that pay protection was wrong, but that they should also have benefited from it, since, had they have been paid equally to men in the first place, they too would have suffered a loss of income and would have been entitled to pay protection.

Redcar & Cleveland and Middlesbrough Councils argued unsuccessfully that they should be allowed to provide pay protection to their male employees regardless of the discriminatory background to the payments. […]

Earlier this month the Appeal Court also ruled that the GMB union indirectly discriminated against female workers at Middlesbrough Borough Council when it prioritised pay protection for men over obtaining back-pay for female members in the earlier stages of the equal pay saga. Lawyers said the ruling meant such claims were less likely to be settled out of court.237

In September 2008 Local Government Minister John Healey announced further support to councils to help meet equal pay liabilities:

Mr Healey gave the green light to 34 councils to raise £455m to meet equal pay liabilities, either by borrowing against or selling assets - known as capitalisation. This will enable them to make one-off back - payments to thousands of employees - mostly women on low pay.

The Government has acted to help councils make equal pay settlements, approving over £1.1bn of capitalisation over a three-year period.

236 HC Deb, 19 June 2008 c1071

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This has been widely welcomed by local government and trades unions as practical support that enabled councils to meet their commitments as employers. Evidence suggests progress is speeding up as a result - the Local Government Employers report that in July 2007 only around two in five of authorities had either implemented or completed their local pay reviews, but by the end of July this year it had reached three in five.238

Since this announcement some councils have expressed further concern about how meeting the equal pay commitment may result in increased council tax or cut-backs on capital projects:

TAXPAYERS could face years of higher taxes as the region was landed with a £150m equal pay bill.

Local authorities are bracing themselves for a big hit on their multi-million pound reserves – the interest from which is vital to keep council tax down.

And with some of the liabilities faced by the councils dwarfing their cash pots, money direct from taxpayers could be required to pay the bill.

Other unpalatable options in front of moneymen are selling off land and buildings or going into debt – North Tyneside has already been given the right to borrow £15m.

The Government has now offered councils the chance to sell assets such as land or buildings to raise money, or enter into yet more debt to pay off the claims.

Many North East authorities have already been forced to pay compensation to women employees previously made to accept lower wages than male counterparts.

Northumberland Council alone faces an overall bill of up to £50m.

If it loses ongoing legal action it will have to wipe out its reserves of £27m and would see capital projects such as new road building grind to a halt.

And city leaders know if ongoing legal action goes against them they will have to look at increasing future council tax rates and cutting services.239

9. Agenda for Change

Agenda for Change followed negotiations and an agreement between the UK Health Departments, NHS Confederation, Unions and Professional Bodies to modernise the NHS pay system. The policy applies to all directly employed NHS staff, except very senior managers and those covered by the Doctors’ and Dentists’ Pay Review Body. It is intended to introduce a more coherent and transparent system. It involves a new pay band structure into which the various NHS staff will be slotted following a job evaluation.

237 Personnel Today, Equal pay court ruling opens way to more local government claims, 29 July 2008 238 Department for Communities and Local Government, Healey announces support for councils to deliver equal pay, 26 September 2008 239 Journal Live, Council equal pay bill set to raise council tax, 2 October 2008

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In October, the Department of Health published a booklet for NHS staff, Agenda for Change: What will it mean for you? 240

Unions have called on the Government to provide funding for equal pay in local government. They have argued that in the NHS, the “Agenda for Change” pay and grading structure has been funded by central government, is a national pay framework and is accompanied by a knowledge and skills framework which has received significant investment. There is no parallel strategy to address the gender pay gap in local government.241

There have been a large number of equal pay claims regarding pay in the public sector which have been successfully litigated, including the largest ever equal pay settlement in the UK which was for NHS nurses at North Cumbria Acute NHS Trust.242

The case of Wilson v North Cumbria Acute NHS Trust was settled in Carlisle on 15 March 2005 after 8 years of litigation.243 This case involved a group of women who claimed that the work that they did was of equal value to the work undertaken by various male employees.244 The women involved were employed mainly as nurses, although some were employed in clerical roles. The men with whom they were comparing themselves in terms of value of work were employed for example as craftsmen and joiners, building labourers and maintenance assistants. The types of work involved were different but after a long investigation, independent equal pay experts, whose evidence would have been compelling, concluded that the work was nonetheless of equal value. Since this case was settled it did not create binding legal authority, but rather concerned factual and evidential matters as to whether the appropriate comparators were being used in that case. It is not clear what effect this will have on other similar cases.

C. Sex discrimination in private clubs

1. Sex Discrimination Act

It is still lawful for a club which is genuinely private to have discriminatory membership entitlements and prices between men and women. Although the Sex Discrimination Act 1975 (SDA) outlaws most forms of sex discrimination in the provision of goods, services and facilities it is still legal for genuinely private clubs to make different facilities available for men and women. Various Private Members Bills have attempted to extend SDA to cover private clubs. None of these Bills succeeded in securing sufficient parliamentary time to become law. The consultation response announced that the Bill will make changes to discrimination law in this area:

240 http://collections.europarchive.org/tna/20041011233627/http://www.dh.gov.uk/assetRoot/04/09/08/5 9/04090859.pdf 241 Helene Mulholland, “Unequal pay could cost councils millions”, The Guardian (Society) 20 June 2005: http://society.guardian.co.uk/localgovt/news/0,8368,1510752,00.html 242 “Struggle to win women equal pay turns sour” Sunday Times 20 February 2005 243 “Struggle to win women equal pay turns sour” Sunday Times 20 February 2005 244 “Embarrassment of riches”, The Guardian, 18 February 2006:

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22. We will make it unlawful for mixed-sex private clubs to discriminate between men and women members so that people are not treated as second class simply because of their gender. We will also outlaw discrimination by private clubs based on religion or belief, pregnancy or maternity, gender reassignment and age. We will also outlaw discrimination by private clubs against guests on any of these grounds.

23. But we will not extend these changes to single-sex clubs (e.g. for sport) and there will be no change in the position that private clubs can limit themselves, e.g. to members of a particular religion or belief, pregnant women and new mothers, transsexual people and people of particular ages.245

Section 29 of the SDA currently reads (underlining added):

29. Discrimination in provision of goods, facilities or services

(1) It is unlawful for any person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to discriminate against a woman who seeks to obtain or use those goods, facilities or services –

(a) by refusing or deliberately omitting to provide her with any of them, or (b) by refusing or deliberately omitting to provide her with goods, facilities or services of the like quality, in the like manner and on the like terms as are normal in his case in relation to male members of the public or (where she belongs to a section of the public) to male members of that section.

(2) The following are examples of the facilities and services mentioned in subsection (1) –

(a) access to and use of any place which members of the public or a section of the public are permitted to enter; (b) accommodation in a hotel, boarding house or other similar establishment; (c) facilities by way of banking or insurance or for grants, loans, credit or finance; (d) facilities for education; (e) facilities for entertainment, recreation or refreshment; (f) facilities for transport or travel; (g) the services of any profession or trade, or any local or other public authority.

(3) For the avoidance of doubt it is hereby declared that where a particular skill is commonly exercised in a different way for men and for women it does not contravene subsection (1) for a person who does not normally exercise it for women to insist on exercising it for a woman only in accordance with his normal practice or, if he reasonably considers it impracticable to do that in her case, to refuse or deliberately omit to exercise it.

A section on the Equality and Human Rights Commission website explains this further:

http://www.guardian.co.uk/gender/story/0,,1711137,00.html 245 GEO, The Equality Bill – Government Response To The Consultation, July 2008, Cm 7454, page 8

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Private members’ clubs

When services are provided to you by a private members’ club of which you are a member, the club is not bound by the Sex Discrimination Act as a service provider and can lawfully discriminate on grounds of gender. However, private clubs must still obey the Sex Discrimination Act in the way they treat their employees.

The rules and practices of private members' clubs have over the years resulted in many complaints of discrimination. The main issue has been the different classes of membership that are open to one sex only.

Example:

A golf club restricts “full membership” to men. Only full members have the right to set the rules of the club and have full access to the club. “Associate membership” is restricted to women and has reduced rights and limited access to the club. As long as the club is genuinely private, this would be lawful.246

2. Council Directive 2004/113/EC

Under the European Gender Directive 2004/113/EC clubs that admit both men and women but then discriminate against one sex are subject to anti-discrimination legislation.247 However, Article 16 of the Directive (added later) provides some residual possibility that single sex membership clubs will be able to claim a legitimate aim on the basis of freedom of association.248 Article 16 reads as follows:

Differences in treatment may be accepted only if they are justified by a legitimate aim. A legitimate aim may, for example, be the protection of victims of sex-related violence (in cases such as the establishment of single-sex shelters), reasons of privacy and decency (in cases such as the provision of accommodation by a person in a part of that person's home), the promotion of gender equality or of the interests of men or women (for example single-sex voluntary bodies), the freedom of association (in cases of membership of single-sex private clubs), and the organisation of sporting activities (for example single-sex sports events). Any limitation should nevertheless be appropriate and necessary in accordance with the criteria derived from case law of the Court of Justice of the European Communities.

Consultation on implementation of the Directive ran alongside consultation on the proposed Single Equality Bill by the Discrimination Law Review which was announced on 25 February 2005. 249 A Press Release at that time explained that

the Discrimination Law Review will assess how our anti-discrimination legislation can be modernised to fit the needs of Britain in the 21st Century. This work will consider the approaches that are effective in eradicating remaining discrimination

246 Equality and Human Rights Commission website, Sex discrimination as a consumer: your rights [on 27 February 2009] 247 Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services 248 See also David Rennie “Europe blasts away traditional sex discrimination at golf clubs”, The Daily Telegraph, 5 January 2006, p9 249 Discrimination Law Review terms of reference

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but avoid imposing unnecessary, bureaucratic burdens on business and public services. 250

However, since proposals for the Single Equality Bill would take longer than the deadline for implementation of the Directive, the Government are implementing it using regulation making powers under the European Communities Act 1972. Implementation will require amendment to some existing provisions in the Sex Discrimination Act 1975. The draft Sex Discrimination Act 1975 (Amendment) Regulations 2007 were laid before Parliament on 28 November but the Government did not take them forward at that time. These would have given effect to the EU Gender Directive in Great Britain only. Instead, they were replaced on 6 March 2008 by the draft Sex Discrimination (Amendment of Legislation) Regulations 2008. The Sex Discrimination (Amendment of Legislation) Regulations 2008 came into force on 6 April 2009. The effect of the new regulations on the single sex exceptions was explained further in guidance from the Government Equality Office:

Before 6 April, the SDA and SDO [Sex Discrimination (Northern Ireland) Order 1976] included a small number of exceptions that allow facilities or services to be provided on a single-sex basis. The Directive does allow different treatment of women and men in two respects. Firstly, where there is a legitimate aim and the different treatment is a proportionate means of achieving that aim. And secondly, where the different treatment has the aim of preventing or compensating for disadvantages linked to sex (positive action). Where these exceptions as drafted ran the risk of not complying fully with the Directive, the Regulations have tightened the drafting so that they are compliant.251

Although it was expected that the new regulations would tighten up the rules for discrimination in private members clubs for when they are open to both sexes, they do not appear to have done so.252 These changes will be made by the Bill.

3. Working Men's Club and Institute Union (CIU)

The Working Men's Club and Institute Union (CIU) is a voluntary association of private members' clubs in Great Britain, with about 3,000 associate clubs. Most social clubs are affiliated to the CIU. They do not have to be Working Men's Clubs, although most are. There are many Village Clubs, Royal British Legions, Labour Clubs and various other clubs involved. A member of one CIU affiliated club is entitled to use the facilities of all other CIU clubs, although they will only be entitled to vote in committee elections in clubs where they are full members. The position of women in the Union has been a constant source of debate, with motions to support allowing the use of the associate card not gaining enough support to change the constitution in this respect. It appears that the CIU is not a single sex club organisation and so is likely to be affected by the new laws when they come into force. The position of women in respect of the CIU was outlined by Parmjit Dhanda MP when introducing one of the various Private Members Bills that have sought to address this matter:

250 Joint DTI and Cabinet Office Release, Review of causes of discrimination announced, 25 February 2005: 251 Government Equalities Office Factsheet, Sex Discrimination (Amendment of Legislation) Regulations 2008 – SI 2008/963, April 2008 252 See Equality bill set to curb golf club discrimination, The Guardian, 12 June 2007

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The Club and Institute Union, which represents almost 2,700 working men's clubs in Britain, reports that some 60 per cent. of affiliated mixed-sex clubs still deny female members full rights. The CIU's constitution does not permit pass cards to be issued to women members. The cards are a means of identification, allowing a member of one CIU club to visit another club and enjoy, as a guest, almost the same level of membership as they hold in their own club. While the CIU has tried on five separate occasions to abolish that rule, it has yet to achieve the two-thirds majority necessary to do so. I hope that the Bill will help it along the way. The concern is that such outdated attitudes are leading to members deserting many of those clubs.253

4. Race Relations Act 1976

A private club, does not provide “goods, facilities or services to the public or a section of the public”, if the rules of the club provide for nomination and personal selection and there is nothing to indicate that those rules are a mere formality. This is based on a Race Relations Act case, Charter v Race Relations Board.254 A textbook on the Race Relations Act 1976 explains:

Clubs, associations and other private organisations

Subsection 1 of section 20 limits the operation of the section to the provision of goods, facilities and services "to the public or a section of the public." These words have been the subject of much judicial scrutiny.

The facts in Panama (Piccadilly) Ltd. v Newberry showed that any person was admitted to the club which featured in that case if they merely filled in a form and paid £1.5.0d. The Court of Appeal held that the club's so-called "members" were, in reality, nothing more than a section of the public.

In order to exclude genuine clubs, the words "to the public or a section of the public" were adopted in the 1968 Act. The phrase was considered by the House of Lords in Charter v Race Relations Board which involved alleged discrimination by a local conservative club. Their lordships overruled the decision of the Court of Appeal and decided that the words "the public or a section of the public" were words of limitation as "public" must be construed in contrast to "private". The Judicial Committee went on to hold, by a majority, that when the rules of the club in question provided for nomination and personal selection, and when there was nothing to indicate that those rules were mere formalities, a club was to be considered as private and outside the terms of section 2 of the 1968 Act. Lord Reid said:'

But a clear dividing line does emerge if entry to a club is no more than a formality. This may be because the club rules do not provide for any true selection, or because, in practice, the rules are disregarded.

Charter's case was followed in Dockers' Labour Club and Institute Ltd. v Race Relations Board which involved discrimination by a particular working men's club

253 HC Deb 4 February 2003 c149 254 [1973] AC 868

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against a man who was an associate of the Union of Working Men's Clubs. In the course of the hearing, it was said that there were some four thousand working men's clubs with a total membership of three-and-a-half million people and about a million associates. The complainant entered the club's premises as an associate, and was asked to leave because of his colour.

The club concerned had a selection process, but the question was whether, by admitting the associates to the facilities of the club, the club went out of the private sphere and into the public sphere. Reversing the Court of Appeal decision, the House of Lords held that the club was operating in its private sphere, as each associate had been the subject of personal selection by a club in the union, and the proportion of associates entering the particular premises was not such as to alter the private character of the club. 255

Following these cases interpreting the Race Relations Act 1968, the Race Relations Act 1976, the current statute, makes special provision to prohibit racial discrimination in private clubs with 25 or more members. Section 25 of the 1976 Act makes it unlawful for such a club to discriminate in the terms on which it is prepared to admit someone to membership or by refusing or deliberately omitting to accept their application for membership. Section 26 makes an exception for associations whose main object is to enable the benefits of membership to be enjoyed by a particular racial group defined otherwise than by reference to colour. There is no equivalent provision in the SDA.

5. Equal Opportunities Commission proposal 1998

The Equal Opportunities Commission (EOC) received many complaints from women who were admitted to membership of clubs but then excluded from certain facilities and had been arguing for a change in the law for some time.256 Examples include men only snooker rooms and prohibitions on women using a golf course at weekends or in the evenings. The Commission published a consultation paper on changes to the legislation in January 1998.257 This recommended the merging of the SDA and EqPA together with other relevant legislation into a single Sex Equality Act. It proposed that this Act should outlaw discrimination of the kind described.

The Government’s initial response appeared to be a preference for voluntary action. There was a short exchange in the Lords on the issue on 16 January 2001, following the decision of the Carlton Club not to grant women members equal access despite support for this change by William Hague, then leader of the Conservative party.258 Baroness Blackstone – then Minister for State at the Department for Education and Employment – stated that “the government view is that this is a matter for voluntary change.” 259

255 D. J. Walker and M. J. Redman, Racial Discrimination: a simple guide to the provisions of the Race Relations Act 1976, pp 61-62 256 The EOC ceased operation in October 2007 to be replaced by the Equality and Human Rights Commission (EHRC, sometimes referred to as “Eric”) 257 Equal Opportunities Commission, Equality in the 21st Century: a New Approach, January 1998 258 “Hague blow as Carlton club keeps women out”, Guardian, 30 November 2000 259 HL Deb 16 January 2001 cc 1032-1034

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6. Private Members’ Bills a. Sex Discrimination (Amendment) Bill 1999-2000

Robert Walter, the Conservative MP for North Dorset, won eleventh place in the ballot for Private Members’ Bills on 25 November 1999 and introduced a Bill to outlaw sex discrimination in private clubs which admit both sexes to a membership category. Its long title was:

A Bill to amend the Sex Discrimination Act 1975; to make provision with respect to discrimination concerning the provision of goods, facilities, services and access to governance by private member clubs; and to continue to permit wholly single- sex clubs and sporting events

The Sex Discrimination (Amendment) Bill 1999-2000 was presented on 15 December 1999 and was down to have its second reading on 11 February 2000.260 However, there was insufficient time for debate, and although Mr Walter was able to utter a sentence or two, no progress was made. b. Sex Discrimination (Amendment) Bills 2001-02

On 11 December 2001, Robert Walter was given leave to introduce a virtually identical Bill under the Ten-Minute Rule.261 This time he was able to make a longer speech in support.262 He also raised the issue in a general debate on women and equality on 14 March 2002.263

Lord Faulkner of Worcester, a Labour peer, introduced the same Bill in the Lords on 1 March 2002.264 This Bill received a second reading in the Lords on 13 March 2002,265 and went on to pass all its Lords stages with some amendments.266 Nearly all the peers who spoke in the second reading debate supported the Bill except Lord Borrie, a Labour peer, who was “not at all keen on using the law to achieve” the Bill’s aims.267 Baroness Buscombe, the Conservative spokesperson on Home Office and Legal Affairs, was also “reticent about succumbing to legislation on this issue”.268

Baroness Farrington of Ribbleton spoke for the Government. She assured the House of Government support for the principle of the Bill but expressed doubts about the detail and the availability of Government time. She also recalled that the Government’s initial view had favoured voluntary action. 269 Press articles around this time suggested that the

260 Bill 22 1999-2000 261 Sex Discrimination (Amendment) Bill, Bill 66 of 2001-02 262 HC Deb 11 December 2001, cc736-738 263 HC Deb 14 March 2002, cc 1086-1088 264 Sex Discrimination (Amendment) (No 2) Bill [HL], HL Bill 58 of 2001-02 265 HL Deb 13 March 2002, cc 914-936 266 Committee stage, HL Deb 8 May 2002, cc 1229-1256; Report stage, HL Deb 22 May 2002, cc 848-863 267 HL Deb 13 March 2002, c 924 268 Ibid, c 931 269 HL Deb 13 March 2002, cc 933-935

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Government did intend to make government time available for the Bill. 270 In the Commons debate on women and equality on 14 March 2002, Barbara Roche, Minister of State at the Cabinet Office, said:

We support the Bill in principle, and I was delighted that the House of Lords gave the legislation a Second Reading. I am sure that the business managers will have noted the strength of feeling.271

However, a Government statement on this issue repeated the line that there could be no commitment to Parliamentary time and the Bill failed to become law. 272 c. Sex Discrimination (Clubs and Other Private Associations) Bill 2004

The Sex Discrimination (Clubs and Other Private Associations) Bill, was introduced in the House of Commons on 9 March 2004 by David Wright MP. It had its second reading and was committed to Standing Committee C on 14 May. The Bill, which applied in England, Scotland and Wales, addressed unequal treatment of members, associates and guests of mixed-sex private clubs with 25 or more members. There were also limited provisions covering single-sex private clubs with 25 or more members. It proposed to make it unlawful to discriminate in circumstances where male and female guests are attending occasions to which both sexes are invited. Despite poor prospects for the Bill becoming law, it made it to second reading and was committed to Standing Committee on 14 June 2004. In addition, a detailed Regulatory Impact Assessment was published by the Government on 11 May 2004. This indicated that primary legislation covering mixed sex private clubs is the Government’s preferred option. It failed get sufficient time to become law, notwithstanding government support.

D. Mandatory retirement

1. Current position

The EHRC is calling for the Bill to abolish mandatory retirement.273 At present, employers are within their rights to lay down mandatory retirement ages in contracts of employment. Under age discrimination legislation which came into force in 2006 compulsory retirement ages are unlawful unless they can be objectively justified. However, this is subject to a national default retirement age of 65 which allows mandatory retirement for those over this age (or the employer’s normal retirement age) as long as employees are given the opportunity to exercise their right to request working beyond retirement age. This exception is preserved in Schedule 9, part 2, paragraph 8. The decision to have a national default retirement age is due to be reviewed in 2011.

270 “Ministers back equal club rights for women”, Guardian, 13 March 2002; “Men club together over new threat of female equality”, Financial Times, 14 March 2002 271 HC Deb 14 March 2002, c 1114 272 HC Deb 13 June 2002, cc 995-996 273 EHRC, Parliamentary briefing for Commons Second Reading May 2009

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It is important to stress that the “retirement age” and the “pension age” are not synonymous. The retirement age is the age at which one can be required to leave work. The pension age is that age at which one can start to draw an unreduced pension.

A person who is dismissed because they have reached retirement age may wish to claim unfair dismissal under section 94 of the Employment Rights Act 1996. There is also the possibility of a claim under sex discrimination provisions. For example, a woman dismissed from a job because she had reached the age of 60 might be able to claim sex discrimination or unfair dismissal if a man in a similar post would not be compulsorily retired until a later age.

Normal retirement age is not the same as state pension age, which is currently 65 for men and 60 for women. The state pension age is being equalised at 65 for both men and women over the period 2010 – 2020. This clearly presents problems where men (and eventually women) can be compelled to retire at 60 but not qualify for a state pension until they are 65.

It was the Sex Discrimination Act 1986 which introduced equal retirement ages for men and women in employment. The Act responded to the European Court's ruling in the Helen Marshall v Southampton and South-West Hampshire Area Health Authority (No 1) case.274 In this case, the Court ruled that the Health Authority had breached the Equal Treatment Directive by requiring Helen Marshall to retire at 62 when men were not required to retire until the age of 65. Although the ruling bore directly only on public employers, the Government decided to introduce legislation requiring all employers to set equal compulsory retirement ages for men and women.

The Employment Equality (Age) Regulations 2006 were made on the 3 April 2006 and came into force on 1 October 2006.275 They arise out of the need to implement the EC Directive establishing a general framework for equal treatment in employment and occupation (2000/78/EC) adopted on 27 November 2000. The purpose of this directive, commonly called the “Employment Directive” or “Framework Employment Directive”, is to prohibit discrimination in employment on the grounds of religion or belief, disability, age or sexual orientation. There was a requirement for the age discrimination strand of the directive to be implemented by December 2006.276 The Government, through the DTI (now the Department for Business, Enterprise and Regulatory Reform), published a consultation document in July 2003: Equality and Diversity: Age Matters. A consultation on the draft Employment Equality (Age) Regulations 2006 was published in July 2005: Equality and Diversity: Coming of Age. Guidance on the regulations for both employers and individuals has been published by ACAS.277

274 (1986) ECR 723-751 275 Employment Equality (Age) Regulations 2006 SI No.1031 276 The provisions covering religion or belief and sexual orientation are included in separate regulations (The Employment Equality (Religion or Belief) Regulations 2003 SI No.1660 and the Employment Equality (Sexual Orientation) Regulations 2003 SI No.1661). 277 Acas, Age and the Workplace

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2. Policy development

A Ministerial Statement on 14 December 2004 by Patricia Hewitt confirmed the Government’s final decision in favour of a national default retirement age of 65 together with a right for employees to request working beyond the set retirement age. At that time it was expected that the decision to have a national default retirement age would be reviewed after five years. That review is now expected by 2011. The statement announced that mandatory retirement would be unlawful below 65 unless the employer can objectively justify their action:278

In setting the default age, we have taken careful note of a number of representations we received in the course of consultations which made it clear that significant numbers of employers use a set retirement age as a necessary part of their workforce planning. While an increasing number of employers are able to organise their business around the best practice of having no set retirement age for all or particular groups of their workforce, some nevertheless still rely on it heavily.

Furthermore, our consultations have demonstrated that if all employers only had the option of individually justified retirement ages at the time the legislation was introduced, this could risk adverse consequences for occupational pension schemes and other work related benefits. Some employers would instead simply reduce or remove benefits they offer to employees to offset the increase in costs.

Until now, companies have been able to set the age at which their employees retire without any need to justify their choice. So employees may have had to retire at age 60 or even younger, whether or not they wished to continue working. Currently only 30 per cent. of people are in employment by the age of 65 and a major part of the response to the ageing society will be for more people to choose to work to that age.

Following the implementation of this decision, employers will only be able to set their own retirement age for all or some of their workforce below 65 where they can objectively justify this. They would be subject to challenge and would have to show that it was appropriate and necessary to do so.

The default age is not a compulsory retirement age. Employees will be able to work beyond that age wherever they and their employers agree. Indeed, the Government welcome such agreement, and through the right to request is actively encouraging it.

This decision on retirement age has no direct implications for occupational or state pension arrangements. The Government have emphasised that it has no plans to change the state pension age once it has been equalised for men and women at 65, and we shall continue to provide for pension schemes to set normal retirement ages if they need to.

The default age will be accompanied by a right for employees who want to continue to work beyond the default age or their employer's own justified retirement age to have their request considered seriously by their employer. This

278 HC Deb 14 December 2004 cc127 - 130WS

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right will follow the model of the right to request flexible working for parents with young children, where it has been successful in changing the culture towards more family friendly working. This policy will ensure that employers listen to employees who want to keep working and think about whether they can agree. In doing so, it will help promote a culture change including on workforce planning and the design of employee benefits, and move towards a position where fixed retirement ages are relied on only where they can be objectively justified by the employer.

We will monitor the impact of the default age from the outset. Five years from implementation we will subject to formal review the question of whether this remains appropriate. The review will be firmly grounded in evidence, and amongst other things it will look at relevant data on trends in life expectancy; the number of individuals working beyond 65; and the impact of the regulations on business, including the evolution of business practice with respect to the degree of reliance on retirement ages for workforce planning. If at the point of the review the evidence suggested that we no longer needed the default retirement age at 65, we would abolish it.

3. Procedures

The explanatory memorandum to the regulations describe the procedure and notification periods.279 Schedule 6 of the regulations contains the procedures that need to be followed by an employer in dismissing an employee. These involve a notification period and the right to request working beyond retirement. The employer must convene a meeting with the employee to discuss this request and; if the resulting decision is appealed, an appeal meeting to further discuss the request. The employer, provided they follow the procedure, is not obliged to give reasons for refusal at any stage of the process. The DTI provided a summary of the procedure:

Employers should notify employees of their intended retirement date not more than one year, but no less than six months in advance. If they do not, the employee may be liable for compensation.

If the employer fails to notify the employee six months in advance they will have an ongoing duty to do so, up to two weeks before the intended retirement date. Failure to notify up to two weeks before the intended retirement date will make the dismissal automatically unfair.

If an employee has been properly notified of their retirement they must make their request to continue working at least three months before the proposed retirement date.

The employer must consider all requests not to be retired. Where possible the employer must meet the employee to discuss their request and must inform them of their decision as soon as is reasonable.

The employee may appeal against the decision. If this happens an appeal meeting should be held as soon as is reasonable.

279 Explanatory Memorandum to The Employment Equality (Age) Regulations 2006 SI No.1031

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If it’s not possible to hold an appeal meeting within a reasonable period, the employer can consider the request without a meeting, as long as the employee‘s case for continuing to work is taken into account.

An appeal can be made if:

• the employer refuses the request in its entirety; or, • if the employer accepts it, but decides to continue employment for a shorter period than the employee requested.

This procedure must be repeated each time an individual nears the agreed extended point for retirement, unless the agreed extended period is less than six months.280

It is important to note that there is nothing in the regulations that compels the employer to retire employees after they have reached the age of 65. Government departments have been advised by the Cabinet Office not to introduce a default retirement age. Notwithstanding this, many departments still retain mandatory retirement at 65 or their staff.

4. Legal challenge

The default retirement age is currently being challenged in a judicial review. The case was brought by the National Council on Ageing, which operates under the names Heyday and Age Concern. It brought a case in the High Court claiming that the default retirement age in the regulations is incompatible with the EC Directive. The challenge focussed on that aspect of the regulations (in particular regulation 30) on the grounds that it contravenes the Framework Employment Directive because it leaves people over age 65 without the right to choose to continue working.281 The matter which was heard on 6 December 2006 was referred by the High Court to the European Court of Justice (ECJ) for ruling on compatibility with the Directive. The ECJ delivered its final ruling on 5 March 2009. The next stage will be the final determination by the UK High Court in light of the principles clarified by the ECJ.

Given the legal challenge, some employees who have been forced to retire were advised to take out prospective tribunal claims in the event that the case returned a favourable ruling. The Employment Appeal Tribunal ruled in Johns v Solent SD Ltd that such claims could be received by tribunals and then put on hold pending the decision of the ECJ.282

On 23 September 2008, the Advocate General Jan Marzak handed down an Opinion (prior to final judgement of the Court) stating that the UK will not have broken EU law if it could justify allowing employers to insist on compulsory retirement provided it had a

280 DTI, Age Legislation fact sheet No.7, March 2006 281 Equal Opportunities Review, In the News, EOR No.158, November 2006; Age Concern news release, Heyday takes Government to court over mandatory retirement age, 3 July 2006 282 Clare Dyer, “Firms could face big payouts over forced retirement at 65”, The Guardian, 19 November 2007

135 RESEARCH PAPER 09/42 legitimate policy aim. Advocate General’s opinions are given before the ECJ considers a case. Opinions are not binding although they are followed in about 80% of cases.283

The final decision of the Court was delivered on 5 March 2009:

R (on the application of The Incorporated Trustees of the National Council on Ageing) v Secretary of State for Business, Enterprise and Regulatory Reform Case C-388/07

The ECJ held that the UK age discrimination legislation which allows dismissal of employees aged 65 or over if the reason for dismissal is retirement can, in principle, be justified under the Directive. They noted that the Directive does not require that member states draw up a list of the specific differences in treatment that could be justified by a legitimate aim. However, the court said that the general context of the measure concerned should enable the underlying aim of that measure to be identified for the purposes of review by the courts of its legitimacy. The question was whether the means put in place to achieve that aim are appropriate and necessary.

The ECJ recalled that under the Directive the aims that may be considered legitimate for justifying derogation from the principle prohibiting age discrimination are social policy objectives. These could relate to the labour market, employment policy or vocational training and could be legitimate aims because of their public interest nature unlike reasons that are merely related to the employer’s interests, such as cost reduction or competitive advantage.

However, the ECJ held that while member states have broad discretion in choosing how to pursue their social policy objectives they cannot frustrate the principle of non- discrimination on grounds of age. For example, generalisations about the ability of a specific measure to contribute to employment policy, labour market or vocational training objectives would not be enough to justify derogation from the principle of non- discrimination and would not constitute evidence that the means chosen are suitable for achieving those aims.

It is now a matter for the UK High Court to decide if the mandatory retirement provisions in the Employment Equality (Age) Regulations 2006 reflect a legitimate aim and if the means chosen to achieve this aim are appropriate and necessary. E. Other strands

There are issues surrounding a number of other equalities strands that have arisen in consultation besides those designated as “protected characteristics” in the Bill. Socio- economic class is also sometimes used as a research variable alongside the protected characteristics.

1. Carers

The rights of carers are particularly affected by the Bill following the Coleman case which clarified that protection from discrimination in EU law extends to carers of disabled

283 ECJ, Opinion C-388/07 in The Incorporated Trustees of the National Council for Ageing, 23 September 2008, OJ C 283 of 24.11.2007, p.9

136 RESEARCH PAPER 09/42 dependants through the principles of discrimination by association.284 On 2 April 2009 Harriet Harman published the following Cabinet Office Written Statement:

The Leader of the House of Commons (Ms Harriet Harman): In Great Britain, we already provide protection against direct discrimination and harassment that arises because the victim is wrongly perceived to belong or subscribe to a particular race, religion or belief, or to have a particular sexual orientation. Direct discrimination and harassment arising from association with a person of a particular race, religion or belief or with a particular sexuality are also prohibited.

The Government’s response to the consultation on reform of discrimination law(1), published on 21 July 2008, set out how we proposed to deal with direct discrimination and harassment based on perception and association in the Equality Bill. But we also made it clear that we would need to consider carefully the terms of the judgment of the European Court of Justice in the Coleman case(2), published on 17 July 2008, before determining the final approach for the Equality Bill.

I am today announcing that we have decided to extend the prohibition against associative and perceptive direct discrimination and harassment to other strands and areas where this does not currently apply. The Equality Bill will therefore prohibit direct discrimination and harassment based on association and perception in respect of race, sex, gender reassignment, disability, sexual orientation, religion or belief and age and in relation to both employment and areas beyond this, such as goods, facilities and services.

This extension will implement the Coleman judgment in Great Britain and the extension to other protected characteristics is in keeping with the aims of the Equality Bill to simplify and strengthen the law.

(1)Cm 7454

(2)Coleman v Attridge Law and another (Case C-303/06).285

2. Children

The age discrimination provisions in goods and services under the Bill will not extend to those under the age of 18. This is criticised by the EHRC.286 In the past the Government’s position has been that the rights of children come under general human rights provisions. The EHRC are also able to take account of the International Convention on the Rights of the Child. This was a topic that arose in debates in the Lords on the Equality Bill 2005-06.287

284 Coleman v Attridge Law, 17 July 2008, ECJ Case C303/06 (Advocate-General M. Poiares Maduro Opinion, 31 January 2008); see also section above on direct discrimination 285 HC Deb 2 April 2009 c88WS 286 EHRC, Parliamentary briefing for Commons Second Reading May 2009 287 For example Baroness Massey of Darwin: HL Deb 15 June 2005 cc1275 – 1278

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3. Caste

A PQ in the Lords from June 2007 said that caste discrimination would be considered by Government as part of its Discrimination Law Review:288

Lord Lester of Herne Hill asked Her Majesty's Government: Whether caste discrimination is unlawful in the United Kingdom; and Whether they will introduce amending legislation extending the definition of unlawful discrimination in the Race Relations Act 1976 to include discrimination based on descent, so as to comply with the obligations imposed on the United Kingdom by the United Nations Convention on the Elimination of All Forms of Racial Discrimination, and with the recommendations of the United Nations Committee on the Elimination of All Forms of Racial Discrimination.

The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Andrews): Caste discrimination is not explicitly prohibited by UK law. We are currently assessing the evidence of caste discrimination in the UK and are considering this issue as part of the discrimination law review.289

In July 2008 the Consultation Response made it clear that caste discrimination would not be addressed by the Bill:

15.1 We have decided:

[…] not to extend protection against caste discrimination. While recognising that caste discrimination is unacceptable, we have found no strong evidence of such discrimination in Britain, in the context of employment or the provision of goods, facilities or services. We would, however, consult the Equality and Human Rights Commission about monitoring the position.290

The reasoning for this decision is explained:

15.26 The consultation document did not specifically address the issue of caste discrimination. However, a number of representations have been received on this matter before and since the consultation, particularly since publication of a 2006 Dalit Solidarity Network Report on caste discrimination in the UK. It is the Dalits (or “untouchables”) who are seen as the victims of caste discrimination.

15.27 Caste discrimination is claimed to affect around 300 million people worldwide. The Communities and Local Government department has recently concluded an informal survey of around 20 key stakeholders to determine whether they were aware of any evidence that individuals or communities had been discriminated against on grounds of caste, in the UK.

15.28 On the basis of the responses received to the recent informal survey, we have concluded that there is no strong evidence of caste discrimination in the UK. In particular, there is no evidence of caste discrimination occurring in the specific fields which discrimination law covers: employment; vocational training; provision

288 See: Discrimination Law Review: A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain - A consultation paper, 12 June 2007 289 HL Deb 19 June 2007 cWA33 290 HM Government, The Equality Bill – Government Response to the Consultation, CM 7454, July 2008

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of goods, facilities and services; management or disposal of premises; education; the exercise of public functions.

15.29 To the extent that caste may be a factor in individual decision-making, some anecdotal evidence suggests that this would appear to be a reflection of social or cultural considerations, for example in choice of whom to marry. However, an individual’s marriage choice is not a matter for discrimination law. We have therefore decided not to provide protection against caste discrimination in the Equality Bill.

15.30 We will consult the Equality and Human Rights Commission about monitoring for any future evidence of caste discrimination in the UK and advising Government accordingly, in line with its statutory duties.291

A PQ in the Commons from November 2008 shows that the Department for Communities and Local Government have done some “informal” work on the caste system in the UK. The results of this work have not been published:

Mr. Kidney: To ask the Secretary of State for Communities and Local Government if she will assess the extent of inter-communal discrimination against Dalit people living in the UK. [237916]

Mr. Khan: The Department for Communities and Local Government has conducted, with stakeholders, an informal scoping exercise to learn more about the extent to which some communities believe caste is a continuing social phenomenon within British society and to identify any evidence that individuals have been discriminated against on these grounds. We are currently in the process of assessing responses received.292

The Dalit Solidarity Network (DSN) UK published a report in June 2006, No Escape: Caste Discrimination in the UK. Appendix 5 of the report gives an overview of International Law relating to caste discrimination. Generally the report focuses on caste discrimination in the UK in the religious, social and workplace environments. It gives case studies to show where all of these are happening and how they affect people and communities. The report made the following recommendations to Government:

 To officially acknowledge the existence of caste as a form of discrimination and include caste as a ‘special characteristic ’of discrimination in the Single Equality Act alongside race, gender, age, disability or religion, thereby enabling prosecution of anyone discriminating on the basis of caste in the UK, especially in the field of employment.

 Based on this legislation, to ensure all public advice, education and community support centres are informed and equipped to educate on, and respond to issues of caste discrimination.

 To commission an extensive research study on caste discrimination in the UK to identify the extent and severity of the issue and the individuals and communities affected, and to target funds towards affected groups and organisations that support them.

291 HM Government, The Equality Bill – Government Response to the Consultation, CM 7454, July 2008 292 HC Deb 20 November 2008 c 759W

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 To ensure representation of Dalits, Dalit organisations and affected communities in relevant public consultations particularly those concerning ethnic minorities, education and religion.293

Other sources of information about caste discrimination in the UK include:

 New Statesman article, Caste-ridden Britain, 3 January 2008

 The Caste Watch UK website

 The Dalit Solidarity Network UK website

There have been no previous attempts to legislate against caste discrimination in the UK. The Caste Watch UK website has a timeline of campaigning, news articles, reports, PQs and other relevant material relating to caste discrimination since 2003.

4. Genetic discrimination

There are no anti-discrimination provisions covering genetic discrimination currently in place, although the Human Genetics Commission (HGC) has called for these to be introduced in the Bill. The Government has said it is not minded to do this.

The HGC response to the consultation set out the main reasons behind its position as follows:

• Unfair discriminatory treatment of groups or individuals on grounds of genetic difference is unacceptable.

• There is anecdotal evidence of genetic discrimination, which constitutes an adequate justification for legislating now to prohibit genetic discrimination; furthermore, there are reasons to believe that opportunities for genetic discrimination will increase. We agree with the approach outlined by Ruth Kelly in her introduction to the consultation that discrimination should be tackled pre- emptively “rather than addressing it after the event.” We recall, in this connection, that the existence of both gender and disability discrimination were significantly under-recognised prior to legislation owing to the fact that evidence had not been systematically collected.

• As well as discriminatory treatment, there is evidence that the legitimate fear of future discrimination creates an undesirable context for – and exerts an undesirable influence on – choices made by individuals in the present, such as whether to take a medically relevant test or to participate in potentially beneficial research.

• Whilst existing voluntary arrangements and Codes of Practice appear to secure a high level of compliance in some important contexts, legislation prohibiting discrimination on grounds of genetic difference is likely to be the most effective way of addressing individuals’ fears about future genetic discrimination that may impact on decisions they take now.

293 Dalit Solidarity Network (DSN) UK, No Escape: Caste Discrimination in the UK, June 2006, p16

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• Whilst exceptions should be permitted to any prohibition of genetic discrimination, the grounds on which exceptions are made require careful consideration and the burden of justification should fall on those who would seek to treat individuals differently on grounds of genetic difference. We believe that there is precedent for such a model under current employment law, where it operates as a defence to a claim for indirect discrimination, and we understand that this works very successfully in this context.

• Those who are presymptomatic for serious genetic conditions should be as well protected in law as those who are diagnosed with, but asymptomatic for, acquired or spontaneously occurring conditions such as cancers or HIV. Whilst it would be inappropriate to provide this protection via the existing Disability Discrimination Act 1995, we believe that the Single Equalities Bill provides an opportunity to introduce such protection.

• Regulation is important in ensuring compliance with the proposed provision and in ensuring that any exceptions are properly justified, but we do not envisage the need for the establishment of any new regulatory bodies as we believe that appropriate regulation could be achieved through existing mechanisms.

• We do not expect the regulatory burden of a prohibition of genetic discrimination to be great, and we therefore find it to be a proportionate and affordable response.294

The Consultation Response set out its reasoning for not legislating at this point on page 9.295:

introduce statutory protection against discrimination on grounds of genetic predisposition, but to continue with the present system of monitoring by the Human Genetics Commission, in the light of the insurance industry’s extended moratorium on the use of such information;

On page 177 they clarify that:

We have recently agreed to the insurance industry’s proposal to extend until 2014 the existing arrangements for a voluntary moratorium on insurers’ use of predictive genetic test results and consider that this, along with continued monitoring of the use of genetic testing in the UK, should provide sufficient reassurance.

Pages 180 - 183 give full details of the issues considered and responses to the consultation. In particular, it lists those who called for legislation to be introduced now:

15.17 Those in favour of legislation included the Human Genetics Commission which considered that there is anecdotal evidence of genetic discrimination which constitutes an adequate justification for legislating now; and that there are reasons to believe that opportunities for genetic discrimination will increase. The Commission recognised that existing voluntary arrangements and codes of practice appeared to secure a high level of compliance in some important

294 Human Genetics Commission response to the Discrimination Law Review consultation, A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain, 14 September 2007; See also: HGC, Inside Information, Balancing interests in the use of personal genetic data, May 2002 295 Government Equalities Office, The Equality Bill – Government response to the Consultation, July 2008, Cm 7454

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contexts; but saw legislation through the Equality Bill as the most effective way of addressing individuals’ fears. Other specialist groups in favour of legislation included GeneWatch UK, the Genetic Interest Group, the British Psychological Society and Breakthrough Breast Cancer, A large number of disability groups also favoured legislation. Trades unions were also strongly in favour of legislation as was some legal opinion, including the Bar Council who argued that the Government should introduce primary legislation giving the Minister powers to quickly prohibit discriminatory practices as they arise by means of secondary legislation.

Disability discrimination principles could apply in cases involving genetic testing. This would depend on the facts of specific cases and whether they fall within the definition of disability.

A person has a disability for the purposes of the employment provisions of the DDA if he or she “has a physical or mental impairment which has a substantial and long-term adverse effect on his [or her] ability to carry out normal day-to-day activities”. Past disabilities are also covered. Schedule 1 of the Act amplifies the definition. For example, it provides that an impairment has a "long-term" effect if the effect has lasted for, or is likely to last for, at least 12 months. It also specifies certain conditions which can fall within the definition of a disability. These include severe disfigurement and progressive conditions "such as cancer, multiple sclerosis or muscular dystrophy, or infection by the human immunodeficiency virus".

The Bill proposes changes to this definition to create a harmonised definition across both employment and goods and services. The schedule of specific conditions is to be repealed. These proposals were set out on page 7 of the Consultation Response:

21. We will simplify the definitions of disability discrimination and the different justification tests allowing disability discrimination as well as the threshold for making reasonable adjustments. We will also repeal the list of capacities which forms part of the definition of whether a person is disabled.

This will be:

subject to the overriding principle that doing this should not result in any diminution of disabled people's rights.

5. Welsh speakers

The Consultation Response indicated that the Government does not intend to introduce specific protection against caste discrimination or discrimination for Welsh speakers. The issue was not consulted on but arose out of responses submitted to the consultation. These, together with the conclusions were summarised as follows:

15.31 The consultation document did not specifically address the issue of discrimination on grounds of language. A small number of responses were received, specifically on protection of Welsh speakers against discrimination, of which the most substantial was from the Welsh Language Board. In its written response and in follow-up meetings on this subject, the Board argued that;

 the Welsh language is an equality issue and has a special status in the law under the Welsh Language Act;

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 there are references to language as an equality issue in various statutes including the Scotland Act (Schedule 5);

 there is evidence of firms discriminating against Welsh speakers by preventing staff communicating with each other in Welsh;

 Welsh speakers suffer discrimination because certain public services such as health care, childcare, education may not be provided in Welsh;

Existing enforcement powers under the Welsh Language Act are too weak and Crown bodies such as Government departments are not required to comply.

15.32 The Board pointed out that it was not seeking protection for Welsh speakers against direct discrimination, because it had found no evidence of this. Instead, it wanted protection against indirect discrimination for Welsh speakers in Wales.

Assessment

15.33 Even though there are references to language under an equality head in the Scotland Act, as also elsewhere in European legislation, language is not included as a protected ground in existing European or domestic discrimination law. There would be significant policy implications in introducing language generally as an additional protected ground because this would raise questions about the equivalence or otherwise of the many languages spoken in this country. There would also be significant practical implications, given the large number of different languages used. We do not therefore consider that it is appropriate to add an additional protected ground of “language”, and do not envisage having provisions on language within the Equality Bill. Nor does it seem appropriate to legislate in the discrimination field specifically to protect Welsh speakers. It would be unusual to protect Welsh speakers against indirect discrimination but not direct discrimination; and the Welsh Language Board has found little evidence of direct discrimination. It is more appropriate that duties relating to the use of the Welsh language in the provision of public services should continue to be provided through the Welsh Language Act or equivalent legislation.

15.34 The Welsh Assembly Government is seeking legislative competence to be conferred on the National Assembly of Wales in respect to the Welsh Language, by means of an Order in Council under the Government of Wales Act 2006. The Government and Welsh Assembly Government are currently discussing the proposals.296

F. Academic studies of social mobility

In recent years there has been renewed interest – both within government and elsewhere – in the extent to which a person’s chances and opportunities in life are determined by their social background, whether such associations have strengthened or weakened over recent decades, and what policies might be put in place to promote

296 Pages 184-5

143 RESEARCH PAPER 09/42 social mobility.297 In a speech in June 2008, the Prime Minister announced that the Government would publish a White Paper setting out proposals to increase social mobility.298 The Cabinet Office issued a discussion paper on social mobility in November 2008299 and on 13 January 2009 the White Paper, New Opportunities: Fair chances for the future300, was published. On the same day, the Government announced the appointment of a ‘Panel on Fair Access to the Professions’, chaired by Alan Milburn, to look into the processes and structures governing recruitment into key professions.301 An independent ‘Nationality Equality Panel’ has also been set up by the Government Equalities Office. The Panel, chaired by Professor John Hills of the London School of Economics, will provide factual analysis of trends in inequality and look at the extent to which people’s life chances are affected by various factors, including their social background.302

‘Social mobility’ is generally taken to mean the movement, or opportunities for movement, between different positions in the social hierarchy. Social mobility can be considered over an individual’s lifetime (intra-generational mobility) or between generations (inter-generational mobility). There are also different ways of considering a person’s position in society. Sociologists usually focus on movement between different social class groupings (where class is determined by occupational status). Economists, on the other hand, tend to look at transitions between different income levels. The two approaches can yield different results.

Studies based on social class show that, for much of the postwar period, there was a steady increase in upward social mobility in Britain, while downward mobility fell.303 The pattern of increasing upward social mobility has often been attributed to economic and social changes which increased employment opportunities in the professional and managerial classes (more “room at the top”). More recent studies suggest however that from around 1970 the situation changed. The likelihood of men of moving to a higher occupational class than their father has remained constant since the 1970s. For women however the story since 1970 has been different; the number of women obtaining a better job than their parents has risen, while the number becoming downwardly mobile declined.304

It is important however to distinguish between absolute and relative social mobility.

297 See for example Cabinet Office Performance and Innovation Unit, Social Mobility: A Discussion Paper, April 2001; Prime Minister’s Strategy Unit, Life Chances & Social Mobility: A Review of the Evidence, March 2004; Alex Nunn et al, Factors influencing social mobility, DWP Research Report 450, 2007; J Goldthorpe and C Mills, ‘Trends in Intergenerational Class Mobility in modern Britain: Evidence from National Surveys, 1972-2005’, National Institute Economic Review, 205, July 2008, pp83-100; J Blanden and S Machin, ‘Up and Down the Generational Income Ladder in Britain: Past Changes and Future Prospects’, National Institute Economic Review, 205, July 2008, pp101-116 298 Prime Minister, Speech on education and social mobility, London, 23 June 2008 299 Getting on, getting ahead: A discussion paper analysing the trends and drivers of social mobility 300 Cm 7533 301 Cabinet Office, The Panel on Fair Access to the Professions, last updated 14 April 2009 302 Government Equalities Office press notice, Harman: Professor John Hills to chair National Equality Panel, 10 September 2008 303 See for example John Goldthorpe, Social Mobility and Class Structure in Modern Britain, 1987 304 Goldthorpe and Mills, op cit

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Absolute social mobility refers to the absolute number or proportion of people in a social group who move upwards or downwards, and may therefore be affected by changes to the occupational class structure over time. So, for example, mobility will increase if there is a general ‘upgrading’ of the occupational structure over time.

Relative social mobility is concerned with the chances people have of moving upwards or downwards to a different social group, controlling for changes in the overall occupational class structure.

Studies looking at relative social mobility show that, stripping out the effects of changes in occupational structure, there has in fact been little change over time in the chances of children from different backgrounds achieving a certain occupation in adulthood.305

The alternative approach to social mobility taken by economists considers the relative chances of people who grew up in families in different parts of the income distribution moving to another part of the income distribution in later life (‘inter-generational relative income mobility’). A study supported by the Sutton Trust by researchers at the Centre for Economic Performance at the London School of Economics, used data from the 1958 National Child Development Survey (NCDS) and the 1970 Birth Cohort Survey. They found adult earnings of the second cohort were more closely linked to their parental income as teenagers than was the case for the first cohort.306 In other words, those born in 1970 experienced lower rates of social mobility (when measured by income) compared to those born in 1958. The fall in mobility was associated with increasing income inequality and a strengthening of the relationship between educational attainment and family income, suggesting that the better off had benefited disproportionately from the expansion of higher education in the 1980s and 1990s. In a comparison with eight European and North American countries, the UK and the United States had the lowest rates of social mobility, though mobility rates in the US were more stable over time compared to the UK.

It is sometimes asserted that social mobility has declined under the Labour Government, but actual outcomes for more recent birth cohorts affected by policies introduced since 1997 will not be known until they have reached adulthood. The Children’s Plan307 set out the Government’s agenda for improving educational standards and closing the gap in educational attainment for pupils from disadvantaged backgrounds. A review of what had been achieved so far was published in the Children’s Plan – One Year On. Recent studies looking at the relationship between educational outcomes (degree attainment, test scores and behavioural measures) and parental income suggest however that the decline in social mobility may have flattened out.308

305 Goldthorpe and Mills, op cit 306 Jo Blanden, Paul Gregg and Stephen Machin, Intergenerational Mobility in Europe and North America, April 2005 307 Children’s Plan: Building brighter futures, Cm 7280, December 2007 308 Blanden and Machin, op cit

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G. Regulatory burdens

1. Better regulation principles

Regulatory policy has been significantly influenced by the perennial complaints of business that the burden of compliance with regulations of all kinds has worsened, and that this acts as an impediment to competitiveness, especially for the small business sector. These issues underlie any type of regulation, but engage a specific set of issues in the case of equality. For example, an article from August 2008 in the Financial Times reported on one example of how these issues might be interacting with equality policy:309

Alistair Darling, chancellor, is resisting pressure from Harriet Harman, the deputy Labour leader and minister for equality, to change procurement rules to improve gender and racial equality in the 30 per cent of companies that sell goods and services to the state.

The proposals would allow the public sector to require any company to disclose its gender pay gap and the number of ethnic minority and disabled people it employs. This information could determine which company would win a contract in cases where the competing tenders appear to offer equal value for money.

But the chancellor is opposing the guidelines amid Treasury concerns they run counter to government efforts to cut regulation and make it easier for smaller firms to win government business. Mr Darling is also worried the proposal could fall foul of European laws banning state bodies from setting "disproportionate" requirements in tenders.

"Value for money is our key procurement objective," a Treasury insider told the Financial Times. "We don't want to be putting on regulatory burdens and increasing costs in all this, and we don't want to discourage small businesses."

Successive governments have sought to deal with the regulatory burden on business in a number of ways: clarifying the likely costs to business of regulatory initiatives, making efforts to improve the drafting of legislation before it reaches the statute book, and revising or removing existing regulations.310

The previous Conservative Government’s emphasis on deregulation has shifted under the current government to “better regulation”. The application of the principles of “better regulation” can take many forms. The Government acknowledge that “classic” or “prescriptive” regulation is not always the best option. A set of principles has been developed and in some case put on a statutory footing. These are sometimes called “principles of good regulation” or “better regulation”. They state that regulation should be:

Proportionate: Regulators should only intervene when necessary. Remedies should be appropriate to the risk posed, and costs identified and minimised.

309 “Ministerial row over diversity rules for business” Financial Times, 8 August 2008 310 A good summary of the key developments in regulatory control since the 1980s is given in, National Audit Office, Better regulation: making good use of regulatory impact assessments, 15 November 2001 HC 329 2001-02: Appendix One p 40

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Accountable: Regulators must be able to justify decisions, and be subject to public scrutiny.

Consistent: Government rules and standards must be joined up and implemented fairly.

Transparent: Regulators should be open, and keep regulations simple and user friendly.

Targeted: Regulation should be focused on the problem, and minimise side effects.311

There are also wider issues about the modernisation of government.312 A cornerstone of the Government’s better regulation agenda has become the implementation of the Hampton Review.313 At the heart of these proposals is the policy concept of “risk-based regulation”. This means “regulating only when necessary and doing so in a light-touch way that is proportionate to the risk”. There is an important distinction (not always observed) in regulatory policy between the burdens that necessarily arise from the benefits that the regulation is intended to confer and the administrative burdens on business that are generated by practicalities of compliance.

Two key regulatory issues affecting equality policy are:

 Simplification – no-one disagrees that the current legislative framework is unnecessarily complex and in need of harmonisation and reform. A significant amount of discrimination law emanates from the EU or requires revision in light of EU legislation and case law.

 Enforcement – there is a wide array of possible approaches to enforcement which have implications in terms of the administrative burdens they impose proportionate to their effectiveness. The concept of “reflexive regulation” may best describe the kind of approach being taken by the current Government. Some administrative burdens may be directed toward a general goal of making business behaviour more transparent and thus more amenable to change or enforcement.

Some key simplification issues relevant to equality policy are:

1. Factors that have added complexity to the regulatory framework:

 The episodic development of discrimination law over the course of 43 years which results in different approaches to the same basic types of provision

311 Better Regulation Task Force website, 2004 (On 1 January 2006 the Better Regulation Task Force was replaced by the Better Regulation Commission, which on 16 January 2008 was replaced by the current Risk and Regulation Advisory Council). 312 See for example: Anthony Giddens, Risk and Responsibility, Modern Law Review 62 (1) 1999, 1–10 313 Philip Hampton, HM Treasury, Reducing administrative burdens: effective inspection and enforcement, March 2005

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 Subsequent European legislation and case law that requires that domestic legislation be amended in ways that generate added complexity  The dual system of sex discrimination law whereby equal pay is treated differently from other forms of sex discrimination  The requirement for tribunals to identify actual or hypothetical comparators

2. The impacts of regulatory complexity on business:

 The burdens of compliance, in terms of HR and advisory costs  Litigation costs are higher where complex legal issues are involved making disputes less amenable to early settlement and more likely to go to appeal  Insurance costs against employment liabilities may increase accordingly, since an important element of such insurance is legal costs insurance

3. The impacts of regulatory complexity on individuals:

 Individuals may be dissuaded from seeking redress if they are unclear on what the risks of litigation might be (for example in pregnancy discrimination cases where women may risk detachment from the labour market)  Awareness of employment rights is more difficult to promote where the legal rights are more complex and difficult to explain  Employment relations may suffer if individuals develop misconceived claims or employers seek to rely on defences which have no actual merit

4. The possibilities and limits of harmonisation:

 Harmonisation entails a degree of levelling up, increasing regulation  Equality strands are not identical so there will be some necessary divergence  It may be difficult to clearly identify cases where “one size” would not fit all

2. Enforcement

A single statute for all equality law was a key recommendation of the report by Hepple, Coussey and Choudhury in 2000.314 This suggested a regulatory enforcement pyramid:315

1. Persuasion/information 2. Voluntary Plan 3. Investigation 4. Compliance Notice 5. Judicial Enforcement 6. Sanction 7. Loss of contract/subsidy

314 B. Hepple, M. Coussey, T. Choudhury, Equality: a New Framework. Report of the Independent Review of the Enforcement of UK Anti-Discrimination Legislation Oxford: Hart Publishing, 2000 315 See Chapter 3

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In a paper in the Industrial Law Journal, Professor Christopher McCrudden characterised the general approach taken by the Discrimination Law Review Green paper as “reflexive regulation”.316 He was critical of the Green Paper which he said had failed to identify the pre-conditions necessary for this kind of regulatory approach to be effective. The term “reflexive regulation” is associated with a body of academic theory concerned with alternatives to “command and control” regulation where direct control is attempted, and for which the common opposition is “deregulation”. This is a kind of “third way” approach that emphasises deliberative participatory procedures (such as alternative dispute resolution) as a way of achieving regulatory objectives. McCrudden outlines potential problems with this approach:

 It may undermine the judicial process and access to justice  It may not be entirely compatible with the principle of non-discrimination in that it may fail to take account of political and economic interests and power imbalances; or lay fundamental principles of equality open to challenge  It may not be backed up by sufficient action to make it work

An important example given of reflexive regulation is the Northern Ireland employment legislation, such as the Fair Employment and Treatment (Northern Ireland) Order 1998, which uses the following regulatory techniques:

 Firms must monitor the composition of their workforce and produce reliable statistics  Firms and pubic bodies are under a fair employment and equality duty to shift entrenched patterns of inequality by whatever means are available  An external authoritative body monitors their progress in meeting these duties  There are detailed ways in which public authorities are required to engage with civil society groups (other than quangos)

This analysis suggests that a reflexive approach might require a significant level of regulatory intervention if it is to be effective.

3. Company reporting

The Consultation Response signalled the possibility of further action in the future in terms of company reporting:

9. We expect business will increasingly regard reporting on their progress on equality as an important part of explaining to investors and others the prospects for the company. We will review progress on transparency and its contribution to the achievement of equality outcomes and in the light of this consider, over the next five years, using existing legislation for greater transparency in company reporting on equality.

316 Christopher McCrudden, Equality Legislation and Reflexive Regulation: a response to the Discrimination Law Review’s consultative paper, Industrial Law Journal, Vol. 36, No. 3, September 2007

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The “existing legislation” referred to is the Companies Act 2006. This governs all aspects of company control, reporting and accountability to shareholders and has very little that might impose equality reporting on the majority of companies.317 There had been some requirements in a proposed ‘Operating and Financial Review’ (OFR) which the Government announced and then withdrew. These would have required for a much wider set of social and environmental factors to be reported by companies.318

Given the length of time that an OFR, of some sort, had existed and the detailed way in which proposals were introduced, debated over, consulted on and finally promulgated, (clauses 393 to 395 to give effect to the proposals had already been published in the then Company Law Reform Bill) it came as a surprise when the then Chancellor, Gordon Brown, made the following remarks in a speech to the CBI the week before his 2005 Pre Budget Report. He said:

Best practice is of course for companies to report on social and environmental strategies relevant to their business. But I understand the concerns about the extra administrative cost of the goldplated regulatory requirement that from April next year all quoted companies must publish an operating and financial review.

So we will abolish this requirement and reduce the burdens placed upon you - the first of a series of regulatory requirements which by working together we can abolish in the interests of the British economy.319

The regulations to repeal the original regulations the Companies Act 1985 (Operating & Financial Review) (Repeal) Regulations 2005 SI No.3442 were approved in committee on 16 March 2006.320

The OFR was replaced to an extent by the ‘Business Review’ (section 417 companies Act 2006) which did include some of the requirements of the defunct OFR.

4. European law

Many provisions contained in the Bill derive from obligations under European directives. These are listed in the introductory section of the explanatory notes. Non-EU derived provisions contained in the Bill were listed in a memorandum from the GEO as being those that:321

 Impose positive duties on public authorities to promote equality  Impose a duty on public authorities to consider socio-economic disadvantage

317 See Companies Act 2006 section 417(5)(b)(iii). Only the largest quoted companies are covered by the requirement to conduct a business review as part of the annual director’s report. The relevant paragraph refers in broad terms to “social and community issues”. 318 See: Tim Edmonds, SN/BT/3857 Operating and Financial Review 319 Speech by Gordon Brown to CBI 28 November 2005 320 Eleventh Standing Committee on Delegated Legislation, 16 March 2006. 321 GEO, Letter dated 05/05/2009 from Vera Baird MP to Andrew Dismore MP regarding the Equality Bill - Human Rights. Inc a memorandum, 5 May 2009, Deposited paper DEP2009-1293

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 Prohibit discrimination on grounds of religion or belief and sexual orientation in the provision of goods, facilities and services and the disposal and management of premises  Prohibit discrimination on grounds of marriage or civil partnership at work  Prohibit disability discrimination in the provision of goods, facilities and services and management and disposal of premises  Prohibit discrimination in the exercise of public functions on grounds of race, sex, disability, religion or belief, age and sexual orientation  Prohibit discrimination in the provision of goods, facilities and services on grounds of age.  Prohibit discrimination in education on grounds of race, sex, disability, religion or belief and sexual orientation  Prohibit discrimination in relation to private members’ clubs.

The European Commission has published proposals for further discrimination legislation. The Consultation Response said:

We will engage in discussions with the EU Commission on the development of a new Anti-Discrimination Directive prohibiting discrimination and harassment on grounds of age, disability, sexual orientation and religion or belief in various fields outside the workplace.322

The European Parliament adopted a resolution on the progress of implementing the EU’s anti-discrimination directives on 20 May. It called for an anti-discrimination directive extending to discrimination in access to goods and services in areas which are not covered by the existing directives. The Commission made a proposal for a Directive on 2 July 2008 extending the scope of the existing Article 13 Directives to non-work situations. This provides for protection from discrimination in the areas of social protection, including social security and health care, education and access to and supply of goods and services which are commercially available to the public, including housing. It covers grounds of age, disability, sexual orientation and religion or belief.323

IV Costs and benefits of the Bill

The Government Equalities Office has produced an Impact Assessment which estimates the costs and benefits of the Bill in monetary terms over the first ten years of the Bill.324

Owing to uncertainties in estimating these costs and benefits, they are given as ranges. To summarise:

 It is estimated that, over the ten years projected, the Bill will save between £22 million and £622 million in net terms.  Owing to the large costs of familiarisation with the proposed new legislation, the estimated costs are particularly high in the first year. The range of costs

322 GEO, The Equality Bill – Government Response to the Consultation, CM 7454, July 2008, page12 323 European Commission, Employment, Social Affairs and Equal Opportunities news release, EU proposes protection from discrimination beyond the workplace, 2 July 2008 324 Government Equalities Office, Equality Bill – Impact Assessment, April 2009

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projected for the first year of the legislation is £233-£272 million. The estimated benefits in the first year are £85-£115 million. Therefore the Bill is expected to cost between £117 million and £187 million in the first year.  This shortfall is made up through average net benefits of between £21 million and £82 million from the second year onwards.

The chart below shows the cumulative monetised net benefits under the best case and worst case scenarios:

Equality Bill: estimated cumulative monetised net benefits

£ million 800

600 Best case

400

200

0 Worst case -200

-400 0 1 2 3 4 5 6 7 8 9 10 Year

The chart illustrates the wide range of the estimated net benefit. In the best case scenario, the net effects of the Bill are beneficial by the third year. In the worst case scenario, the Bill has a net monetised cost until the ninth year.

The Impact Assessment includes estimates of the costs and benefits of different elements of the Bill, including breakdowns by sector of the economy. To summarise:

 The vast majority of the one-off costs in are borne by the private sector. Of the estimated £224 million non-recurring costs, £211 million, 94 percent, are to the private sector.  The recurring benefits to the private sector are estimated to be £12 - £13 million per year, compared with costs of £11 - £16 million. Accounting for the one-off costs, there will therefore be significant costs to the private sector regardless of whether the actual costs are towards the low or high end of the estimated ranges.  The largest recurring benefit is the general economic benefit to society of a more equal distribution of resources. This is valued at £60 million per year, and high and low estimates are not included in the analysis.  The next largest recurring benefit is that derived from making adjustments to common parts of let residential premises to improve access for disabled people. This is estimated to have benefits of between £10 million and £40 million per year through savings in home and residential care. The cost to the taxpayer of the grants to pay for these adjustments is estimated to be up to £27 million, so it is not clear whether this element of the Bill will have a net benefit or cost.

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 It is estimated, again without a range, that the simplification of discrimination law will result in benefits of approximately £11 million per year. This mainly benefits the private sector. This is based on a range of assumptions, including that the Equality Bill and resulting guidance will be one-third the size of the existing legislation, that there will be a saving of one hour per business or organisation and per discrimination tribunal and that one percent of employees will seek information about the new law.  After adjustments to common parts of residential properties, the second largest recurring cost identified is that of simplifying and standardising definitions of discrimination and related concepts. It is estimated that this will cost between £11 million and £17 million per year, including £9 million - £13 million by the private sector.

Various costs and benefits of the legislation were not monetised for this analysis. Those benefits listed include better understanding of the law reducing inadvertent non- compliance that leads to claims; possible lower costs of court and tribunal cases because of more consistent interpretation of laws and the wider economic and social benefits of improved access for disabled people. Non-monetised costs listed include increased claims resulting from greater awareness of rights and the potential costs of harmonisation with future EU law enabled through ‘future proofing’ in the Bill (Clause 191).

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V Statistical aspects of social inequality and mobility

A. Age

The UK population is ageing. By 2015 there will be more people aged 55-64 (7.3 million) than people aged 16-24 (7.2 million) for the first time.325 The number of people of working age aged 50 and over will increase from 9.2 million in 2006 to 13.5 million in 2025, as the population in these age groups grows and the pension age is increased, especially for women. Table 3 shows the projected population of the UK by age.

Table 3 Projected population by age, United Kingdom: 2006-2031 Thousands

2006 2011 2016 2021 2026 2031 Ages 0-14 10,737 10,912 11,428 11,947 12,026 11,974 15-29 11,876 12,614 12,458 12,024 12,191 12,706 30-44 13,302 12,699 12,691 13,492 14,132 13,975 45-59 11,744 12,295 13,094 12,986 12,398 12,420 60-74 8,269 9,265 9,824 10,432 11,035 11,802 75 and over 4,659 4,975 5,480 6,309 7,477 8,223

All ages 60,587 62,761 64,975 67,191 69,260 71,100 Mean age (years) 39.6 40.1 40.6 41.3 42.0 42.6

Children 11,537 11,643 12,096 12,687 12,828 12,781 Working age* 37,707 38,934 40,386 41,604 43,000 43,393 Pensionable age* 11,334 12,184 12,493 12,900 13,431 14,927

Support ratio* 3.33 3.20 3.23 3.23 3.20 2.91 (working age/pensionable age)

Source: GAD * Children under 16. Working age and pensionable age populations based on state pension age for given year. Between 2010 and 2020, state pension age will change from 65 years for men and 60 years for women, to 65 years for both sexes. Between 2024 and 2046, state pension age will increase in three stages from 65 years to 68 years for both sexes.

B. Disabled people

There are approximately 5.7 million people of working age in Great Britain who are disabled as defined by the Disability Discrimination Act 1995 (DDA); this is equivalent to 16% of the working age population.326

C. Transsexual people

There are no comprehensive estimates of the number of transsexual or transgender people in the United Kingdom. The Bill’s Impact Assessment uses an estimate for the UK adult transsexual population of 6,800.327

325 Government Actuary’s Department (GAD), 2006-based principal population projection 326 ONS, Labour Force Survey, Spring 2003

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D. Marriage and civil partnership

In England and Wales 21 million people had the legal status of “married”; this is 53% of the 16+ population.328

The total number of civil partnerships formed in the UK between December 2005 and the end of the third quarter 2008 is 33,000.329

E. Ethnic Minorities

Table 4 shows the UK population by ethnic group. 7.9% of the UK population is non- white. Additionally, 40.7% of people from ethnic minorities live in the 50 most deprived districts in England.330

Table 4 Population by ethnic group, UK: 2001

% of toal 000s population White 54,152 92.1 Indian 1,054 1.8 Pakistani 747 1.3 Black Caribbean 566 1.0 Black African 485 0.8 Bangladeshi 283 0.5 Chinese 247 0.4 Mixed 677 1.2 Other 577 1.0 Total 58,789 100.0

Source: ONS, 2001 Census

F. Religion

Table 5 below shows the UK population by religion from the 2001 Census. Nearly three- quarters of the UK population reported themselves to be Christian (71.6%). 5.4% of the UK population belong to non-Christian religions.

327 Govt Equalities Office Equality Bill Impact Assessment April 2009, Annex E 328 ONS Population Estimates by marital status 329 ONS Monthly Digest of Statistics April 2009 Table 2.3 330 ODPM, IMD 2004 and ONS, 2001 Census

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Table 5 Population by religion, UK: 2001

% of total 000s population Christian 42,079 71.6 Muslim 1,591 2.7 Hindu 559 1.0 Sikh 336 0.6 Jewish 267 0.5 Buddhist 152 0.3 Other 179 0.3 No religion 9,150 15.6 Not stated 4,477 7.6 Total 58,789 100.0

Source: ONS, 2001 Census

G. Gender

In 2007, the UK’s 61 million population contained 31 million women, 51% of the total. This masks variation by gender in different age groups. Women are 49% of those aged under 16 years, 48% of those of working age and, because of their longer life expectancy and earlier pension age, 63% of those over current state pension age.

H. Sexual orientation

There is no hard data on the number of lesbians, gay men and bisexuals in the UK. A range of 5-7% is frequently used. The Office for National Statistics has introduced a question on sexual orientation in its surveys from January 2009 and data from these will not be available until 2010.

I. Gender pay gap

1. Measurement of the gender pay gap

The Office for National Statistics preferred measure of gender pay gaps is the median hourly pay of full-time men and women employees, excluding overtime, taken from the Annual Survey of Hours and Earnings (ASHE).331 ASHE results focus on estimates of median earnings rather than mean pay. The median is the value below which 50 per cent of employees fall. It is preferred over the mean for earnings data as it is influenced less by extreme values, and because of the skewed distribution of earnings data. The

331 The ASHE was first published in November 2004 replacing the New Earnings Survey (NES). The ASHE is discontinuous with the NES; although ASHE methodology has been used on NES data back to 1997 to enable comparisons over time. Compared with the NES, the ASHE provides improved estimates of earnings by extending the coverage of the survey sample and introducing weightings. It should be noted that, as with any sample survey, estimates from the ASHE are subject to sampling variability and should therefore be treated with a degree of caution.

156 RESEARCH PAPER 09/42 gender pay gap based on full-time mean earnings was 17.1% in April 2008, compared with 12.7% based on median full-time earnings.

However, although median hourly pay provides a useful comparison between the earnings of men and women, it does not necessarily indicate differences in rates of pay for comparable jobs. Pay medians are affected by the different work patterns of men and women, such as the proportions in different occupations and their length of time in jobs.

2. Statistics

Data since 1998 are displayed in table 6 and chart 1 below. Full-time female employees median hourly pay was 87.3% of their male counterparts in April 2008. The pay gap clearly narrowed in the periods 1997 to 2004 and 2004 to 2006. However, the 2008 figure showed a slight widening in the pay gap.

Chart 1: The gender pay gap, 1997-2008

£13.00 88%

£12.00 86% £11.00

prices £10.00

2008 84%

, £9.00

£8.00 pay hourly men's to 82%

£ per hour per £

£7.00 pay hourly women's of Ratio

£6.00 80% 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 Male Female female/male ratio

[Source: ONS, Annual Survey of Hours and Earnings, 1998-2008]

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Table 6 Median gross hourly earnings: 1997-2008 United Kingdom, full-time employees, excluding overtime

Male Female Ratio of % change % change women's on previous on previous pay to £ per hour year £ per hour year men's Nominal terms 1997 £8.40 .. £6.94 .. 82.6% 1998 £8.74 4.0% £7.22 4.0% 82.6% 1999 £9.07 3.8% £7.58 5.0% 83.6% 2000 £9.35 3.1% £7.83 3.3% 83.7% 2001 £9.84 5.2% £8.23 5.1% 83.6% 2002 £10.26 4.3% £8.67 5.3% 84.5% 2003 £10.58 3.1% £9.04 4.3% 85.4% 2004 (a) £11.09 4.8% £9.53 5.4% 85.9% 2004 (a) £10.96 .. £9.37 .. 85.5% 2005 £11.29 3.0% £9.82 4.8% 87.0% 2006 (a) £11.71 3.7% £10.23 4.2% 87.4% 2006 (a) £11.64 .. £10.14 .. 87.1% 2007 £11.97 2.8% £10.48 3.4% 87.6% 2008 £12.50 4.4% £10.91 4.1% 87.3%

2008 prices (b) 1997 £10.11 .. £8.35 .. 82.6% 1998 £10.33 2.2% £8.54 2.2% 82.6% 1999 £10.56 2.2% £8.83 3.4% 83.6% 2000 £10.83 2.5% £9.07 2.7% 83.7% 2001 £11.26 4.0% £9.42 3.9% 83.6% 2002 £11.58 2.8% £9.79 3.9% 84.5% 2003 £11.77 1.6% £10.06 2.8% 85.4% 2004 (a) £12.20 3.6% £10.48 4.2% 85.9% 2004 (a) £12.06 .. £10.31 .. 85.5% 2005 £12.18 1.0% £10.60 2.8% 87.0% 2006 (a) £12.39 1.7% £10.82 2.1% 87.4% 2006 (a) £12.32 .. £10.73 .. 87.1% 2007 £12.33 0.1% £10.79 0.6% 87.6% 2008 £12.50 1.4% £10.91 1.1% 87.3%

Notes: Data are for all full-time employees on adult rates whose pay for the survey pay period was not affected by absence. (a) Changes to methodology mean there are breaks in consistency in 2004 and 2006. (b) Converted to real terms using April CPI.

Sources: ONS, Annual Survey of Hours and Earnings, 1997-2008 & Library calculations

Other findings from the ASHE figures for 2008 show:

 The pay gap was widest in London (16.7%) and narrowest in Northern Ireland (2.6%).  Financial and insurance services had the widest pay gap by industry, with hourly earnings for full-time women just 59.2% of their male equivalents.  The pay gap was 20.0% in the private sector, compared with 11.1% in the public sector.

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More information on pay gaps is published in Library Standard Note SN/EP/3795, An overview of statistics on equality and discrimination.

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Appendix 1: Organisations and Contacts

GENERAL

Equality and Human Rights Commission http://collections.europarchive.org/tna/20080530124139/http://www.equalityhumanrights. com/en/Pages/default.aspx

Helplines England Equality and Human Rights Commission Helpline Freepost RRLL-GHUX-CTRX Arndale House Arndale Centre Manchester M4 3EQ 0845 604 6610 - England main number 0845 604 6620 - England textphone 0845 604 6630 - England fax

Wales Equality and Human Rights Commission Helpline Wales Freepost RRLR-UEYB-UYZL 3rd Floor 3 Callaghan Square Cardiff CF10 5BT 0845 604 8810 - Wales main number 0845 604 8820 - Wales textphone 0845 604 8830 - Wales fax

Scotland Equality and Human Rights Commission Helpline Scotland Freepost RRLL-GYLB-UJTA The Optima Building 58 Robertson Street Glasgow G2 8DU

0845 604 5510 - Scotland Main 0845 604 5520 - Scotland Textphone 0845 604 5530 - Scotland – Fax

Main offices Please note: the telephone numbers below are not for the helpline. Please contact our helpline if you require this service.

Manchester Arndale House, The Arndale Centre, Manchester, M4 3AQ Telephone 0161 829 8100 (non helpline calls only) Fax 01925 884 000

161 RESEARCH PAPER 09/42 [email protected]

London 3 More London, Riverside Tooley Street, London, SE1 2RG Telephone 020 3117 0235 (non helpline calls only) Fax 0207 407 7557 [email protected]

Cardiff 3rd floor, 3 Callaghan Square, Cardiff, CF10 5BT Telephone 02920 447710 (non helpline calls only) Textphone 029 20447713 Fax 02920 447712 [email protected]

Glasgow The Optima Building, 58 Robertson Street, Glasgow, G2 8DU Telephone 0141 228 5910 (non helpline calls only) Fax 0141 228 5912 [email protected]

Liberty 21 Tabard Street London SE1 4LA Tel: 020 7403 3888 Fax: 020 7407 5354 Email:[email protected] www.liberty-human-rights.org.uk

Children’s Rights Alliance (CRAE) 94 White Lion Street London N1 9PF Tel: 020 7278 8222 Fax: 020 7278 9552 Email: [email protected] http://www.crae.org.uk

Confederation of British Industry Centre Point, 103 New Oxford Street, London WC1A 1DU Tel: 020 7379 7400 http://tinyurl.com/b2ypl6

Discrimination Law Association PO BOX 7722, Newbury, RG20 5WD Tel: 0845 478 6375 Email: [email protected]

162 RESEARCH PAPER 09/42 http://www.discriminationlaw.org.uk/

Department for Business Enterprise & Regulatory Reform 1 Victoria Street, London SW1H 0ET Equality and Diversity website: http://www.berr.gov.uk/whatwedo/employment/discrimination/europe/page24085.html

Government Equalities Office 5th Floor Eland House Bressenden Place London SW1E 5DU http://collections.europarchive.org/tna/20080515225749/http://www.equalities.gov.uk/

Tel: 020 7944 0601 Fax: 020 7944 0602

International Labour Organisation 4 Route des Morillons CH-1211 Geneva 22 Switzerland Switchboard: +41 (0) 22 799 6111 Fax: +41 (0) 22 798 8685 E-mail: [email protected] http://web.archive.org/web/20130701123617/http://www.ilo.org/global/topics/equality- and-discrimination/lang--en/index.htm

Trade Union Congress – Equality information Congress House, Great Russell Street, London, WC1B 3LS Tel: 020 7636 4030 Fax: 020 7636 0632 Email: [email protected] http://web.archive.org/web/20130118032759/http://www.tuc.org.uk/equality/index.cfm?

European Union – anti-discrimination campaign http://www.stop-discrim ination.info/99.0.html

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AGE

Age Concern Age Concern England Astral House 1268 London Road London SW16 4ER Tel: 0800 009966 (helpline) Email: http://web.archive.org/web/20100127094356/http://www.ageconcern.org.uk/AgeConcern/ Contactusmain.asp http://www.ageconcern.org.uk/

Age Positive Department for Work and Pensions Room W1001 Moorfoot Sheffield S1 4PQ http://collections.europarchive.org/tna/20040105031902/http://www.agepositive.gov.uk/

Campaign Against Age Discrimination in Employment (CAADE) 395 Barlow Road Broadheath Altrincham Cheshire UK WA14 5HW Tel.:0161 941 2902 Fax 0161 941 5580 Email: [email protected] http://www.coreindex.co.uk/company- profile.php?companyid=11043&indexcharacter=C&viewpage=6

Employers Forum on Age Floor 3, Downstream 1 London Bridge London SE1 9BG Tel: 0845 456 2495 Fax: 0207 785 6536 Email: [email protected] http://www.efa.org.uk/

Equality and Human Rights Commission (see above for contact details) http://www.equalityhumanrights.com/

Help the Aged 207-221 Pentonville Rd London N1 9UZ

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Tel.: 020 7278 1114 Fax.: 020 7278 1116 Email: [email protected] http://www.ageuk.org.uk/

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DISABILITY

Equality and Human Rights Commission (see above for contact details) http://collections.europarchive.org/tna/20080530124139/http:/www.equalityhumanrights.c om/en/Pages/default.aspx

Employers’ Forum on Disability Nutmeg House 60 Gainsford Street London, SE1 2NY Tel: 0207 403 3020 Fax: 0207 403 0404 Email: [email protected] http://www.efd.org.uk/

European Disability Forum Rue due Commerce 39-41 B-1000 Brussels Belgium Tel.: (+32) 2 282 4600 Fax: (+32) 2 282 4609 Email: [email protected] http://www.edf-feph.org/

Office for Disability Issues 6th Floor The Adelphi 1-11 John Adam Street London WC2N 6HT Email: [email protected]. http://collections.europarchive.org/tna/20081223104421/http://www.officefordisability.gov .uk/default.asp

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RACE

Business in the Community/Race for Opportunity 137 Shepherdess Walk London N1 7RQ Tel: 020 7566 8650 Email: [email protected] http://www.bitc.org.uk/workplace/diversity_and_inclusion/race/index.html

Centre for Research in Ethnic Relations University of Warwick Coventry CV4 7AL Tel.: 024 7652 4869 / 4324 http://www2.warwick.ac.uk/fac/soc/crer

Department for Communities and Local Government Eland House Bressenden Place London SW1E 5DU Email: http://www.communities.gov.uk/corporate/contact http://collections.europarchive.org/tna/20070905121354/http://www.communities.gov.uk/ communities/racecohesionfaith/

Equality and Human Rights Commission (see above for contact details) http://collections.europarchive.org/tna/20081107152625/http://www.equalityhumanrights. com/en/yourrights/equalityanddiscrimination/race/pages/racediscriminationrights.aspx

Ethnic Minority Foundation Forbes House 9 Artillery Lane London E1 7LP Tel.: 020 7426 8950 Fax.:020 7426 8429 http://ethnicminorityfund.org.uk/

Institute of Race Relations 2-6 Leeke Street London WC1X 9HS Tel.:020 7837 0041 Fax.:020 7278 0623 Email: [email protected] http://www.irr.org.uk/about/index.html

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Runnymede Trust 7 Plough Yard Shoreditch Brushfield Street London EC2A 3LP Tel.:020 7377 9222 Fax.:020 7377 6622 Email: [email protected] http://www.runnymedetrust.org/

RELIGION AND BELIEF332

Board of Deputies of British Jews 6 Bloomsbury Square London WC1A 2LP http://web.archive.org/web/20080326222020/http://www.boardofdeputies.org.uk/index.ph p Tel: +44 (0)20 7543 5400 Fax: +44 (0)20 7543 0010 Email: [email protected]

Brethren Christian Fellowship http://www.theexclusivebrethren.com/exclusive-brethren.html

British Humanist Association 1 Gower Street LONDON WC1E 6HD http://www.humanism.org.uk/home General Enquiries: 020 7079 3580 Fax: 020 7079 3588 Email: [email protected]

Catholic Bishop’s Conference of England & Wales 39 Eccleston Square London SW1V 1BX 020 76308220 http://www.cbcew.org.uk/

332 These national organisations responded to the Government’s Equality Bill Consultation paper and are listed in The Equality Bill – Government response to the consultation, Cm 7454, July 2008

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Catholic Parliamentary Office Mr John Deighan Parliamentary Officer 3rd Floor, 5 St Vincent Place GLASGOW http://www.rcpolitics.org/ Tel: 0141 222 2182 Fax: 0141 222 2182 Mobile: 07930 405 313

Christian Council of Britain PO Box 41 Spalding Lincolnshire PE12 2AH http://web.archive.org/web/20090213211404/http://ccob.co.uk/? Tel. 0870 383 0690 Email: [email protected]

Christian Institute Wilberforce House 4 Park Road Gosforth Business Park Newcastle upon Tyne NE12 8DG UNITED KINGDOM http://www.christian.org.uk/news/ Tel: +44 (0)191 281 5664 Fax: +44 (0)191 281 4272 Email: [email protected]

Church of England Church House Great Smith Street Westminster SW1P 3AZ Tel: 0207 898 1000 http://www.cofe.anglican.org/

Church of Scotland 121 George Street Edinburgh EH2 4YN Telephone: 0131 225 5722 http://web.archive.org/web/20090213211404/http:/ccob.co.uk/?

Equality and Human Rights Commission (see above for contact details)

169 RESEARCH PAPER 09/42 http://collections.europarchive.org/tna/20080530124139/http:/www.equalityhumanrights.c om/en/Pages/default.aspx Evangelical Alliance Whitefield House 186 Kennington Park Road London SE11 4BT 020 7207 2100 http://www.eauk.org/

National Secular Society 25 Red Lion Square London WC1R 4RL http://www.secularism.org.uk/ Tel: +44 (0)20 7404 3126 Monday to Friday 9.30 to 5 only. Fax: +44 (0)870 762 8971 [email protected]

Muslim Council of Britain PO Box 57330 London E1 2WJ http://www.mcb.org.uk/ Tel:+44 (0) 845 26 26 786 Fax:+44 (0) 207 247 7079

Scottish Inter faith Council 523 Shields Road Glasgow G41 2 RF http://www.scottishinterfaithcouncil.org/index.html 0141 420 6982 [email protected]

SEXUAL ORIENTATION

Equality and Human Rights Commission (see above for contact details) http://collections.europarchive.org/tna/20080530124139/http:/www.equalityhumanrights.c om/en/Pages/default.aspx

Gay and Lesbian Humanist Association Gower Street, London, WC1E 6HD United Kingdom: 0844 800 3067 International: +44 844 800 3067 http://www.galha.org/about-1/ [email protected] (for general enquiries)

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Lesbian and Gay Christian Movement Oxford House, Derbyshire St, London, E2 6HG, http://www.lgcm.org.uk/ Tel / Fax 020 7739 1249 e-mail us at [email protected]

Lesbian and Gay Employment Rights (LAGER) Unit 1G, Leroy House, 436 Essex Road, London N1 3QP 020-7704 8066 - lesbian helpline 020-7704 6066 - gay men's helpline 020-7704 2205 - admin & general enquiries email: [email protected]

Outrage! PO Box 17816 London SW14 8WT Tel.: 020 8240 0222

Stonewall Tower Building York Road London, SE1 7NX Tel: 08000 502020 (Info line) Email: [email protected] http://www.stonewall.org.uk/

MEN/WOMEN

Council of Europe – Equality between Men and Women http://web.archive.org/web/20090331144145/http://www.coe.int/t/e/Human_Rights/Equali ty/

Equality and Human Rights Commission (see above for contact details) http://collections.europarchive.org/tna/20080530124139/http:/www.equalityhumanrights.c om/en/Pages/default.aspx

European Union – information on gender equality http://web.archive.org/web/20090222023214/http://ec.europa.eu/employment_social/gen der_equality/index_en.html

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European Women’s Lobby 18 Rue Hydraulique B-1210 Brussels Tel: +32 2 217 90 20 Fax: +32 2 219 84 51 Email: [email protected] http://collections.europarchive.org/tna/20091013034706/http://www.womenlobby.org/site/ hp.asp?langue=EN

Fawcett Society 1-3 Berry Street London EC1V OAA Tel: 020 7253 2598 Fax: 020 7253 2599 Email: mailto:[email protected] http://www.fawcettsociety.org.uk/

ManKind Initiative (rights for men) Flook House Belvedere Road Taunton TA1 1BT Tel.:01823 334244 Email: [email protected] http://www.mankind.org.uk/

Parity: Equal rights for UK men and women David Yarwood, Hon Secretary ‘Constables’ Windsor Road Ascot SL5 7LF Tel and Fax: 01344 621167 Email: [email protected] http://www.parity-uk.org/

Soroptimist International (Women’s issues) 87 Glisson Road Cambridge CB1 2HG Email: [email protected] http://web.archive.org/web/20100305104520/http://www.soroptimistinternational.org/inde x.html

TRANSSEXUAL PEOPLE

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Press for Change BM Network, London WC1N 3XX Email: [email protected] http://www.pfc.org.uk/ The Gender Recognition Panel (Established under the Gender Recognition Act 2004) PO Box 6987 Leicester LE1 6ZX Tel: 0845 355 5155 Email: [email protected] http://collections.europarchive.org/tna/20090321125701/http://www.grp.gov.uk/

Gender Identity Research and Education Society (GIRES) Melverly, The Warren, Ashtead, Surrey KT21 2SP Tel: 01372 801554 Fax: 01372 272297 Email: [email protected] http://www.gires.org.uk/

The Gender Trust Community Base 113 Queens Road Brighton BN1 3XG Tel: 01273 234024 Email: [email protected] Helpline: 0845 231 0505 http://www.gendertrust.org.uk/

FTM Network [Female to Male & transgender people] BM Network, London WC1N 3XX Helpline: 0161 432 1915 Wednesday evening between 8pm and 10.30pm http://www.stonewall.org.uk/beyond_barriers/directory/advice__support/991.asp Email: [email protected]

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