11 December 2013

By Nerys Owen, the Labour Research Department

Equality experts at the latest IER Equality and Discrimination conference criticised the Coalition's actions in the domain, suggesting the government is dragging its feet in some important areas, and actively killing equality law through multiple cuts in others.

Last Wednesday (04 December 2013), experts drawn together by the Institute of Employment Rights (IER) met for the first of the Institute's annual Equality conferences – Equality and discrimination: what next for equal rights – to share their views with delegates. The event will be repeated in Liverpool on Wednesday 22 January.

Welcoming delegates to the conference, IER Director Carolyn Jones highlighted just a few of the indicators demonstrating the depth and pressing urgency of the problem of growing inequality under the current administration. Carolyn cited research by the OECD that puts the UK at seventh most unequal out of 34 OECD countries – and within Europe, with only Turkey and Portugal more divided than the UK. She highlighted evidence that 300,000 workers are being paid less than the minimum wage, and recent reports that anti-tax avoidance rules are unfit for purpose, capturing only 1% of an annual loss to the Revenue of £25 million in lost taxes. Even the Pope has spoken out against the inequality caused by unfettered capitalism.

Added to this perfect storm, Carolyn noted the growth in zero-hours contracts, the high number of workers in part-time low paid jobs, and new barriers to access to justice in the form of tribunal fees. At the same time as tribunal litigation is being closed off as a means of challenging bad workplace practice, the regulatory body with power to enforce equality in the workplace – the Equality and Human Rights Commission (EHRC) – is being underfunded, understaffed and stripped of powers. Even effective means of public protest and leverage campaigns are under threat, as demonstrated by the latest inquiry by Bruce Carr QC. Throughout the day, the speakers returned to these themes as the backdrop to the challenges faced by unions and other campaigners for equality.

Sir Bob Hepple, Chair of the Equal Rights Trust

The morning's sessions focused on current developments in equality law, with presentations from four legal experts: Professor Sir Bob Hepple QC, Chair of the Equal Rights Trust and long-time IER supporter; Aileen McColgan, author of the IER's bestselling Guide to the Equality Act 2010; Victoria Phillips, Head of Employment Rights at trade union solicitors Thompsons; and Nicola Newbegin of Old Square Chambers.

The afternoon's sessions focused on organising for equality in the workplace, with presentations from Diana Holland, Assistant General Secretary of Unite; and Sally Brett, Senior Equality Policy Officer at the TUC. Daisy Sands of the Fawcett Society also provided valuable contextual input, with a summary of the results of research by the Fawcett Society into the effect of the government's employment policies on the position of women in the labour market.

Sir Bob Hepple opened the conference with a comprehensive overview of the Coalition's record on equality law issues. He began by marking the importance of the Equality Acts of 2006 (EA 06) and 2010 (EA 10) as major steps forward. The Acts are significant for their unitary perspective on equality as a fundamental human right, for the creation of a single regulatory body – the EHRC – and lastly because they signalled a shift from a defensive approach to a positive commitment to advancing equality, especially through the creation of a single Public Sector Equality Duty (PSED).

Turning to review the Coalition's record to date, Bob identified a tension between two competing ideologies – Tory market fundamentalism: a belief that markets will solve all and that "red tape" must not stand in their way – and a thread of social liberalism evidenced, for example, by policies such as the sharing of parental leave. Under the Conservatives, the "business case" argument for equality – that a diverse workforce is good for business – has been turned on its head, with equality attacked as another burdensome source of "red tape". Once again, the case for equality must be made as a fundamental good in its own right. Although no longer at risk of repeal, the EA 10 is, says Hepple, suffering "death by a thousand cuts".

Prohibition on third-party harassment

Victoria Phillips, Thompsons Solicitors

Each of the morning's speakers denounced the decision to repeal the prohibition on third-party harassment as a "burden on business". While it may still be possible for lawyers to build sophisticated arguments around, for example, vicarious liability, to bring tribunal claims based on workplace harassment by third parties, what is lost as a result of this repeal is a strong message to employers that this sort of behaviour is not acceptable. The change leaves workers in public-facing roles particularly vulnerable to abuse. In a strong political presentation, Victoria Phillips questioned why – given the relatively limited and inoffensive nature of this piece of legislation – its repeal seems to have taken on almost totemic significance to the Tories in the desire to pander to the business lobby. Victoria highlighted the tension between the real Tory voice – ideologically driven and market focused – and the cosy language of equality, deployed in connection with same sex marriage and shared parental leave and designed to lull voters into a false sense of security.

Abolition of the statutory questionnaire procedure

One of the most serious changes, according to Bob Hepple, is the abolition of the statutory questionnaire procedure – again dismissed as a "burden on business" – even though it has been part of anti-discrimination legislation in the UK since the 1970s and is almost universally recognised as working reasonably well. The rules benefited both sides, by promoting the settlement of claims. Now, as a result of this change, the only way to secure the information needed is to launch legal proceedings. A simple step, capable of being carried out by an ordinary unrepresented individual, has been replaced by more litigation and lawyers.

Abolition of the power to make wider recommendations

Another forthcoming change – in the Deregulation Bill – will be the abolition of the power to make wider recommendations – also attacked as a "burden" on business. Bob Hepple reported that in 2012, wider recommendations were made in some 12 cases. He related how the demands imposed on employers by the recommendations in these cases were simple and straightforward. They included, for example, training courses for managers, general training in equalities for those involved in recruitment and bringing HR policies in line with the EA 10.

PSED Review

Nicola Newbegin, Old Square Chambers

The speakers also discussed the implications of the review of the PSED, now postponed to 2016, following the report of the Independent Steering Group published in October, which formed the main focus of Nicola Newbegin's presentation.

Nicola noted how, although there was a general sigh of relief among campaigners at the report's conclusion, that it is "too early" to make a final judgment. Nevertheless, the report contains plenty of strong signals aimed at encouraging public bodies to water down their performance of the duty. These include warnings against so-called "gold-plating" of the duty, which, as Nicola notes, risks bringing everything down to a minimal compliance-driven standard rather than aiming to promote equality. The review also suggested that smaller organisations should not be bound by the PSED, or that equality impact assessments are not necessary.

Nicola questioned the evidence basis for the conclusions reached by the Steering Group. How, for example, could they sensibly conclude that the PSED is not achieving its aims, having already acknowledged that it was too early to conclude their review, and where is the evidence to back up their suggestion of an "unofficial hierarchy of protected characteristics"? Speaking in the afternoon session, Sally Brett, Senior Equality Policy Officer at the TUC pointed out that the TUC had in fact provided the report with many different examples of the effectiveness of the duty, showing how the PSED plays a vital role in underpinning union work tackling inequality in the workplace.

Staying with the PSED, and as an example of how powerful a tool it can be, Bob Hepple welcomed the ruling of the Court of Appeal in November 2013, overturning the government's decision to close the Independent Living Fund. However, he pointed out that although the Court stressed the importance of record keeping, it did not regard equality impact assessments as necessary to fulfil the duty.

Introduction of Tribunal Fees

Aileen McColgan, Matrix Chambers

The single most harmful change, according to all the experts present, has been the introduction of tribunal fees, especially against the backdrop of cuts to legal aid. Both Aileen McColgan and Victoria Philips talked of a steep decline in their respective caseloads, although some stabilisation is expected. Sally Brett produced figures for single employment tribunal claims for 2012-2013 (monthly) showing that claims have "fallen off a cliff". The £1,200 cost of a discrimination claim is a major disincentive and Victoria Phillips' instinct as a practitioner is that individuals are beginning to change their behaviour as a result, and are deciding not to launch claims. Tribunal fees can, however, be a double edged sword, she said, as employers are starting to find themselves having to refund the fees when they lose the claim.

Fee remission also came under fire by the experts. The regime is not only exceptionally ungenerous but also complex and time consuming. Even qualified solicitors report the process taking the best part of a morning to complete, and the chances of an unrepresented litigant successfully navigating the remissions process are next to zero. Victoria recommended a blog by Paul Statham, employment specialist at trade union solicitors Pattinson & Brewer, describing his encounter with the remissions process. You can find it here.

Sally called for a clear commitment to be secured from the Labour Party on issues surrounding access to justice, in particular tribunal fees.

Acas early conciliation

Turning to Acas early conciliation, the "Jury is out", according to Victoria. If Acas is properly funded, early conciliation could present the prospect of trade unions and litigants being able to wrest back control of their cases from lawyers. However, there are many question marks being raised over the resourcing of Acas, and in practice, many employers will be unwilling to engage with settlement until they have seen the colour of the litigant's money via the full hearing fee.

The crippling of the EHRC

Another central theme, present throughout the day, was the disempowering of the EHRC, as a result of huge budget and staffing cuts, cuts to its remit and the outsourcing of its advice line to a privatised body. On a more positive note, Bob Hepple used campaigning in relation to the EHRC as one good example this year of the power of lobbying. It was a campaign started by the PCS that eventually built up enough momentum in the House of Lords to prevent repeal of the EHRC's general equality duty (EA 10 section 3).

Aileen McColgan gave a valuable presentation summarising some of the key case law developments in the field of equality, especially at the level of the European Court of Human Rights. The individual cases are detailed in her handout, available here.

Diana Holland, Assistant General Secretary, UNITE

Diana Holland used her presentation as an opportunity to look back over 30 years of experience to identify barriers to equality, and also to highlight what works, with a view to drawing up an agenda for today. She reminded those present of the need to make sure equality issues are placed at the centre of the bargaining agenda. The focus on cuts and austerity has meant that equality campaigners must once again explain not just how equality can be achieved but also why it matters. Equality is not a "tick box" exercise, or a "luxury we can't afford". Rather, issues of equality are central to many core workplace issues such as low pay, sickness, hours and job insecurity. Failure to recognise equality issues in the bargaining agenda will lead to a failure to address the interests of large groups of workers, who unions should be organising and supporting.

Equality campaigns work best, said Diana, when they are driven forward by those who are facing discrimination and who understand what they want to achieve. This underscores the importance of clear specific campaign groups: women, disabled members, LGB&T, young, older, retired members, parents and carers, alongside general equality reps – not instead of them.

Diana also emphasised the importance of maintaining pressure on the need for equality impact assessments, and proper monitoring to be able to demonstrate, with evidence, what is really happening in workplace.

Statutory rights for equality reps

She finished her presentation with a call to renew the campaign for statutory rights for equality reps – too often, she said, they are treated as second class citizens, whereas there is plenty of evidence that the presence of properly trained and supported equality reps in the workplace produces better outcomes. The call for statutory rights for equality reps was taken up and reiterated by Sally Brett.

Government dragging feet on caste discrimination and shared parental leave

Sally Brett, Senior Equality Policy Officer, TUC

Is there any good news? The panel highlighted caste discrimination – although the government is dragging its feet – as well as the really important changes to shared parental leave and the extension of flexible working. Speaking on shared parental leave, Sally Brett explained to delegates that the TUC had been very concerned at the initial stages of this reform because the first proposals envisaged scrapping maternity leave altogether and opening up the whole 52 weeks to sharing.

As a result of lobbying, that position has now changed. Instead, the woman is to retain her right to the full twelve months' leave unless she decides to share it. The TUC had two main concerns with the proposals in their original form: firstly, that the change to the law would result in many women feeling forced to return to work prematurely; and secondly, that employers might look to re-open long-established maternity benefits, through fear of sex discrimination claims by men. Those risks, says Sally, have largely now abated. However, the main practical barrier to the shared parental leave proposals is that hardly any fathers will be able to afford to take leave. Sally pointed out how only 0.6% of fathers have taken Additional Paternity Leave to date. This tells us that for shared parental leave to make a difference, employees will have to be paid more.

Mandatory pay audits

Mandatory pay audits are also a positive step, although the legislation creates what Sally Brett characterised as a "catch 22" situation. Only where an individual has gone to an employment tribunal and won an equal pay case will the tribunal have the power to make an order for a mandatory pay audit. But in the private sector at least, lack of transparency prevents employees bringing equal pay claims in the first place. Even if a claimant wins an equal pay case, the government has built in a raft of exceptions enabling employers to escape the obligation to carry out a mandatory pay audit, to ensure the new obligation is not a "burden" on employers.

Drawing her presentation to a close, Sally described the last couple of years as firefighting, but told delegates that the time has now come for unions to start pushing forward, using their presence in the workplace. The evidence is there. For example, research for the TUC by the University of Nottingham Business School has found that where unions were consulted or involved in collective bargaining over equal opportunity, policies were much less likely to be “empty shells”. And in separate research, which Sally called to be refreshed, the most effective equality reps were those spending at least five hours a week on their duties. Unions need to get back onto the front foot, to explain, once again why equality matters.

Download conference papers here