06 December 2012

By Roger Jeary

A report on yesterday's Equality and Discrimination conference, at which seven experts discussed the future of equality law under the current government and the effect of recent legislation on protected groups.

Sixty five delegates braved the cold and the first snow flurries in London to attend the Institute's Equality and Discrimination Seminar yesterday (05 December 2012). With an impressive line-up of expert speakers and a Coalition government intent on dismantling and undermining the gains made in recent years to promote equality, the timing of this seminar could not be more appropriate.

It was clear from the comments around the hall that the greater awareness created by seminars of this type, with the expert contributions which the Institute had brought together, was an important means through which knowledge added to the power of workers and their unions.

Due to the wealth of information and debate provided by the conference, this report is a long one. If you are interested in one topic only, please use the below navigation to find the section you are looking for:

1. Baroness Margaret Prosser, previous Deputy Chair, EHRC - What next for the Equality and Human Rights Commission?
2. Aileen McColgan, Matrix Chambers - The Public Sector Equality Duty and Positive Action
3. Emma Tamer, Thompsons Solicitors - Justifying direct age discrimination: case law precedents
4. Victoria Phillips, Thompsons Solicitors - Equalities in an age of austerity
5. Muriel Robinson, Independent Legal Professional - Dual discrimination: the significance of delaying Section 14
6. Elizabeth Stephenson, Pattison and Brewer Solicitors - Unfair dismissals and trade union activities
7. Sally Brett, TUC - The Equality Agenda: a view from the TUC

Click here to see all conference papers, photographs and download audio recordings of the event

Baroness Margaret Prosser

Delegates were welcomed to the seminar by Sonia McKay from the Working Lives Institute, who chaired the morning session. The day kicked off with a forward-looking talk from Baroness Margaret Prosser on the Equality and Human Rights Commission (EHRC), of which she was previously Deputy Chair. The Commission has been one of the casualties of the government’s approach to equality, being seen as a target for initiatives such as the Red Tape Challenge – the removal of regulations seen as a burden upon business.

Margaret started by outlining the present context of the EHRC, pointing out that eight experienced commissioners have been removed, a new Chair (Baroness Onora O’Neill) appointed, and a budget of £70m slashed to £26m. She reminded the seminar that the Commission is a regulator with a range of responsibilities, including overseeing the Public Sector Equality Duties, and an investigatory role into companies where breaches of equality rights occur. These reactive roles are complemented with its proactive work with campaign organisations to promote equality.

The Commission started in 2006. It brought together the three original commissions covering equality, race and disabilities in addition to responsibilities for age, sexual orientation, and religion and beliefs. The breadth of the remit caused problems with a lack of coherence.

Margaret went on to talk about changes to the structure of the EHRC. She was critical of the removal of the regional structure but pointed to the establishment of the helpline as a positive point, although she regretted it had now been passed to central government as an operation. Legal aid is also no longer provided for law centres, making life difficult for people who rely upon such support. All of these are the consequences of government budget cuts.

It is important to understand what kind of work these cuts are attacking. Margaret listed several achievements of the EHRC, including a recent investigation into government failures to use equality impact assessments. Of course, these same assessments are now to be cut out of government policymaking altogether, which all of the experts present renounced as a sign of the government's lack of interest in progressive equality policy. Another success of the EHRC was an investigation into the meat packaging industry, which it was found was exploiting migrant labour, and stop and search practises by the police.

Now, with the EHRC's remit confined to more focused work and forced to work in partnership with others, Margaret fears the future of the Commission will be bleak. Unless a government more sympathetic to progress comes into power, then the progress of the EHRC will be limited.

Aileen McColgan

The next speaker was Aileen McColgan of Matrix Chambers (please see her presentation here), who addressed the issue of the Public Sector Equality Duty (PSED). She began by reminding everyone of the history of the Duty. The requirement of a law to ensure public bodies treat different groups of individuals fairly was brought to light most famously after an enquiry led by Sir William MacPherson into the case of Stephen Lawrence - a black teenager who was viciously murdered in a racist attack, justice for which was long-awaited due to the incompetency of the police investigating the case. Sir William accused the police of institutional racism and said: "It is incumbent upon every institution to examine their policies and the outcome of their policies and practices to guard against disadvantaging any section of or communities."

The PSED was not passed into legislation until two years ago when it was included in the Equality Act 2010 (s149) as a statutory duty. It provided a new approach to safeguarding equality, by moving from restitution to mainstreaming. In other words, better not to adopt policies which bring disadvantage to some but to adopt a pre-emptive duty of consideration.

Aileen explained this placed a duty on public authorities to eliminate discrimination, advance equality of opportunity and foster good relations between persons who share a relevant protected characteristic and persons who do not share it. For public authorities, the significance of these duties goes beyond employment issues alone and encompasses service provisions and spending decisions. Public authorities have to think about what equality promotion really means.

Aileen gave a number of legal examples outlining what the equality duty means in practice. These illustrated the need for public authorities to “be aware” of their “due regard” duties at the time of making any decision. Interestingly, this duty has been use to challenge cuts in services as exampled in a case at Birmingham City Council (Rahman v Birmingham City Council [2011] EWHC 944 (Admin)) by restricting social services to only those in critical need rather than critical and substantial need. Despite carrying out an equality impact assessment, it didn’t know what the impact would be because it had not asked the recipients of this service what it meant to them. Due regard is not a tick box exercise. Aileen made the point that equality impact assessments are simply a tool and what is important is that the equality implications of decisions are fully explored. She said David Cameron’s announcement about equality impact assessments not always being needed is right but it does not take away the duty to pay due regard to promote equality and eliminate discrimination. As she put it, without asking the question how do you know the impact?

Aileen then moved on to look at positive action, where it can be justified, and what amounts to proportionate means, presenting some examples of where it has worked effectively. She referred to European law and described positive action as a valuable opportunity to address disadvantage. However, she cautioned that the burden of proof is strict and that tribunals/courts would use objective assessment. If certain conditions are not met, positive action will probably be found to be discriminatory. Aileen also reminded delegates that positive action is voluntary and cannot be demanded.

Next up was Emma Tamer from Thompsons Solicitors who looked at the justification for age discrimination through case precedents. Emma focused on the issue of retirement following the removal of the default retirement age. Age is a protected characteristic in equality law but the legitimacy of the justification of age discrimination has to be in the public social interest, known as intergeneration fairness and preserving dignity. Intergenerational fairness includes creating access to employment for young people and enabling older people to remain in employment. Emma said that despite costs not being a legitimate aim alone it can be considered as part of the rationale of having a compulsory retirement age in place. Type of work or profession is another possible legitimate reason for compulsory retirement.

The legality of forced retirement was highlighted earlier this year by the case of lawyer Lesley Seldon, who was required to leave his post at the age of 65. He was backed by the EHRC and charity for the elderly Age UK, however the Supreme Court decided in favour of the employer.

Having expanded on this outline through UK and EU cases, Emma moved on to look at the implications for trade union negotiators. She reminded delegates of the need to revisit collective agreements, review retirement ages and consider alternatives and finally to check whether there is support amongst the workforce.

Victoria Phillips

Ironically the next speaker, Victoria Phillips from Thompsons, came on at the same time that George Osborne was preparing to stand up in the House of Commons to present his Autumn Statement. Victoria’s session was entitled Equalities in the Age of Austerity. Victoria outlined what had happened in the past two and a half years as a result of government law reform and employment law reforms. For a detailed look on the changes that have occurred, please see our Coalition timeline. Victoria emphasised the proposals to repeal sections of the Equality Act, including 3rd party harassment provisions, the questionnaire procedure for tribunals, employment tribunals' right to make recommendations, and threats to the Public Sector Equality Duty (S149).

Vicky also addressed the nonsense of Adrian Beecroft’s proposals to introduce “no-fault dismissal” and his description of the fact employers might dismiss people just because they didn’t like them as " …sad [but] I believe it is a price worth paying". Furthermore, the impact on disadvantaged workers of changes to tribunal reforms - including the extension to two years of the unfair dismissal qualification period, judges sitting alone, reduced costs awards and high tribunal fees - were felt to be greater. She also pointed to aspects of the Enterprise and Regulatory Reform Bill, currently passing through parliament, which threatens the effectiveness of the EHRC.

Vicky finished by suggesting that there might be some rays of sunshine arising from this gloomy environment, in that unions become more attractive in adversity and the introduction of fees at tribunal may lead to more workers realising the benefits of trade union membership.

The afternoon session, chaired by Carolyn Jones, kicked off with an interesting contribution from Muriel Robinson on the subject of dual discrimination and the implications of the government’s decision not to bring into force S14 of the Equality Act 2010. Muriel explained that S14 was designed to deal with situations in which someone has been discriminated against because of a combination of two relevant protected characteristics - such as gender and race. The Equality Act missed an opportunity to introduce a more holistic approach to protected characteristics, she stated. S14 was the one chance to do this to an extent, but it has now been removed.

Muriel explained that the Act does not prevent consecutive multiple discrimination. However combined or compound discrimination (sometimes described as intersectional discrimination) is not now covered by the Act. An example of intersectional discrimination is where a black woman is passed over because of a stereotypical view of the employer that black women are not very good in sales roles. The employer can defend both a claim of sex and racial discrimination, as they could point to both men and women and black male workers employed in this capacity so they were not discriminating in either of the protected characteristics. S14 would have allowed a case to be brought on the combined grounds of being a black woman.

Government wanted to limit the effectiveness of S14 by keeping it to dual and direct discrimination. The absence of even this limited form of protection was designed to fill a gap revealed in cases such as Bahl v Law Society 2004 IRLR 799, CA, where it was determined that in order to be successful, primary facts in relation to each type of discrimination must be proven, then the employment tribunal must explain why it is making the inference.

However Muriel went on to suggest that other cases demonstrated that the protective characteristic need not be the sole or even the principal reason for the treatment - in these cases it was sufficient that it had a significant influence on the outcome. Muriel also referred to the well known case of the female presenter on the BBC in which it was found that she could have successfully claimed under both age and sex discrimination. (O’Reilly v BBC).

In looking at the issue of indirect discrimination, which S14 did not cover, Muriel pointed to indirect discrimination cases where combined characteristics have been successful. For example, in the case of MOD v Debique 2010 IRLR,471, EAT. Similarly, harassment can involve multiple discrimination, as the language of harassment legislation talks about related characteristics and EU Law also points on occasion to instances where multiple characteristics can be taken into account.

Elizabeth Stephenson

The seminar then moved to the issue of unfair dismissal and Elizabeth Stephenson from Pattinson and Brewer presented her views on unfair dismissal and trade union activities. She started by dispelling the myth that union representatives enjoy special protection from the law. Whilst this is not strictly true, she did point to some important protections that union reps should be aware of.

Firstly, automatically unfair dismissal applies where the dismissal is on grounds related to union membership or activities, (S152 Trade Union and Labour Relations Act 1992). This section also prohibits employers from dismissing workers due to their making use of trade union services, their failure to accept an inducement related to union membership, or for not being a member of a particular union or refusing to become one.

Unfair dismissal can be claimed when a worker is dismissed on the grounds of being involved in trade union activities, even if their union is not recognised by the employer. The activities the individual has partaken in must be on behalf of the union in some way, but can be performed by either union members or someone who holds a position in the union. Activities of a steward may involve bargaining, consultation and handling individual cases. Meanwhile, members and officials are both protected by the law when talking to union officials, recruiting new members, organising members, undergoing union training and distributing union literature. Elizabeth illustrated these protections through case law. She stressed the use of the phrase "appropriate time" in S152(2). This is particularly relevant in any case which effectively argues that this amounts to time outside of normal working hours or during working hours where consent from the employer has been given. So taking part in strike action is not classed as taking part in a union activity at an appropriate time, and is thus not protected.

Elizabeth reminded reps that claims in relation to dismissal or detriment have to be brought within three months less one day of the event and claims for interim relief must be made within seven days.

Sally Brett

The final session of the day was an overview of the Equality Agenda presented by Sally Brett, Senior Equalities Officer from the TUC. This was an excellent summary of the effects of government attacks on the equality agenda, many of which had been touched upon by earlier speakers during the day. She started by reminding us that this government has stepped back from recognising people as groups or equality strands, but rather as 62 million individuals. Additionally, what equality strategy the Coalition does have, is one that would not be centrally controlled. Sally talked about the Equality Act Repeals, the reform of the EHRC and access to justice and then went on to describe the PSED review currently underway. She pointed to the work that the TUC was undertaking in conjunction with individual member trade unions through responding to government consultations, using the Enterprise and Regulatory Reform Bill to stimulate a proper debate about such issues in parliament and bringing international pressure to bear.

Sally then turned to the PSED, which she suggested government is contemplating removing altogether. She criticised the make-up of the steering group of the review into the PSED as people from the public services limited to Conservative and Lib Dem supporters, as well as people who have an involvement with this government’s approach to public policy. Sally outlined the purpose and scope of the review and its parameters and expressed serious concerns about the likely outcomes. Particularly worrying was that the review will consider the breadth of the protected characteristics to be covered by the PSED. The TUC has requested union involvement in the review, but so far only a roundtable discussion has been offered and this has yet to come to fruition.

On a positive note, Sally was able to report that the TUC Equality Audit threw up positive examples of achievements by trade unions in the workplace despite the pressure of austerity. The Audit also reported positively on the work that trade unions were doing to target recruitment and adapt structures to ensure full participation and wide diversity of membership.

Click here to see all conference papers, photographs and download audio recordings of the event