DLA conference 2013 - "Equality 2015: Setting the Agenda"

Date published: 
29 November 2013

Barbara Cohen, chair of the DLA, and Michael Newman, vice-chair of the DLA, report on the DLA’s 2013 conference ‘Equality 2015: Setting the Agenda’.

 

More than 100 people attended the DLA conference on October 21st. A main aim of the conference was to encourage participants to think about policy initiatives to achieve a more equal society looking towards to the General Election in 2015.The importance of greater equality was clear from the start of the day. A warm welcome was given by Daniel Ellis, partner at Baker & McKenzie. He referred to his firm’s work to improve the equality and diversity performance of their international corporate clients.

 

Lord Colin Low gave the keynote address. He used his long involvement with the RNIB and his wider campaigning experience to illustrate the three essential demands of disabled people: consultation and representation; inclusion; and, non-discrimination. Not so many years ago the RNIB was led, managed and staffed wholly by sighted people and operated as a paternalistic charity for blind people. Gradually, blind people were represented on the board and the views of blind people began to shape RNIB policies. Lord Low expressed his concerns regarding definitions of disability and that in at least some cases in applying the social model of disability the fact of impairment should not be ignored. Lord Low previewed some of the likely recommendations of the Low Commission on the Future of Advice and Legal Support. His four items for the 2015equality agenda were the UK to remain fully committed to the ECHR, to retain the Human Rights Act, to maintain an effective EHRC and to protect the PSED. Karon Monaghan QC opened the morning plenary session. She considered a number of trends emerging from recent case law in answering ‘Are the courts protecting us?’ She began with examples of the courts filling gaps caused by poor drafting of the EA or anticipated gaps following repeal of certain sections of the EA by the Enterprise and Regulatory Reform Act2013 (ERRA). While the ERRA has repealed s40(2) –(4) of the EA, Monaghan suggests that this will not relieve an employer of liability for harassment of their employees by third parties, it will only make the circumstances in which such liability arises much less clear. The EU anti-discrimination directives do not explicitly prohibit harassment by third parties but they anticipate that it should be outlawed at the least where it might have been foreseen or prevented – see Sheffield CC v Norouzi.1The ERRA repeal of the statutory questionnaire procedure seems to conflict with the government’s encouragement of early resolution. Monaghan explained how in this regard as well we will be able to rely on the courts, referring to Meister v Speech Design Carier Systems BmBH. [See Briefing 638]2An example of the courts stepping in to fill gaps in EA drafting is the omission in the EA of protection against post-relationship victimisation (a matter the DLA raised with the GEO nearly three years ago). In the employment context Onu v Akwiwu3 [see Briefing 681]has been able bring post-termination victimisation within the EA by extending the meaning of employer and employee. This leaves a gap for non-employment areas and former students, former members of associations, and former service users still unprotected against victimisation. Referring to the general lack of success of cases challenging ‘austerity measures’, Monaghan would put first in setting the equality agenda the bringing into force of s1 EA, the socio-economic duty on certain public authorities. This would recognise the close link between poverty and discrimination, and the experiences of disadvantage associated with the protected characteristics. Her next priority is that we should continue to litigate. She postulates that the courts may in future take on a greater role in developing the common law in the sphere of human rights. ‘If we can’t trust the legislature to protect us, we may have to fall back on the judges’. Professor Mark Bell considered the very topical questions, ‘Can we rely on Europe? Is Europe the answer?’ He suggested that in relation to equality and other employment-related protections the EU provides a floor of rights below which no member state’s national laws may fall. Further, the EU has in the past served as an engine for change – taking initiatives which, on their own, legislatures in many member states would not take. The most recent EU initiative in relation to equality was the proposed directive which would have extended the scope of protection going beyond employment on grounds of disability, religion or belief, sexual orientation and age. This was proposed by the European Commission in 2008 and considered by the European Parliament, but has since been trapped in a political deadlock. Bell also mentioned other EU initiatives, including maternity leave and the draft directive to improve the gender balance among non-executive company directors. Recent cases illustrate ways in which the CJEU has offered a wider interpretation of provisions in the anti-discrimination directives. Bell’s conclusion was that at a minimum Europe serves to hold back the tide of deregulation.

 

The public sector equality duty was the final topic for the morning. Professor Aileen McColgan began by looking back at the enactment in 20004 of the race equality duty which replaced an earlier duty on local authorities in the RRA. The essential difference was that the new s71 was to be enforceable. In McColgan’s view it is a matter of real concern that the specific duties (fo rEngland) imposed under the EA ‘have been watered down from those imposed by the predecessor provisions’, and that now even these weakened duties may be under threat. McColgan provided an overview of the case law under the race, disability and gender equality duties and the PSED. She began with Elias5 which had paved the way for s71 to become a ‘valuable tool in public lawyers’ toolkit and had radically expanded the parameters of British discrimination law’. McColgan commented that in the early cases challenges often succeeded because public authorities had flagrantly failed to pay any attention to the equality implications of their actions. Now it is more common for a public authority to have paid some regard and the issue between the parties is whether such regard is sufficient. In recent cases the courts have reminded applicants that the PSED is not a duty to achieve a particular result, and it is for the decision-maker to decide what weight should be given to the equality implications when they are put into the balance with countervailing factors. The decision-maker must conduct a rigorous examination of a proposed measure, but is not required to undertake a minute examination of every possible impact. Overall the cases emphasised the need for public authorities to mainstream equality analyses in its decision-making processes. Where a public authority has gathered the right information and asked the right questions its decision is unlikely to be challengeable.

 

John Halford then took us through the recent months of the PSED which, 13 months after coming into force, became subject of a government review, based on the government’s Red Tape Challenge. A ‘subtext’ to this review was the Prime Minister’s speech to the CBI in November 2012 ‘calling time on Equality Impact Assessments’. As Halford explained, the review was carried out along several parallel lines: by GEO officials, by the so-designated independent steering group and by qualitative research conducted by NatCen. This last involved on-line consultation and in-depth interviews with 91 individuals from 83 public-sector organisations. Halford highlighted the NatCen conclusions, which differed in many ways from the conclusions of the steering group. The general view expressed to NatCen was that the PSED was either working well or had the potential to work well. Research participants identified many ways within their organisations in which the PSED had made a positive difference. The steering group acknowledged lack of evidence in reaching different, tentative conclusions on which they based their recommendations involving actions by the EHRC, regulators/inspectors/ombudsmen, public bodies, government and contractors. The Minister for Women and Equalities accepted all of their recommendations. She also agreed to undertake a full evaluation in 2016.In looking towards the future.  Halford’s vision was quite bleak: equality considerations to be played down in procurement, and better guidance but only for ‘minimal’ compliance. He asked whether a greater role by regulators and inspectors would be a trade-off for an ouster clause for judicial review other than by the EHRC. Would the specific duties be abolished? Might the courts move to establish equality as a mandatory consideration at common law? What will public authorities do now?

 

During the afternoon more than a dozen speakers led workshops on nine current topics offering opportunities for debate and discussion amongst the participants. A panel discussion, ‘Equality 2015: options for the way forward’, brought the conference to a lively end. Chaired by Ulele Burnham, panel members began by stating their priority equality options. Paul Harrison, from the Employment Department at Baker & McKenzie, expressed the concerns of his corporate clients. These included weeding out unmeritorious discrimination claims, which seemed to be increasing, at an early stage, and wanting to protect employers from onerous equal pay audits. Ben Moxham from the TUC Equality and Employment Rights Department had four items on his list of priorities; abolish ET fees, make the PSED work properly, require equal pay audits and provide statutory rights for trade union equality reps. Sandra Kerr OBE from Business in the Community/Race for Opportunity used her slot to highlight the decreasing levels of participation of ethnic minorities at different stages of life chances: 1 in 4 at primary school, 1 in 8 in employment and 1 in 16 in senior employment positions. When ethnic minority students leave university they are more likely to be unemployed than their white counterparts, and currently the BME employment gap is 12%. Ali Harris, who leads on equality strategy at Citizens Advice, wanted to see implementation of the socio-economic duty under s1EA; she wanted the PSED to become an effective negotiating tool; at local level she wanted to see are-thinking of relationships within workplaces, and at national level she wanted to reframe the ‘reform’ agenda to stop the erosion of a safety net of rights.

 

 

Participants then entered into discussion with panel members, some more optimistic than others with regard to the future prospects for equality, but most energised to ‘keep up the fight’ towards 2015 and beyond.