DLA Conference 2012 - "Equality Act 2010: Keeping the show on the road"

Date published: 
29 November 2013

Barbara Cohen, discrimination law consultant, reports on the DLA’s conference which took place in London on October 5, 2012. She highlights the discussions on how practitioners, advice workers, trade unions and others can maintain efforts to combat discrimination in the face of major changes by the Coalition Government to equality law and its enforcement. 

Speakers, panel members and participants considered the conference topic from three different perspectives. Firstly, speakers discussed recent developments inequality law and, in particular, the coming into force of protection against age discrimination outside the field of employment. Secondly there were presentations and discussions on ways to use the Equality Act 2010 (EA) more effectively including both the anti-discrimination provisions and the public sector equality duty (PSED).Thirdly, reflecting the over-arching theme of the conference, speakers, panel members and participants considered how government measures are dismantling the equality infrastructure and discussed possible responses. By the end of the day, no one could doubt the serious impact of the overlapping threats to the protections and rights to redress within the EA. Important sections of the EA are to be repealed or never brought into force; imposing employment tribunal fees while cutting legal aid and funding of advice agencies will result in far fewer instances of discrimination being challenged and victims compensated; the EHRC, with key enforcement powers, is to lose certain duties, have significantly reduced resources and will work under a new framework which potentially threatens its independence. While these measures are extremely worrying, especially when other austerity measures are disproportionately affecting the lives of disabled people, women and many ethnic minority groups, speakers and participants had some positive ways to ‘keep the equality show on the road’. These included making better use of existing resources, knowledge and experience both to challenge inequalities and discriminatory policies and practices by building networks and coalitions and strengthening trade union involvement. EU law, the ECHR and UN bodies could be used to expose and challenge law reforms, new barriers to justice and changes to the EHRC. It is important to remain focused on and expand understanding of the EA to workers and public and private sector employers and service providers.

Networks to empower complainants

Two keynote speakers, concerned about equality rights from different perspectives opened the conference. Miriam O’Reilly, who, in 2011, won a landmark ageism case against the BBC, described how isolated she felt from the time she began her discrimination claim, even though she had absolute confidence in her legal representative. Her personal experience demonstrated the need for better support for claimants; she has helped to establish the Women’s Equality Network1 and serves as its first patron. This interactive on-line network offers women experiencing discrimination and harassment at work an opportunity to receive support and basic legal advice. She commented that, after giving telephone and face-to-face support to a number of women, she is aware that support which is only on-line will not be able fully to meet the needs which triggered the establishment of the Network.

Collective bargaining essential for workplace equality

The second keynote speaker, John Hendy QC, drawing on his many years as an advocate in industrial relations and trade union litigation, emphasised the importance of collective bargaining to reduce inequality in its broadest sense – inequality between rich and poor. He discussed the rapid decline in the number of workers covered by collective agreements in the UK as a result of restrictive legislation and the impact this has had on incomes and rights at work. He reminded the conference that trade union rights are underwritten in international law. He warned of the implications for equality if the EU approves the World Trade Organisation General Agreement on Trade in Services Mode 4 (temporary migration of workers to provide services); this would enable EU employers to pay migrant workers employed to provide services at the same rate as such workers would be paid in their country of origin. In the discussion that followed the two presentations, participants reinforced from their experience the isolation of claimants and lack of access to justice, lack of connection between lawyers and people needing advice but also, despite increased restrictions hampering their role, many trade unions are better prepared and more committed to challenge discrimination in individual cases and across an organisation.

Equality Act 2010 update

The first of the main speakers, Robin Allen QC, began by citing a Government Equalities Office (GEO) report Changing Attitudes to Equality which showed degrees of prejudice against groups within certain protected characteristics by different groups. Despite variations, the evidence was of continuing prejudice within British society. For some groups, the report showed more than50% being prejudiced against certain other groups.  Hethen offered one item of ‘good news’ the coming into force of the EA prohibition of age discrimination in relation to the provision of goods and services, the exercise of public functions and clubs and associations[see Briefing 647 in this edition]. He drew attention to the long list of exceptions in the EA and the new Order3permitting age discrimination which sit alongside thes13 exception enabling direct age discrimination to be justified. He suggested that the first cases are likely to be in relation to age discrimination in health and social services. He went on to the much longer list of ‘bad news’ items, including the proposed4 repeals of the statutory questionnaire procedure, the liability of employers for third party harassment of their employees and wider recommendation powers of employment tribunals.

Public sector equality duty

Martin Westgate QC referred to the government’s review of the PSED; although the terms of reference have not been published, the government has indicated that there no promises as to what the recommendations will or will not contain. Anticipating possible removal of the PSED as a result of the forthcoming review, Westgate explored whether decisions by public authorities which are now challengeable on grounds of a breach of the s149 EA duty could be challenged under general principles of public law. Turning to cases decided in 2012 under s149and the earlier equality duties, he outlined some themes or guidance points which have emerged, but he emphasised that the outcomes of equality duty cases are acutely fact sensitive. Among these themes are the following:• the duty will be engaged whenever one of the elements of s149 might apply• where the authority has engaged with interested parties, the courts will not intervene if an interested party applies to challenge the decision relying on a point which they had not previously raised• where decisions are made at board or cabinet or council level the decision-makers themselves must fully address the duty, although they can rely on adequate summaries from officers• as stated in earlier cases, the duty must be discharged before the relevant decision is taken, but this does not require a full Equality Impact Assessment (EIA) at every stage. In his view, despite recent decisions, there remains some uncertainty as to the role of the court in determining whether ‘due regard’ to the elements of the duty has been given. He referred to the approach suggested by Elias, LJ in Hurley5: ‘the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors.’ Westgate queried whether this is a workable solution, since ‘due regard’ implies some evaluation of the importance of a factor, since in many cases decision-makers have not needed to consider the detailed implications, which may not always be certain at the decision-making stage.

Threats to equality rights

Karon Monaghan QC, brought together the wide range of government measures in the last 12 months which, when taken together, represent a serious threat to the protection and enforcement of equality rights. In addition to the repeals mentioned by Robin Allen and the threat to the PSED illustrated by Martin Westgate, she reminded the conference that the EA included new concepts of discrimination and equality duties which are being shelved before they had seen the light of day. These include the socio-economic duty which would have required public authorities to have regard to socio-economic inequalities when making strategic decisions, which the Coalition Government’s first Minister for Women & Equalities described as ‘ridiculous’ and said would be ‘scrapped for good’.6 Also scrapped is the prohibition of direct discrimination because of a combination of two protected characteristics, an EA provision for which many had campaigned. Referred to the decision by the Coalition Government not to introduce the minimum provision in the EA on employer pay auditing but instead to introduce a wholly voluntary framework ‘Think, Act, Report’, she queried why, 40 years after enactment of the Equal Pay Act the government thinks voluntary reporting will work now when it has not before. In her view still far less satisfactory than generally applicable mandatory pay auditing, she mentioned the government’s intention to give ETs power to impose pay audits on employers who are found to have discriminated because of sex in contractual or non-contractual pay matters. Monaghan then added to her list the government’s plans for changes to legal aid, removing from scope employment cases, closure of community based legal advice services as a result of ‘austerity measures’, imposition of fees which are not insignificant to institute and continue a claim in the ET, and major changes to the EHRC which will make enforcement of equality rights even harder; she warned: ‘rights without enforcement opportunities are no rights at all’. Monaghan stressed the significance of the government’s plans for the EHRC which, with its enforcement powers, is the ‘custodian of the EA.’ She catalogued the changes that have been imposed, including a budget cut in 2011-12 resulting in a 30%reduction in the EHRC’s work programme and from March 2012 an end to government funding of the EHRC grants programme, causing hardship in particular to local race equality bodies. Following a consultation the government announced in May 2012 its final plans including repeal of s3 of the 2006 Equality Act, which sets out the EHRC’s general duty, on the basis that it ‘creates unrealistic expectations about what an equality regulator and National Human Rights Institution (NHRI) can achieve’ 7 as well as repeal of the EHRC’s good relations duty under ss10 and 19. The helpline is to be replaced by a contracted-out Equality Advisory and Support Service.8 The GEO has agreed with the EHRC a new ‘Framework Document’ intended ‘to establish…tighter financial controls’ and to ‘increase the EHRC’s transparency to Parliament and the public about how it operates’ accompanied by what could be regarded as a threat that if ‘sufficient progress’ is not made the government will ‘seek to implement more substantial reform … could include some functions being done elsewhere or splitting its responsibilities across new or existing bodies’.9 The cuts in budget will require the EHRC to reduce it staff from 420 to between 150 - 180.

How do we fight back?

Answering the question in the title to her talk, ‘how do we fight back’ Monaghan indicated that opportunities for effecting change through domestic courts are likely to be reduced. Without the EHRC as an effective enforcer there will be a greater role for trade unions. The UN’s treaty monitoring bodies, including CERD, CEDAW and CRPD, which permit NGO submissions within their reporting procedures may recognise the inadequacy of domestic enforcement schemes. There will be questions as to whether the EHRC will still be sufficiently compliant with the Paris Principles to retain its status as a NHRI. Monaghan also suggested that the combination of cuts could raise issues as to whether the UK is compliant with the EU equality directives and EU law more generally. As she explained, the EU principle of effectiveness requires that, in giving effect to EU law which confers rights on individuals, member states must introduce the measures necessary to enable victims to pursue their claims by judicial processes and those measures must be effective in achieving the aims of the relevant EU law. As all of the EU equality directives include an ‘effectiveness’ provision, a failure to comply could form a basis for action in the domestic courts and a complaint to the European Commission. Further, following CJEU decisions, member states must ensure that domestic rules of procedure for the exercise of rights derived from EU law are not less favourable than those governing similar domestic actions, she posited that the required ET fees for some discrimination cases may be less favourable than those applicable in the county court, having regard to levels of compensation awarded. Finally referring to the government’s Equality Strategy, which individualises rights to equality, she saw a risk that if the law is marginalised as a means of promoting equality this could serve to legitimise the cuts to legal advice provision. The government’s austerity measures therefore need to be met by a strong legal framework alongside political action. The discussion that followed raised a number of issues. As the concession on ET fees for people on low income is likely to be at the level of benefit entitlement, it is likely that people in low-paid jobs will be unable to bring cases. The need for collaboration in bringing strategic cases was emphasised; the EHRC will continue to support strategic cases, although not at first instance and there is to be a ‘practitioners’ hotline’ for cases to be brought to the attention of the EHRC. Practitioners were recommended to think through the ‘what ifs’ –what are the likely legal and policy consequences if the case is unsuccessful? Often it will be better to have two or three claimants, which could strengthen the argument and the case could proceed if one claimant drops out. Regarding the PSED, at a time when resources are inadequate, does the duty simply redistribute poverty or disadvantage between competing groups? If the duty were abolished there would be no structure to which public bodies would turn their minds; the obligations under the duty are more compelling than public law concepts. To make the duty effective, authorities need to break down data to understand the implications for particular groups, for example people with different mental health disabilities. The afternoon workshops covered developments indiscrimination law in employment, on disability and new provisions on age discrimination, rights during pregnancy and maternity, the PSED, changes to employment tribunal procedure and combating employers’ use of illegal contracts or other means to avoid non-discrimination obligations.

Potentially most relevant to the theme of the conference was the workshop on ‘The impact of legal aid reforms, cuts to law centres etc.: how to support victims of discrimination, exploring different ways to collaborate to achieve success’. Steve Hynes, Director of the Legal Action Group, raised a capacity issue since it is not known how many firms will stop doing legal aid when the changes come into force in April 2013. He expects that there will be a large number of applications for judicial review to define what constitutes an ‘exceptional case’ under the new rules, with the possibility that most human rights and discrimination cases could come within ‘exceptional cases’ and thereby be eligible for legal aid funding. He is aware of law centres looking at ways to remain viable including setting up trading companies, considering using conditional fee agreements (CFAs) and insurance-funded cases, but needing to be mindful of restrictions as charities. Chez Cotton, solicitor at Bindmans LLP, described ways in which, in civil actions against the police, she used CFAs and insurance company funding; in some instances funding of cases was provided by trade unions when their members were involved. In cases involving a group of clients often the group and their supporters have raised funds to meet the costs of their case.

‘How do we keep the equality show on the road’?

The conference chair asked each speaker to suggest three answers to this question. Jonathan Rees, Director-General of the GEO, said it was important to remember how far we have come and referred to the EA as a major achievement, 95% of which has been implemented. He said the GEO was evaluating how the EA is working, concerned that small employers don’t understand the law and don’t know where to go for advice. While agreeing that the PSED was introduced with the best of intentions, with concerns that it had become a post-hoc ‘box-ticking’ exercise the review had been brought forward, with terms of reference to be announced in the next 2- 3 weeks. The government will repeal the parts of the EA which it considers overly bureaucratic. His third point was the need to ensure people can take advantage of the law and to this end the Equality Advice and Support Service has been launched. Bronwyn McKenna, Director of Organising and Membership at Unison, stressed the importance of continuing to make a case for the EA as the stakes are much higher now than in ‘good times’. Her first point was to maintain confidence in the PSED which was now at risk; public sector decision makers needed to be guided by the duty. Secondly, the refashioned EHRC must be well resourced with clear priorities. Thirdly, there needs to be a sensible approach to law making. The statutory questionnaire procedure had helped to identify cases that should not proceed. The national minimum wage made the biggest change to the equal pay gap. Now ET fees are likely to mean fewer good cases are heard. Omar Khan, head of policy research, Runnymede Trust, made three succinct points: insist that equality matters; ensure data which are used include data on racial inequalities; establish coalitions to combat discrimination and promote equality. Julian Taylor, partner at Simmons & Simmons, queried whether employers do want to keep the equality show on the road; they want the lightest touch possible. They are concerned about millions of pounds wasted on unmeritorious claims leading to redundancies and cuts to hiring. Agreeing that education is needed for smaller employers and that equality law has been responsible for changing culture, he said that many employers now support the business case for greater diversity; he expressed doubts about whether many employers are interested in the social case. Omar Khan responded saying ‘a business case could be made for slavery’ and we need to make the social case, in order to improve community cohesion and to avoid the cost of wasted talent.