In the final post of this ‘Equality Agenda in 2015’ blog-series, Professor Sir Bob Hepple QC returns to confront the issues posed by the drastic reduction in the Equality and Human Rights Commission’s (EHRC) budget. In a climate of public spending cuts and with political priorities in areas such as the NHS, Sir Hepple suggests two important measures for advancing equality that would not involve major public expenditure.
1.Equality representatives (ERs)
If an incoming Government enacts only one new piece of equality legislation it should be to strengthen the role of equality representatives (ERs) at workplaces who would be involved in equality audits and in drawing up and enforcing employment and pay equity plans. One opportunity for this kind of engagement will arise when an employment tribunal has ordered a mandatory pay audit, under s.98 of the Enterprise and Regulatory Reform Act 2013, following an equal pay breach.
There is a ready-to-hand model in the Safety Committees and Safety Representatives Regulations 1977 and the Health and Safety (Consultation with Employees) Regulations 1996. A regulation for ERs could provide that if an employer recognises a union it must consult with union-appointed ERs on equality matters, and provide them with paid time-off and training. The regulations could go further than the health and safety regulations by requiring consultation with other representatives if there is no recognised union.
This needs to be supplemented by bringing into force s.78 Equality Act, which enables a Minister to make regulations requiring private and voluntary sector employers with at least 250 employees to publish information relating to differences in pay between their male and female employees. The Coalition Government did not implement this power, arguing that its voluntary “Think, Act, Report” (TAR) programme was a sufficient encouragement to employers to be transparent about pay for men and women. However, TAR has failed to deliver the promised target of getting private and voluntary sector employers to be more transparent (EOR 251).
2. Strengthening the public sector equality duty (PSED)
In the period of austerity in which the PSED has functioned since 2008, it has played an important role in delaying or stopping cuts in public services where it has been possible to show that the authorities failed to have “due regard” to the impact on one or more protected groups. The effective enforcement of the duty by judicial review (JR) will be seriously hampered if the Criminal Justice and Courts Bill 2014–15 is enacted in its present form (at the time of writing this is a matter of “ping-pong” between Lords and Commons).
The Bill would require the High Court or Upper Tribunal to refuse permission for JR or withhold a remedy if they think it “highly likely” that the outcome for the applicant would not have been substantially different had the conduct of the public authority not occurred. The Bill also establishes a presumption that interveners in a JR would, unless there are exceptional circumstances, have to pay the costs incurred by another party as a result of the intervention. This will have a deterrent effect on interventions by the cash-strapped EHRC and other organisations like the Trade Union Congress. The EHRC’s interventions, such as in the Bracking case  EqLR 60, have had a major impact on the outcomes of JR. There are also provisions in the Bill on costs-capping orders, which risk restricting access to the courts. These changes to JR, if enacted before the election, should be reviewed by an incoming Government.
The next review of the PSED is due to take place in 2016. Among the issues that need to be considered are the extent of the duty. The present “due regard” standard means that the focus of JR applications has had to be on procedures – a “tick-box” approach – rather than substance. An incoming Government should remedy this by reformulating the duty so as to oblige public authorities to eliminate discrimination and to take proportionate steps towards the advancement of equality. This could encourage public bodies to institute real changes, which would be judged by the EHRC and the courts on the basis of the proportionality principle.
This is closely linked to the issue of engagement of stakeholders and ERs (above). The all-important function of the public duty is to involve stakeholders in formulating and implementing equality plans. The current regulations for England (unlike those for Scotland and Wales) do not require the authority to publish details of their engagement with stakeholders. They should oblige the authority to take reasonable steps to involve stakeholders.
This series is based on Professor Sir Hepple’s article in the Equal Opportunities Review (Issue 255, Feb. 2015) and presentation at the TUC/EOR Discrimination Law 2015 conference on 23 January 2015.