By Professor Sir Bob Hepple QC
The achievements of the British Equality Acts (EA) 2006 and 2010 are being seriously undermined by actions of the Coalition Government at a time when recession and cuts in public services are having a disproportionate impact on women, working families, jobseekers, Black ethnic minorities, the elderly, and disabled people. The Home Secretary said 5 May 2011 that ‘it is not the intention of the Government to abolish the Equality Act’. But we are witnessing ‘death by a thousand cuts’.
Some provisions of the Labour Government’s EA are not being brought into force, such as the power of Minister to require employers with 250+ employees to publish information about the gender pay gap, and the provision which allows claims alleging discrimination because of a combination of two relevant prohibited characteristics (eg by a woman on grounds of age and gender). Other provisions are being repealed by the Enterprise and Regulatory Reform (ERR) Bill, including the duty on public authorities to have due regard to the need to reduce socio-economic inequalities, third party harassment provisions, the questionnaire procedure for obtaining information for proceedings , and the power of employment tribunals to make wider action recommendations than one limited to remedying the adverse impact on the complainant. These are part of a tranche of other deregulatory employment law measures including reintroduction of two-year qualifying period for unfair dismissal, power to impose further caps on compensation for unfair dismissal and on statutory redundancy payments, removing the right of civil action against employers for breach of health and safety regulations, and the introduction of ‘employee-owner’ contracts without employment rights. The abolition of the Agricultural Wages Board will have a disproportionate impact on women. The budget of the Equality and Human Rights Commission (EHRC) is being reduced by over 60%, its staffing cut by 72%, and its powers restricted. As from April 2013 claimants in discrimination cases in tribunals will have to pay an issue fee of £250 and a hearing fee of £950.
There seem to be three driving forces behind the attack on the infrastructure of equality:
- To appease the small business lobby which has persistently claimed over many decades that employment regulation stops them from hiring workers. This is an assertion for which no hard evidence is produced, simply hearsay. The UK claims to have the most ‘flexible’ labour market in Europe. What competitive advantage is there for a country in denying victims of unfairness and discrimination access to justice?
- To appease the anti-EU lobby by refusing to ‘gold plate’ equality law beyond the minimum obligations under EU law. The Treaty and directives on discrimination are a restraint on some of the proposed changes, but the UK has traditionally been a leader in this field and many of the EA’s provisions (eg the public sector equality duty now under review) go beyond EU law. Conservatives would like to ‘repatriate’ all the EU’s employment provisions – would this include discrimination law?
- To reduce costs to the taxpayer in a time of general budgetary restraint. This is certainly a legitimate aim but are the measures being taken proportionate? A financial penalty on employers who breach the law, as envisaged in the ERR Bill, could be used to subsidise the tribunals and reduce the fees now being imposed on claimants. The disproportionate cuts in the funding of the EHRC threaten to destroy many of the achievements of the past half-century.
In this cold climate there is a need to stress and build upon the many positive achievements of anti-discrimination and equality law, for example by campaigning for more women on company boards and in senior positions, and mandatory pay audits for all large employers, as well as using the new powers being given to tribunals to order these against employers found to have discriminated. The EHRC needs to use its remaining powers to conduct investigations and inquiries and to work with organizations to bring about change. The public sector equality duty needs to be strengthened and strategic litigation used to force the pace of change. The threats to the legal infrastructure make it all the more important to mobilise all disadvantaged groups around equality as a fundamental human right.
Professor Sir Bob Hepple QC , FBA is the Chair of the Equal Rights Trust. His most recent book is Equality: The New Legal Framework (Hart, 2011)
The failure to bring in s.78 of the Equality Act 2010 is particularly disappointing. As an alternative it appears that the government are introducing pay audits where an employer has been found to have breached equal pay by an employment tribunal. However, the impact assessment for that measure suggests it would only apply to 26 cases each year. I doubt this will do much to equalise pay.
Public funds should never be used to campaign for a change in the law. Not under any circumstances.
As for issue fees: it s a historical accident that they were not there from the beginning as they should have been. If you sue in the County Court (and are not fee-exempt) for discrimination in the provision of services you have to put your hand in your pocket, and quite right too.
In fact, an employer who is either a human or a partnership or a limited company into which a small number of people have put their all (and guaranteed its overdraft) may face a discrimination claim which could ruin them. They need representation but cannot get the costs back (in the ordinary course) if they win. The claimant, by contrast, risks nothing. It is not a level playing field and will not be until costs follow the event – and until claimants are required, if the defendant wishes, to take out insurance to cover the risk. The premium to be recoverable from the defendant if the claim succeeds, of course; but the claimant to pay for it up front. It is quite wrong that so many claimants run their cases at the risk of the defendant.
I know it will be said that many meritorious cases would not be run. But at the moment many unmeritorious cases are settled, and meritorious defences not run, and that is just as bad . . . do we all agree or do employers not have the same rights under Article 6 as employees?
This issue have been around for like longer already of which must be addressed the soonest possible time. This is just sickening, the British government should not be doing this.