Experts share concerns over government changes to equality law

Submitted by sglenister on Thu, 31/01/2013 - 16:02

31 January 2013

By Janet Newsham

Janet Newsham reports on the IER's Equality and Discrimination Conference in Liverpool.

Yesterday, I sat pen in hand at Liverpool's Adelphi Hotel, anticipating an interesting conference, and I was certainly not disappointed. Not only was the Institute of Employment Rights' (IER) Equality and Discrimination event interesting, but it was also useful and the contributions skilfully analytical and thought provoking.

On welcoming delegates and opening the conference, Director of the IER Carolyn Jones asked what is to happen to the Equalities agenda and those who face injustices and discrimination in the context of the broader cuts by the Government. The seven expert speakers who took the podium during the one-day event each gave their own view of the answer to this question, providing insights on equality law from several different angles.

Brian Doyle, Regional Employment Judge, Employment Tribunals (ETs), North West Region provided a critique of the recent changes being made to ETs. He reminded us that the number of ET claims remains at a historic high, which he attributed to the recession, insolvencies and also the shrinking role of Trade Unions. He explained how the increased number of individuals self representing was becoming a big issue at ETs. Other changes for ETs include sit alone judges, and the diminishing role of lay members on ET panels - an issue that fired up a lively debate amongst the audience. Jo Seery advocated a return to Industrial Tribunals – a move, or at least a debate, I would welcome.

The biggest change to be brought in at ETs is going to be the introduction of fees, Brian Doyle explained. Charges will be imposed for simply submitting a claim, while there will be further expenses for a hearing. For many workers, these fees will be prescriptive and even with a remission system (on which no details are available as yet) the fees are likely to discourage workers seeking justice through ETs. Other forthcoming changes include the introduction of a conciliation step before formal hearings and a new set of rules of procedure for ETs.

What is becoming clearer is that the role of Trade Unions is set to become of increasing significance if people are priced out of the justice system. There is a need for a review of the ET system to address this 'justice divide'!

Jo Seery from Thompsons Solicitors provided a comprehensive review of 'Justifying Direct Age Discrimination'. In introducing the subject she reminded us that this piece of discrimination legislation is unique because it applies to all of us. She explained the legislation in the context of the abolition of the Default Retirement Age and provided details of case law, which outlined the current decisions and considerations. She explained the significance of the Seldon case and other European cases, stating that courts will need to consider legitimate social policy aims. The complexity of the decisions and the relevant information which is considered appropriate in each case makes not only interesting reading, but creates a situation where both employers and employees have an opportunity to challenge and influence retirement age. There is still some hope and scope for Trade Unions to organise and challenge this.

Felicia Epstein from Pattinson & Brewer Solicitors presented an overview of sex discrimination, maternity and pregnancy rights. She raised concerns about the withdrawal of the Equality questionnaire because it provided information which can be used to help employees decide whether or not they should pursue a claim. She also argued the Equality Act provided an opportunity for women to pursue claims which they would not have otherwise been able to if they were not defined as an employee in the Employment Relations Act. She also highlighted court cases which have led to extensive debate about the exact date of the pregnancy, and although there have been cases which have determined that men cannot claim for pregnancy-related association, this has still not been tested under the Equality Act, only the Sex Discrimination Act.

Margaret Prosser was a breath of fresh air in the debate on the future of the Equality and Human Rights Commission (EHRC). I remember her of old as the Deputy General Secretary of the Transport & General Workers Union and her formidable speeches at the TUC. As always, her passion for working people and sense of reason shone throughout her presentation. She spoke candidly about the role of the EHRC and her concerns about the Government cuts and the effect they would have on society, both in Britain and internationally. She explained that the Government have been determined to reduce the role, cost and accountability of the Commission, and to control the people who represent it. Although the Commission had produced a number of excellent reports and challenged inequality at every level, its role is now being narrowed. Finally she warned us that on equality issues we have got to keep our foot on the accelerator and that the changes to the EHRC are very worrying and we need to be very aware of the political agenda behind them.

Vicky Phillips from Thompsons Solicitors provided an illustrated overview of Equalities in the Age of Austerity. She began by explaining that those who are most disadvantaged in society are the most affected by the public sector cuts and their current situation is no different to what it was in 1979. She reminded us that Cameron's lifestyle is not one shared by most and that his concerns in Europe are about the employment rights and equality rights that protect us. She compared the government to kids in a sweet shop, quickly gorging on the 1p candies but keeping an eye on the top shelf ones. Her view on the ET changes was that they amounted to cheque book justice. They even introduced 'protected characteristics', which could enable employers to be discriminatory. Vicky was also deeply concerned about those parts of maternity and paternity leave which are not protected by EU legislation. She concluded by saying that workplaces are in danger of returning to the master and servant role, where the most vulnerable were at a higher risk. However, trade unions are likely to rise to this challenge.

Muriel Robison put forward the argument that we are still able to claim for combinations of protected characteristics in discrimination cases because of case law, despite the dropping of Section 14 on combined discrimination: dual characteristics in the Equality Act, by this Government.

Finally Sally Brett from the TUC spoke about the The Equality Agenda from a TUC perspective. She started by saying this Government's attitude to equality is no surprise because the Equality Strategy of Government clearly states that it does not recognise the disadvantage of particular groups, and that they want to deregulate the public sector.

Sally argued that the Government have ignored the majority of responses to their changes to equality legislation, and dismissed evidence the TUC has submitted. She spoke about the EHRC losing connection with those that most need their help because of the changes, which include the abolition of the Commission's helpline and the fact they are recruiting from within the civil service which ensures that those candidates are from a culture of serving Government. She explained that there is a real concern that the EHRC will lose its status as an International Independent Human Rights Organisation because of the cuts and the policies which challenge its independence from Government. Finally she appealed to us to read the report 'Two steps forward, one step back!'.

This is only a snapshot of the day’s event, and only provides a flavour of the discussion, information and imparted knowledge we were privileged to receive.

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