Equality and Discrimination: what next for equal rights?

Name: Equality and Discrimination: what next for equal rights?
Start: 2014-11-19T00:00:00+00:00
End: 2014-11-19T23:59:59+00:00

Updates from experts on developments in equality in the workplace covering: age, race, gender and disability discrimination.

19th November 2014

About the Conference

by Roger Jeary

At a time when equality is suffering from the rigours of austerity, the timing of this Conference is particularly adept and the turn-out at Unite’s Diskus Room reflected that. Conference was opened by the Chair, Nerys Owen from the Labour Research Department, who welcomed delegates and reminded them that over 100 years ago trade unions and women were demanding equal pay and today we are still seeking the same objective. She painted a dismal picture of equality progress in the current year which she described as deeply shocking. However she promised today’s event provided an excellent line up of speakers starting with Professor Aileen McColgan.

Professor Aileen McColgan, professor of Human Rights Law at Kings College, presented an overview of equality for the past year. She started by outlining some of the recent and forthcoming legislative changes in discrimination law starting with “recommendations” currently required by the Equality Act 2010. The government is seeking to abolish this power of employment tribunals to make wider recommendations following breaches of equality legislation. The Deregulation Bill going through Parliament at present will remove the power for tribunals to make wider recommendations for employers to take specific action to reduce adverse impact of matters arising from the tribunal hearing. Prof McColgan then gave a number of case examples which demonstrated how tribunals had used the current provision, in particular the case of Williams v MOD (April 2014) where 13 specific recommendations were made due to the MOD’s abject failure to follow the EHRC Code of Practice. The absence of this power in the future will inhibit the development of good practice in the workplace.

From October this year, if a tribunal finds breaches in equal pay provisions they must require an equal pay audit. Prof McColgan described this as somewhat ironical when at the same time government were removing other powers. However, the limitations of this provision were highlighted by Caroline Underhill in a later contribution to the conference. (See below).

On the issue of caste, Aileen explained that there was a need to define caste and that caste is strongly associated with “descent”. The Equality Act 2010 provides for the adoption of regulations to deal with caste discrimination but the government had not thought that there was evidence of this being an issue. The ERRA 2013 has replaced the power in the Equality Act to adopt regulations with a duty to adopt such regulations. Consultation has now taken place but it remains unclear what steps are being taken to implement any regulations. In the meantime case law has developed which defines caste as a form of ethnic origin. (Tirkey v Chandok: January 2014).

Turning to the issue of pregnancy, she gave the example of associative sex discrimination in a pregnancy case of Gyenes & Gyenes v Highland Welcome (UK) Ltd(Jan 2014). And on disability Prof McColgan asserted that it is likely that the ECJ will accept that serious obesity may be defined as a disability in the future.

Turning to post employment victimisation she told delegates that whilst the Equality Act 2010 was meant to cover this it had been badly drafted but the Court of Appeal has now determined that the intention was to cover this aspect.

The next speaker, Deshpal Panesar, from Old Square Chambers, focussed on age discrimination. He started by telling the conference that age discrimination is still occurring in the workplace. The law was long overdue when introduced in 2006. Unlike other characteristics of discrimination it affects every person in employment from the start to the finish of employment. Referring to the age demographic across the UK and rest of Europe he pointed to the likelihood of increasing age discrimination cases that this would bring.

Deshpal dealt firstly with justification. In the early stages of the legislation being applied it became evident that courts were accepting a very loose justification for age discrimination without detailed evidence. This arose originally in the Seldon case and then again in the case of Homer v Chief Constable of West Yorkshire Police. Since these cases a tighter approach had been developed on the use of justification as a defence. It must now be specific to the case and, if an alternative non discriminatory method exists, then the defence will fail. He went on to refer to the impact of cost on age discrimination. The official position was that cost should be proportionate. However, for the state, cost cannot be used as the prime reason as a defence of age discrimination (as in the Woodcock case), according to the Supreme Court in subsequent cases.

Deshpal made the point that age discrimination has now extended to provision of goods and services. Whilst not directly relevant to employment rights, this adds weight to the overall concept that age discrimination is neither acceptable nor permissible. Turning to recent cases, Deshpal referred to Clements v Lloyds Bank 2013. In this case it was found that the applicant was constructively dismissed but not through age discrimination, despite the fact that comments about his age were made during his discussion with the employer. Deshpal reminded delegates of the importance of raising the issue of age at the time if you think it is a factor in the employer’s decision.

Deshpal then pointed to the Heron v Sefton Metropolitan Borough Council [2014] case which demonstrated that the defence of a statutory authority made different treatment allowable, but in this particular case it was no longer statutory following a TUPE transfer of the worker and had become contractual, neither was it mandatory.

After the coffee break, Felicia Epstein of ATL, examined in more detail changes in the law relating to sex, pregnancy and maternity. She emphasised the key points in this area as time off for ante natal appointments, health and safety protection while pregnant , maternity leave and pay, right to return to the same job, priority for alternative employment in redundancy cases and the right to request flexible working conditions and protection from dismissal, detriment or discrimination by reason of pregnancy or maternity. This she described as a more positive area of legislation than some other areas of discrimination but cautioned that case law outcomes were not always helpful.

Turning to recent cases Felicia referred to Koehane v Commissioner of Police of the Metropolis. The EAT found that this police dog handler was discriminated against due to her pregnancy and the removal of her dog during her second pregnancy resulted in an award for damages. In a second case of Napoli v Ministero delta Guistizia 2014, the principle of exclusion from training because of maternity leave was established and amounted to a breach of Article 15 of the Equal Treatment Directive.

In a less favourable outcome, Felicia referred to Lyons v DWP Jobcentre Plus 2014 which determined that dismissal for absence due to postnatal depression was not discriminatory on the grounds that the related treatment took place after the end of her maternity leave, which constituted the protected period. On the issue of surrogacy, Felicia drew attention to two cases CD v STand Z v A Government Department and Anor 2014. In the first case the commissioning mother was found not to have been unfavourably treated as pregnancy is a requirement of the Equal Treatment Directive. In the second case, the commissioning Mother did not have a uterus so could not have a baby herself. The ECJ found that the refusal of leave was outside the scope of the Equal Treatment Directive and the Framework Directive. Also the applicant was not prevented from working therefore not covered by disability discrimination. Other cases were also covered by Felicia and can be seen on the slides in the conference papers on this website.

Referring to the new shared parental leave provisions which come into force in the UK on 5th April 2015, Felicia made the point that this could impact on previous outcomes of tribunal decisions but would depend on fathers taking up the option.

Finally Felicia briefly addressed the issue of putting motherhood on hold arising from the actions of Facebook and Apple to offer funding for egg-freezing schemes. She posed the questions of whether this puts pressure on women to delay motherhood and whether it is compatible with the general move to family friendly policies.

Questions from the floor on the issue of surrogacy brought out the fact that the UK government was introducing the provision for parents of a surrogate child to apply for paid leave providing they met the full parental requirements. This would be done through the Children and Families Act 2014.

Caroline Underhill, Head of Equal Pay at Thompsons, started the afternoon session with a look at Equal Pay Audits. Explaining the background to this, Caroline told the conference that the Regulations introduced through the Equality Act 2010 apply to any claim received by an employment tribunal on or after 1st October 2014. She pointed out that the ambition of equal pay was part of the preamble to the constitution of the ILO in 1919 and that the requirement now placed on tribunals to order such an audit when it finds a breach of the equal pay provisions is a welcome development but unlikely to have major impact. The regulations still place a number of hurdles which have to be overcome even after the equal pay claim has been won, itself no easy hurdle.

Caroline asserted that employers are reluctant to undertake audits as this may encourage employees to take claims against them. An audit must state the pay of men and women, identify the differences in pay between men and women and the reasons for these. It also has to set out its plan to avoid breaches in equal pay. She pointed to the toolkit for an audit from the Equality and Human Rights Commission as a very useful tool. The audit exercise is an investigative and analytical process and the toolkit leaves it to the parties to determine whether the breaches are justifiable. Common reasons given are market forces, length of service, starting pay, progression and pay protection, performance and other pay items such as overtime and shift payments. Audits are not simple and are not simply related to pay.

She pointed out that to get near the goal of having an audit carried out there are a number of hurdles and this is why she believes that the regulations will not have a great affect. Firstly, the individual must win an equal pay claim. Even then the exceptions to the tribunal ordering an audit include – an audit has already been carried out in the previous 3 years; if the action to avoid future breaches is clear then no audit required; if the tribunal has no reason to believe that there are other breaches; if the disadvantages of an audit outweigh the benefits; and no order will be made against micro businesses ( less than 10 full time employees) or a new business ( one that has started within 12 months prior to the tribunal claim). Caroline illustrated the weakness of the regulations by using past cases where breaches had been found but where an audit was unlikely to be ordered or, if it was, restricted in its application. She also pointed out that claimants not represented by a trade union would be unlikely to have the necessary information to persuade a tribunal to make such an order.

In turning to the terms of the order, she explained that it must say the period to be covered and the date by which it is sent to the tribunal. It will need to identify those jobs to be covered and unless a job evaluation has been carried out the tribunal will ask the employer to determine which jobs are equal. It is unlikely that the outcomes will be particularly reliable. Finally, getting to find out the outcome of the audit creates more obstacles. The tribunal examines the audit in private and determines whether it complies. If it decides it does, then the audit has to be published. If not, a hearing takes place but only the employer is invited. The employer then has the opportunity to argue that the audit does comply but the claimant (or their representative)is not able to attend this hearing.

The publication of the audit has to be on the website if the employer has one. If not they must tell the people affected by the audit where they can get a copy unless there is a potential breach of a legal obligation such as data protection. Caroline pointed out that the penalties for failure to meet the requirements of an order to carry out an audit are only a £5,000 fine providing the tribunal believes the employer can afford it!

A trade union perspective on race discrimination from Gloria Mills of Unison was the next item on the conference agenda. She began by saying that despite being an optimistic person when looking at equality she was concerned about how long it would be before our objectives were achieved. She called for a bolder approach from governments, saying that change was needed in our lifetime.

In terms of racial discrimination, privatisation and outsourcing were driving down collective bargaining coverage and employment protection. She pointed to the race gaps in employment where BME workers suffer higher unemployment rates, lower pay rates and a pensions gap made worse by the concentration of BME workers in lower paid jobs. She added that race discrimination perpetuates a low glass ceiling, low pay and fewer promotions to middle management. She told delegates that the lack of monitoring and data was a major problem masking the extent and scale of race discrimination. In looking at barriers in the workplace, Gloria highlighted the disproportionate treatment of black workers in redundancy selection, bullying and access to training as major issues for BME workers.

Gloria presented many statistics to demonstrate the levels of unemployment for BME workers and argued that bargaining on race equality was essential if the disproportionate actions of employers were to be changed. She said that the challenges facing trade unions were not insurmountable. She called for an end to the patchwork approach to inequality. She argued that we need substantive equality and a transformative approach. A new raft of legislation which had substance and bite was needed and she referred to changes in France which had introduced a proactive duty being placed on employers in the private sector to enter into collective agreements on equality with trade unions.

Gloria ended her passionate discourse on this subject by setting out a new robust approach to equal rights. She called for the protection of gains that have been made and transformational legislation to take real equality forward. Better access to justice by removal of tribunal fees, an obligation on employers to widen collective bargaining on equality and use of public procurement to ensure private contractors address inequality in their workplace, were all part of her forward looking programme. She also called for better use of the Public Sector Equality Duty to help drive forward the changes needed and for the EHRC to challenge the failings of the private sector.

The final speaker was Sally Brett, TUC, who presented the results of the TUC Equality Audit 2014 and drew conclusions as to how representative trade unions really are. She referred to the work done by trade unions over the years on equality issues which, in the last two decades, has identified the organising case for a more representative movement. She reminded delegates that the equality audit arose out of a TUC task group, the aim of which was to commit the TUC and unions to promote equality in all aspects of their work and monitor the results. The 2014 Audit represented the majority of affiliates and the vast majority of TUC membership.

The findings of the audit showed that although women were over represented in trade union membership this was concentrated in a few unionised professions such a teachers. In the majority of unions women were over represented in membership amongst ULRs and equality reps but under represented in mainstream union posts. At TUC Congress last year the highest number of women delegates ever attended but only a smaller proportion were speakers. The audit showed that migrant workers were significantly under-represented in union membership whilst the highest density for BME workers was amongst black/black British. Disabled employees were more likely to be union members than non-disabled. The audit suggested that disability monitoring was not as widely undertaken as other groups. There was no really reliable official statistics on the size of the LGBT workforce. As with disabled members, it was activists who were more likely to declare their status than ordinary members.

She reminded us that the audit showed that the UK workforce is ageing but that union membership is ageing faster. Young workers are under-represented in union membership and in every role in unions. Only 5.5% of delegates to Congress were under 35. The action being taken to address some of the issues starts with improved monitoring of membership, but still much more needs to be done. Only 5 unions were able to provide full statistics to cover all protected characteristics. Some unions are targeting groups for recruitment with young workers most likely to be targeted. Sally told delegates that this might take the form of targeted training and development; specific recruitment materials and/or establishment of networks and community outreach.

She also pointed to mentoring as an interesting development in some unions to encourage participation and activism for under-represented groups. Additionally new routes to activism for young workers were being developed as the more traditional approach was not engaging enough. Growth in equality committees was identified but she warned that this must not be allowed to lead to a silo effect on groups. A small number of unions use reserved seats but an increase has been identified in reserved seats for disabled, LGBT and young workers. Some of the largest unions are most likely to use reserve seats therefore a high number of members are covered by this (61%). The audit also showed that about half of all unions have a provision or practice for appointing or electing equality reps, representing 87% of union member workplaces.

Finally, Sally drew attention to the TUC model equality clause which has now been adopted by 75% of unions, up from two fifths a decade ago. She also pointed to the fact that 39% of unions have a rule on far-right or racist parties covering the majority of union members. Most unions have an action plan to address discrimination and advance equality.

In drawing the conference to an end, Nerys Owen thanked all the speakers and delegates for their participation.