Commission Update 2007
October 2007
A new era of equality
To celebrate the launch of the new single equality commission, this edition of Working Times will give an overview of the commission's aims, powers and remit. We will also take a look at the current state of discrimination law and consider what changes the next five years or so can be expected to bring?
Single Equality Commission
The Equality and Human Rights Commission (EHRC) opened on 15 October 2007 with the aim of making Britain a fairer, more equal place to live. The Commission, which was originally expected to be called the CEHR, was established by the Equality Act 2006 as a single equality body with responsibility for challenging discrimination across society. It replaces the Commission for Racial Equality, the Disability Rights Commission and the Equal Opportunities Commission. Trevor Phillips, chair of EHRC said: "The previous Commissions have made enormous advances, changing Britain into a fairer place. But much remains to be done."
The EHRC has identified its vision as "A society built on fairness and respect. People confident in all aspects of their diversity' and to make that vision a reality it aims to "reduce inequality, eliminate discrimination, strengthen good relations between people, and promote and protect human rights."
A survey released to mark the EHRC's launch reveals the scale of the challenges it faces. The survey found that, despite the fact that discrimination in the workplace has been prohibited for over 30 years:
46% of Britons say they have faced unfair discrimination
When asked which type of discrimination is most prevalent 66% said ethnic background, 50% said sexual orientation, 49% said age, religion or belief and 48% said disability
74% said that most discrimination occurred in the recruitment process or within the workplace
Of those who experienced discrimination 73% did not make a complaint.
The EHRC's remit and powers
The EHRC has a wide remit and similar powers to those held by the legacy commissions. In summary it will:
Provide information and practical guidance to employers, the voluntary and public sectors, and to individuals
Monitor equality legislation and make recommendations for changes to that legislation
Produce Codes of Practice which, whilst not binding, must be considered in proceedings
Conduct enquiries looking at the cause of discrimination/discrimination in particular sectors
Assisting with, conciliating and intervening in disputes which relate to the equality legislation
Investigate and report upon suspected breaches of the anti-discrimination legislation. Any such report can be considered by a court or tribunal
Issue notices requiring preventative action to be taken. A party in receipt of such a notice can enter into a binding agreement to voluntarily undertake the recommended steps Alternatively, the EHRC can obtain a court order requiring the party to take preventative action or an injunction to prevent a person from committing an unlawful act of discrimination.
For more information, see the EHRC website: www.equalityhumanrights.com
Current state of discrimination law
Britian has well developed anti-discrimination legislation. There is a wealth of laws which protect workers against discrimination because of their gender, ethnic background or nationality, age, sexual orientation, religion or belief, marital status, gender reassignment, pregnancy or childbirth, part-time or fixed-term worker status.
However, the sheer amount of anti-discrimination legislation has attracted criticism. Much of the legislation was introduced piecemeal and this has added to its complexity. Whilst some common themes emerge, what does and does not constitute discrimination varies between the various sets of legislation. For example, direct sex and race discrimination can only be justified where it relates to a genuine occupational requirement, whereas direct age discrimination can be objectively justified if it 'is a proportionate means of achieving a legitimate aim'. This muddled minefield of legislation makes it very difficult for employers, particularly smaller employers with no dedicated HR function, to understand what they can and cannot do.
As a result of those concerns there have been calls for all forms of discrimination to be brought together under one piece of umbrella legislation - a Single Equality Act.
Single Equality Act
Aware of these issues, the Government began consulting upon proposals for a Single Equality Act during the summer. The consultation closed on 4th September 2007 and we are currently awaiting the Government's conclusions. However, critics are already complaining that the consultation did not go far enough. It was clear from the consultation document that the Government did not intend to harmonise everything; that certain key differences would be retained. This has led some to question: should the Single Equality Act harmonise everything?
Under the current proposals many anomalies will remain. For example:
Discrimination based upon perception/association - it is currently unlawful to discriminate against a person because the discriminator perceives that he or she is of, or because he or she associates with someone of, a particular race, sexual orientation, religion or belief. Discrimination on the basis of perceived age is also unlawful, but not on the basis of association. Discrimination on the basis of perception or association are not unlawful in relation to disability, sex or gender reassignment. This means:
It is not illegal to refuse to employ a woman because you think she might be disabled (although, in fact, she is not), or to reject a man because he has a disabled child who you think might distract him from his duties You can deny a promotion to a woman because you disapprove of her relationship with an older man, or refuse to give a man a pay rise because you mistakenly think he is transsexual.
Equality duties - public authorities have to manage general and specific duties to promote equality in relation to race, disability and gender, where each duty is framed in different terms. No such duties exist in relation to sexual orientation, religion or belief and age. There does seem to be support for the harmonisation of duties covering race, disability and gender, but there is rather less enthusiasm for including sexual orientation, religion or belief and age in that single equality duty.
Only time will tell whether the Government ultimately listens to its critics and decides to fully harmonise the equality legislation into a Single Equality Act but, whatever happens, the coming years will require line managers and those with responsibility for personnel management to keep abreast of yet more legislative changes.
If you are suffering from Discrimination, BERKELEY SOLICITORS CAN HELP.
Call us on 07000 269 252 that 07000 ANY CLAIM and speak to Adrian or Craig. |
