Equality and regulatory reform

You may be wondering what became of the Westminster coalition Government’s Red Tape Challenge? Well, with the recent passing of the Enterprise and Regulatory Reform Act 2013, we have at least part of the answer.

The Red Tape Challenge has now prompted some significant amendment to equality law. The 2013 Act, which received Royal Assent on 25 April, deals with other important issues such as employment tribunal costs, but this article will look at the Act’s effect on equality law.

The Government has published an indicative timetable for commencement of most of the provisions. The proposals which relate to the Equality & Human Rights Commission’s functions, and those which address the European Court of Human Rights’ decision in Redfearn v UK, will be brought in on 25 June 2013. It is expected that employers’ liability for third-party harassment will be removed from 1 October 2013, and the questionnaire provisions in the Equality Act will be removed from 6 April 2014.

Caste discrimination

The current definition of race in s 9 of the Equality Act 2010 refers only to colour, nationality and ethnic or national origins. Section 9(5) of the 2010 Act gives ministers the power to add caste as an aspect of race, through secondary legislation.

In a written ministerial statement published on 1 March this year the Government stated that it would not extend protection under the 2010 Act to caste, preferring to deal with the issue informally through an educational programme.

However, following strong lobbying, the Government changed position. The wording of s 9(5) of the 2010 Act will be changed from “the Minister may” to “the Minister must”, meaning protection against caste discrimination will be added to the Equality Act.

The new amendment includes a power for the minister to review implementation of the provision after at least five years, and amend or repeal the provision on the basis of this review.

Third party harassment of employees

Our July 2012 eBulletin reported on the Government consultations on:

• proposals to repeal the prohibition on third-party harassment under s 40(2)-(4) of the Equality Act 2010;
• the questionnaire procedure for obtaining information under s 138 (see para 4 below);
• the power of tribunals to order equal pay audits (see para 5 below).

Those provisions prohibiting harassment of employees by a third party (i.e. not their employer or a colleague) will be repealed, by virtue of s 65 of the 2013 Act.

The Commission opposed this provision, suggesting that evidence of such harassment exists, although the numbers may be low, and arguing that it was premature to repeal the provision before it had had time to take effect.

Obtaining information for proceedings

The question and answer procedure set up by s 138 of the Equality Act 2010, used for gathering information on a discrimination case, will be repealed.

Again, many respondents, including the Commission, opposed this repeal. Evidence from the Commission's legal casework suggested the use of the procedure leads to a reduction in claims proceeding to the tribunal or court, and removing the procedure may place more onerous demands on businesses dealing with discrimination claims.

Equal pay audits

Section 78 of the Equality Act 2010 gives ministers a power to introduce mandatory gender pay audits for companies with over 250 employees through secondary legislation, but until now ministers had not implemented this provision.

The 2013 Act, s 98 amends the Equality Act by introducing a new s 139A, which will extend the powers of employment tribunals to require employers to conduct an equal pay audit, if the tribunal finds they have discriminated on pay.

This provision is welcome and the Commission made recommendations for how it could be implemented to provide an effective mechanism for tackling pay discrimination.

Dismissal for political opinions

The two-year qualification period necessary to claim unfair dismissal will not apply where the reason, or if more than one, the principal reason for the dismissal is or relates to the employee’s political opinions or affiliation. These provisions were brought in by s 13 of the 2013 Act specifically to address the European Court of Human Rights’ decision in Redfearn v UK, and will come into force on 25 June.

The court held in that case that the UK had failed to meet its positive obligations to protect the right to freedom of assembly and association under article 11 of the European Convention on Human Rights, because a person, with less than one year service (as it was at the time), who was dismissed by his employer because of his political beliefs (in that case membership of the BNP) was unable to bring a claim for unfair dismissal. See the article by Laura Hutchison in the EHRC Scotland e-Bulletin March 2013.

Equality & Human Rights Commission

A set of the 2013 Act’s provisions relate to reform of the statutory functions of the Equality & Human Rights Commission and follow Government consultation in March 2011. The amendments made by the 2013 Act to the Commission’s powers and duties were, though, fewer and less significant than first proposed in the original bill.

No repeal of s 3: EHRC general duty

One part of the 2013 Act that did get some attention in the media during the passage of the bill was the proposal to repeal the Equality & Human Rights Commission's “general duty” in s 3 of the Equality Act 2006, and this coverage seems to have brought with it some confusion over which particular duty was under threat by the bill.

In fact, following opposition from peers and advice from the Commission that the case had not been made for repeal, the Government agreed not to repeal s 3, but it’s worth looking at why the confusion arose.

The general duty under s 3 sets out the broad societal aims the Commission should have a view to in exercising its other statutory functions. That duty requires the Commission to exercise its functions “with a view to encouraging and supporting the development of a society in which– (a) people's ability to achieve their potential is not limited by prejudice or discrimination; (b) there is respect for and protection of each individual’s human rights; (c) there is respect for the dignity and worth of each individual; (d) each individual has an equal opportunity to participate in society; and (e) there is mutual respect between groups based on understanding and valuing of diversity and on shared respect for equality and human rights”.

So that duty will remain.

In a separate consultation the Westminster Government is reviewing the public sector equality duty. That is a different duty. The public sector equality duty was brought in by s 149 of the Equality Act 2010 and requires all public authorities, in the exercise of their functions, to have due regard to the need to: (a) eliminate unlawful discrimination, harassment and victimisation and other prohibited conduct; (b) advance equality of opportunity between people who share a relevant protected characteristic and those who do not; (c) foster good relations between people who share a protected characteristic and those who do not.

That duty is often referred to as the “general equality duty”, and there are also additional specific duties on certain listed public authorities, aimed at helping those listed authorities in their performance of the public sector equality duty. It is clear that some of the reporting of the proposals in the 2013 Act to repeal the “general duty” on the Commission under s 3 of the 2006 Act, has mistakenly confused it with the public sector general equality duty.

So, to be clear, the Commission's “general duty” in s 3 of the Equality Act 2006 remains. The government’s review of the public sector equality duty under s149 of the 2010 Act, though, is still ongoing and is expected to produce a report in July.

Repeal of EHRC good relations duty

The Equality & Human Rights Commission also has powers and duties under ss 10 and 19 of the Equality Act 2006, to promote good relations between and within groups, defined as those who share a protected characteristic. These powers and duties are repealed by the 2013 Act.

However, the Commission continues to have its own obligation to give due regard to good relations, as a public authority, under the public sector equality duty. As just mentioned, that duty is currently subject to a separate Government review.

Repeal of EHRC duty to monitor progress

The Government has also amended the Commission's duty in s 12 of the Equality Act 2006, to monitor and report on progress towards equality, under which the Commission produced its Triennial Review in 2010. Instead, the Commission will be required to report on progress against its specific equality and human rights functions (in ss 8 and 9 of the 2006 Act), rather than against the s 3 general duty.

In addition, the Government has extended the reporting cycle from three to five years, with the Commission's first quinquennial review due to be produced by the end of 2015.

Repeal of EHRC power to make arrangements to provide conciliation

The Equality Act 2006 gave the Commission several enforcement powers, including a conciliation power in s 27. The Government has now repealed this provision through the 2013 Act.

Business view

When the coalition Government initiated the Red Tape Challenge it said it was to help business. The changes proposed by the 2013 Act as a means of achieving that are significant, and will have a substantial impact on individuals pursuing discrimination claims.

It is interesting then, to note the findings of the report from the Government’s own Equalities Office issued during the final stages of the 2013 Act’s passage, which dispelled the myth that businesses believe the Equality Act adds to unnecessary red tape (Evaluation of the Implementation of the Equality Act 2010: Report 1 – Organisational Approaches to Equality).

In the report, feedback from the business community showed that 90% of businesses surveyed support equality in the workplace, as a benefit rather than a bureaucratic burden.

The results also revealed that 76% of businesses saw reputation as an important driver of business behaviour in relation to equality, and only 6% of employers had experienced complaints or grievances.

Further proposal

It is also worth noting that among the measures announced in the recent Queen’s Speech was a Deregulation Bill to reduce the burden of unnecessary legislation on businesses. The bill will, among other things, remove employment tribunals’ power under the Equality Act 2010 to make wider recommendations in successful discrimination cases. So the impact of the Red Tape Challenge on equality law continues.