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PREVIOUS SPEAKERS:

Professor Sir Bob Hepple QC FBA

ILS Conference, Oxford, September 2004

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Title: "Equality: A New Framework - Progress Report"

Recommendations in Equality: A New Framework- Report of the Independent Review of the Enforcement of UK Anti-Discrimination Legislation (Hart Publishing, 2000) by Bob Hepple QC, Mary Coussey and Tufyal Choudhury

Recommendation 1

- There should be a single Equality Act in Britain

- This Act should be supplemented by regulations and by regularly up-dated codes of practice on specific subjects

- The Act and other documents should be written in plain language so as to facilitate comprehension, and should be available in forms which take account the needs of disabled people

The Equality Bill[HL] introduced by Lord Lester of Herne Hill QC (2R on 28 February 2003, HL Deb vol 645,cols 525-594 went through all its stages in the HL. Lord McIntosh of Haringey, replying on behalf of the Government said:

Over 200 MPs signed an early day motion calling on the Government to introduce s single Equality Bill. However, the Government chose to introduce separate new strands of anti-discrimination legislation when transposing the EU directives, and the White Paper, Fairness for All: a New Commission for Equality and Human Rights, DTI, May 2004,Cm 6185, proposes that the CEHR should operate within the current legislative framework in which different levels of protection are provided to different groups (e.g.unlike race, gender and disability legislation, those on sexual orientation/belief apply only to employment and vocational training.)

In Northern Ireland, the Office of the First Minister and Deputy First Mninister has produced a Discussion Paper (2004) on options for a single Equality Bill, stating that ‘this will provide NI with a clear and concise anti-discrimination and equality law in one legal instrument. This will make it easier for those who need to establish what the law says. It will remove, where practicable, inconsistencies in protection that exist between grounds in much of the current legislation.’

In 2000 there were 30 Acts, 38 statutory instruments, 11 codes of practice, and 12 EC directives on discrimination in Britain. In 2004, there are about 34 Acts, 50 SI s, 14 codes of practice ( including the 102-page CRE Consultation Draft Statutory Code of Practice on Racial Equality in Employment,May 2004), and 14 EC directives. Yet more separate legislation making it unlawful to discriminate on grounds of age is due to come into force in 2006. The Lester Bill has 94 clauses and 8 schedules in 111 pages.

The European Commission has published a draft Directive on gender discrimination intended to consolidate, simplify, modernise and improve EU law relating to equal pay and gender discrimination in a single text (see 132 EOR,p.6

Recommendation 2

The framework should be based on the following five principles:

- the goal of legislation and other measures is to eliminate unlawful discrimination and to promote equality regardless of sex, race, colour, ethnic or national origin, religion or belief, disability, age, sexual orientation, or other status

- there must be clear consistent and easily intelligible standards

- the regulatory framework must be effective, efficient and equitable, aimed at encouraging personal responsibility and self-generating efforts to promote equality

- there must be opportunities for those directly affected to participate, through information, consultation and engagement in the process of change

- individuals should be free to seek redress for the harm they have suffered as a result of unlawful discrimination, through procedures which are fair, inexpensive and expeditious, and the remedies should be effective

See Somjee v UK [2002] IRLR 886 (EctHR) which reiterated the obligation on the Government under art.6(1) ECHR to organise the judicial system in a way which provides fair and expeditious procedures in a case where there had been ‘a lamentable history of delay’ (discrim claim > 8yrs; victimisation claim > 7yrs and unf dism >8yrs, para 73):

• ‘The reasonableness of the length of proceedings is to be assessed in the light of the circs of the individual case, regard being had to the criteria laid down in the Court’s case law, in particular the complexity of the case, the parties’ conduct and that of the competent authorities, and the importance of what was at stake for the applicant in the litigation’ (para 67)

The Employment Tribunal System Taskforce Report (July 2002) made 61 recommendations. Do the new Tribunal Regulations meet these recommendations and also satisfy the criteria in our recommendation?

The Government has published a White Paper to create a unified tribunal system and make procedures more user-friendly: Transforming public services: complaints, redress and tribunals, see www.dca.gov.uk/pubs/adminjust/adminjust.htm.

Recommendation 3

- The concept of direct discrimination should be interpreted in accordance with the overall purposes of the legislation, as set out in Recommendation 8 below

- Adverse treatment of a woman for a reason related to pregnancy or childbirth should be a substantive wrong without any requirement for comparison with the treatment of another person

This is still not met in case law which continues to require comparison:

E.g. Hall v Woolston Hall Leisure Ltd [2000] IRLR 576 (CA)

Patefield v Belfast City Council [2000] IRLR 664 (NI CA)

Alabaster v Woolwich Plc and SoS for Social Security [2002] IRLR 420(EAT)

Gus Home Shopping Ltd v Green and McLaughlin [2001] IRLR 75 (EAT)

TeleDanmark v Handels-OG [2001] IRLR 853 (ECJ)

Recommendation 4

- Victimisation should be defined as any adverse treatment of a person (including an ex-employee) by reason that such person has brought proceedings, given or collected evidence or information, made an allegation, supported another person, or done any other act under or by reference to the equality legislation; it should not be necessary to show that the person victimized has been less favourably treated than in those circumstances other persons are or would be treated.

-This recommendation is not met in the Sexual Orientation Regulations 2003 or Religion or Belief Regulations 2003

- still required to show less favourable treatment compared another: see

Recommendation 5

- The definition of discrimination should make it clear that intention or conscious motivation is not a necessary ingredient

Recommendation not met in Sexual Orientation regulations 2003 (regulation 3), or Religion or Belief Regulations 2003 (regulation 3)

- For the avoidance of doubt, the legislation should declare that specific knowledge of the disability as such or as to whether its material features fall within schedule 1 of the DDA, is not a necessary ingredient in establishing discrimination on that ground

Introduced into DDA via 2003 Amendment regulations, see new s4A(3); case law before that also recognised knowledge was not essential: e.g.London Borough of Hammersmith and Fulham v Farnsworth [2000] IRLR 691 (EAT);

Callagan v Glasgow City Council [2001] IRLR 724 (EAT); Quinnv Schwarzkopf Ltd [2002] IRLR 602 (CS).

Recommendation 6

- Indirect discrimination should be defined as the application of an apparently neutral provision, criterion or practice which disadvantages a substantially higher proportion of the members of a "designated group" in comparison with other groups unless that provision, criterion or practice is appropriate and necessary and can be justified by objective factors unrelated to any of the grounds of unlawful discrimination

Definition used in Sexual Orientation Regulations and Religion or Belief Regulations (regulation 3) different to above recommendation. The RRA has added an alternative test of ‘particular disadvantage when compared with other persons’ not in that group (s1(1A)), in addition to the previous test of considerably smaller proportion of people within a particular racial group being able to meet a requirement or condition. The SDA Regs 2001 (reg.3) apply yet another test in employment cases (while keeping the ‘requirement or condition’ approach for most non-employment cases): applying ‘ a provision,criterion or practice’ which ‘would be to the detriment of a considerably larger proportion of women than men’ etc.

- The concept of indirect discrimination should be applied to all prohibited grounds of discrimination, including disability

- Concept included in regulation 3(1)(b) Religion or Belief regulations 2003 and 3(1)(b) Sexual Orientation Regulations 2003

- Not introduced into DDA via 2003 regulations or in Disability Bill 2004 (new s21F)

- A provision, criterion or practice should not be regarded as appropriate and necessary in the case of indirect discrimination which disadvantages disabled persons or persons of a religious group, unless the needs of that group cannot be reasonably accommodated without causing undue hardship on the person responsible for accommodating those needs, having regard to factors such as financial and other costs and health and safety requirements

- Partially introduced in Disability Bill re public authorities duties, see new s21D(4)(c) and (d)

- The "designated groups" should be those covered by the legislation (see below, Recommendation 14)

Recommendation 7

- Anti-discrimination measures should be augmented by positive duties to promote equality which do not depend upon proof by individual complainants that a respondent is "at fault"

- Positive duties should be aimed at securing fair participation of under-represented groups in the workforce, fair access to education, training, goods, facilities, and services and a fair distribution of benefits

A positive duty on public authorities to promote race equality was introduced in the RRA (Amendment) 2000 in the wake of the Stephen Lawrence Inquiry. Similar duties exist in respect of all discrimination strands in NI, and are proposed with respect to disability in the Disability Bill 2004. See generally, Colm O’Cinneide, Taking equal opportunities seriously: the extension of positive duties to promote equality (Equality and Diversity Forum, 2003).

Recommendation 8

The purposes of the legislation should be explicitly stated in the legislation and should be defined as:

- The protection of the dignity, autonomy and worth of every individual

- The promotion of equality and the elimination of discrimination so that no person should be denied opportunities or benefits for reasons related to one of the prohibited grounds

- The application of the principle of equality in a way which does not required a reduction in the level of protection already afforded to any person

- The identification and removal of barriers against persons in designated groups

- The encouragement of positive policies and practices and such reasonable adjustments as will ensure that persons in designated groups achieve fair participation in employment, fair access to education, training, goods, facilities and services and a fair distribution of benefits

- The promotion of good relations between persons of different racial or religious group or belief, age, marital status or sexual orientation, between men and women generally, and between persons with a disability and persons without

Recommendation 9

- The general defence of justification of discrimination in employment in the DDA should be amended so as to permit discrimination only on specified rational grounds such as that the individual would not be able to perform the essential functions of the job, with or without reasonable adjustment, or to protect the health and safety of any person, including the disabled person

No change following amendment and pensions regulations 2003 (see s3A(3)); but note that s21D Disability Bill 2004 lays down specific conditions for justification of discrimination in respect of public authorities.

Recommendation 10

- The specific lists of genuine occupational requirements in the SDA and RRA should be replaced by a general defence that the essential functions of the job required it to be done by a person of a particular ethnic or national origin, religious or other belief, sex or age

General defence of GOQ added to list of specific exceptions in RRA, s4A

- This should be amplified by examples given in a code of practice

- s4A RRA (re GOQ) is discussed in the CRE consultation draft, only one example is given; very little amplification of the concept is provided (see 2.34)

Recommendation 11

- The proposals by the Disability Rights Task Force in relation to the statutory duty to make reasonable adjustments should be implemented

See e.g. Fu v London Borough of Camden [2001] IRLR 186; Mid Staffordshire General Hospitals v Cambridge [2003] IRLR 566: s6(1) duty incorporates making a proper assessment of what is needed to eliminate a disabled person’s disadvantage; Archibald v Fife Council ,House of Lords 1 July 2004, 132 EOR 24:S6(1) duty may extend to affording disabled person a suitable vacant position, in order to remove the disadvantage caused by disability.

Recommendation 12

- There should be a general exception for positive action intended to provide specific advantages for persons from designated under-represented groups to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers

Exceptions are provided in regard to sexual orientation (regulation 26, 2003 Regulations) and religion or belief (regulation, 25 2003 Regulations)

- Codes of practice should give examples of such positive action taking into account current models of training

See e.g. CRE consultation draft, para 2.26-2.34 and 3.55-3.63 re RRA

- For this purpose the "designated groups" should be racial or ethnic groups, women and disabled person

Recommendation 13

- There should be a statutory tort of harassment and bullying at work

- The elements of this tort should: 1) the act or other conduct is unwelcome and offensive to the recipient; 2) it could reasonably be regarded as creating an intimidating, hostile, offensive or humiliating work environment; and 3) the recipient has suffered or is likely to suffer some harm whether physical, psychological or emotional (including anxiety and injury to feelings)

-Harassment has been added to the RRA (s3A via 2003 amendments). The third part to the recommendation is most notably missing, instead there is a reasonableness requirement added (s3A(2))

- exactly the same wording is also used in Regulation 5 of both the Sexual Orientation regulations and Relgion or Belief Regulations

- a similar harassment section has been added to the DDA (now s3B) via Amendment Regulations 200

Recommendation 14

- The prohibited grounds of discrimination should be race, colour, ethnic or national origin, sex, gender reassignment, marital status, family status, sexual orientation, religion or belief, disability, age, or other status

-For sexual orientation discrimination see Employment Equality (Sexual Orientation) Regulations 2003. For religion or belief see Employment Equality (Religion or Belief) Regulations 2003.

For gender reassignement: A v CC of West Yorkshire Police [2003] IRLR 32 (CA

Recommendation 15

- Legislation against age discrimination should apply to all persons aged 18 or over

- There should be research and consultation on the question of prohibiting compulsory retirement ages

- The guiding principles for specific exceptions should be that they are objectively justified by a legitimate aim and are appropriate and necessary to the achievement of that aim

Legislation is expected to come into force in 2006. Details remain uncertai

Recommendation 16

- Legislation should be framed so as to prohibit discrimination on the specified grounds, without the need to show that the victim belongs to the protected grou

Recommendation 17

- The recommendations of the Disability Rights Task Force on the definition of disability and disabled persons should be implemented

- s12 Draft Bill 2004 inserts new s6A in Sched 1 re meaning of disability persons with cancer, HIV infection or MS with only certain prescribed exceptions

See e.g. Kapadia v London Borough of Lambeth [2000] IRLR 699 (CA); Abadeh v British Telecommunications [2001] IRLR 23 (EAT); Rugamer v Sony Music Entertainment/McNicol v Balfour Beatty Rail Maintenance [2001] IRLR 644 (CA) ; College of Ripon and St John v Hobbs [2002] IRLR 18; Morgan v Staffordshire University [2002] IRLR 190 (EAT); Mowat-Brown v University of Surrey [2002] IRLR 235 (EAT); Kirton v Tetrosyl Ltd [2002] IRLR 840 (CA); Power v Panasonic UK [2003] IRLR 151 (EAT

Recommendation 18

• The legislation should declare for the avoidance of doubt that discrimination on the grounds of membership of Roma, gypsy or Irish traveller communities constitutes discrimination on grounds of race or ethnic origin

See e.g. Hallam v Cheltenham Borough Council [2001] IRLR 31

Recommendation 19

- The recommendations of the Human Genetics Advisory Commission on genetic discrimination should be reviewed no later than 200

Recommendation 20

- The legislation should specifically prohibit discrimination on grounds of marital status and family status

See e.g. CC of the Bedfordshire Constabulary v Graham [2002] IRLR 239 (EAT);

KB v NHS Pensions Agency [2004] IRLR 240 (ECJ

Recommendation 21

- The legislation should prohibit direct and indirect discrimination on grounds of religion or belief

- see regulation 3 Employment Equality (Religion or Belief) Regulations 2003

- There is no need for a statutory definition of "religion or belief" bearing in mind that practices which are contrary to human rights, as guaranteed by the HRA, will not be lawful

- A definition is provided in Regulation 2(1) Employment Equality (Religion or Belief) Regulations 2003

- Employers, schools and other institutions should be under a duty to make reasonable adjustments to accommodate a person’s religious observance or practice provided that this can be done without undue hardship on the employer’s business or the conduct of the school or other institution

No specific mention of these issues but the Regulatory Impact Assessment for the 2003 regulations does note the need to consider whether needs regarding observances and practices are being provided for

- There should be specific exceptions for employment for the purposes of organised religion (1) as a cleric or minister of that religion, or (2) in any other occupation where the essential functions of the job require it to be done by a person holding or not holding a particular religion or belief…

see regulation 7(2) religion or belief regulations

- or (3) where employment is limited to one sex or to persons of a particular sexual orientation, or who are not undergoing or have not undergone gender reassignment, if the limitation is imposed to avoid offending the religious susceptibilities of a significant number of its followers

- see Regulation 7(3) Sexual orientation regulations

- additional exception in regulation 7(3) religion or belief regulations re organisations with religious ethos where the religion/belief is a GOR

- A similar exception should apply to an authorisation or qualification for purposes of an organised religion

- it is unlawful for a qualifications body to discriminate against a person (regulation 16 Religion or belief regulations). There is no exception regarding organised religion.

Recommendation 22

- Legislation should prohibit direct and indirect discrimination on grounds of sexual orientation

- Employment Equality (Sexual Orientation) Regulations 2003, regulation 3

- There should be specific exceptions for (1) employment for purposes of a private household; (2) employment where the holder of the job provides persons with services promoting their welfare, and those services can most effectively be provided by a person of a particular sexual orientation; (3) accommodation in small premises provided by a resident owner or occupier; and (4) membership of small private associations

- Exceptions are currently only re genuine occupational requirements and religious convictions of employer (regulation 7)

- Distinctions between same-sex partners and unmarried different-sex partners should be treated as direct discrimination on grounds of sexual orientation, but distinctions between same-sex partners and married different-sex partners should not be treated as either direct or indirect discrimination on grounds of sexual orientation

- no mention of this in 2003 regulations; but see Civil Partnerships Bill

Recommendation 23

- There should be a human rights commission for Britain the functions of which will include the review of legislation, scrutiny of draft legislation, giving advice and assistance to individuals, conducting investigations and inquiries, giving guidance to public authorities, and generally promoting human rights including equality

- There should be a separate single equality commission for Britain covering all grounds of unlawful discrimination

- The internal structure of the equality commission should be the subject of discussion and consultation after the decision has been taken to merge the existing commissions

-The DRC should not be included initially in a merged commission, but this should be reviewed after five years

-The White Paper, Cm 6185 (May 2004) proposes a single Commission for Equality and Human Rights.; see too House of Lords and House of Commons Joint Committee on Human Rights, Commission for Equality and Human Rights: Structure Functions and Powers, 11^th Report Session 2003-2004, HL Paper 78.

Recommendation 24

There should be a duty on specified public authorities in the exercise of their functions to eliminate unlawful discrimination and to have due regard to the need to promote equality

- between persons of different racial groups, religious belief, age, marital status or sexual orientation

- between men and women generally

- between persons with a disability and without

- between persons with dependants and persons without

See under Recommendation 7 above

Recommendation 25

Every specified public authority should be required to collect and publish such information as is appropriate and necessary to facilitate the performance of its duty to promote equality, and to publish an equality scheme, setting out its arrangements-

- for assessing its compliance with the duty and for consulting on matters to which the duty is likely to be relevant

- for assessing and consulting on the likely impact of policies adopted or proposed to be adopted on the promotion of equality

- for monitoring any adverse impact of policies adopted by the authority on the promotion of equality, and in doing so to have regard to the aims of the policy, measures capable of mitigating any adverse impact, and alternative policies which might better achieve the promotion of equality

-See under recommendation 7 above

Recommendation 26

The duty should apply

- in respect of all their functions, including procurement and employment, to government departments, the Scottish Administration, the National Assembly of Wales and its subsidiaries, police authorities, health authorities and boards, NHS trust and primary care trusts and local education authorities

- in respect of specified functions to such other public authorities as the Secretary of State may designate, after consultation

See under recommendation 7 above

Recommendation 27

- Performance of the duty should be measured through performance management frameworks which use a basket of indicators on equality showing progress towards fair participation and fair access over a period of time

- Inspection and audit should be carried out, wherever possible, by those bodies which have general inspection and audit functions in the public sector

- The commission should have residual power to issue a compliance notice, after allowing the authority an opportunity to make representations, requiring evidence of compliance to be produced within a specified time

- The public authority should be able to appeal against the notice to a tribunal

- In the event of non-compliance, the commission should be able to apply to a tribunal for an order requiring the authority to comply

See under recommendation 7 above.

Recommendation 28

-- Every employer (including an associated employer) with more than 10 employees should be required to conduct a periodical review (once every three years) of its employment practices (affecting recruitment, training, promotion or redundancy) for the purpose of determining whether members of ethnic minorities, women and disabled persons, are enjoying, and are likely to continue to enjoy, fair participation in employment in the undertaking

- If the employer finds, following such a review, that there is significant under-representation of any group, it should be under a duty to draw up and implement an employment equity plan to identify and remove barriers to the recruitment, training and promotion of members of ethnic minorities, women and disabled persons whether as full-time or part-time employees

- The plan should include provision for such reasonable adjustments as may be necessary to ensure that people from the designated groups achieve a degree of representation in each occupational group and in the employers workforce that reflects their representation in the national workforce or in those segments of the workforce from which the employer may reasonably be expected to recruit employees

- The employer should not be obliged to take any action which would involve undue hardship to the employer’s undertaking, nor to recruit or promote a person who would not be qualified for the job

- This review should be conducted in consultation with interest groups, in particular employees or their representatives, with a view to reaching agreement on the action plan

- The employer should be obliged to disclose information as to the results of the review and of any employment equity plan in the company report, and to employees or their representatives

- The failure of an employer to conduct a periodic review, or, where appropriate, to draw up an employment equity plan, or to disclose information about the review or plan, should be admissible in evidence in any proceedings for unlawful discrimination, and the tribunal should be entitled to draw an adverse inference from this fact, having regard to the size and administrative resources of the employer

- The commission should have power, after due notice, to publish the fact that an employer has failed to conduct a review or to consult or to draw up and implement an employment equity plan

- The commission should publish a code of practice giving guidance to employers on periodic reviews and employment equity plans

- The commission should have power to require information on the review and action plan, and to make recommendations as to the action to be taken

- Where the commission is of the opinion that the employer is not carrying out a satisfactory review, it should use its best endeavours to secure satisfactory written undertakings

- If such undertakings are not given, the commission should be able to serve a notice giving directions to the employer; similarly if an undertaking, although given, is not complied with the commission should be able either to serve a directions notice or to apply to a tribunal for enforcement of the undertaking

- The commission should also have power to serve a notice about goals and timetables, against which to measure progress, on an employer who has given an undertaking, or been directed to take action, or has been subject to a tribunal order to take any action

- The commission should be able to apply to an employment tribunal to enforce an undertaking or directions, or goals and timetables notice, and the tribunal should have power to make an order specifying the steps to be taken

- In the event of failure to comply with a tribunal order, the tribunal should be able to either to certify the failure to the High Court for contempt proceedings, or itself to award a monetary penalty

There is a strong recommendation to this effect regarding race discrimination in the CRE consultation draft (chapter 3) to "give [employers] the confidence of knowing they are treating people fairly and equally at every stage of the employment cycle".

Recommendation 29

- Employers with more than 10 full-time employees should be obliged to conduct a periodic pay audit (once every three years) covering both full- and part-time employees, and to publish this in the company’s report, and to inform employees or their representatives and, on request, the commission

- The failure of an employer to conduct an audit or to disclose, should be admissible in evidence in any proceedings for unlawful discrimination, and the tribunal should be entitled to draw an adverse inference from this fact, having regard to the size and administrative resources of the employer

- The commission should have power, after due notice, to publish the fact that an employer has failed to conduct a pay or audit or to disclose

- If, following an audit, the employer finds a significant disparity between predominantly female and predominantly male job classes, it should be obliged to draw up a pay equity plan in negotiation with recognised trade unions with a view to reaching a collective agreement, or where no union is recognised in respect of pay, after consultation with a view to reaching a workforce agreement with employees or their representatives

- When bargaining on pay, the employer and recognised union should have due regard to the need to promote equal pay for work of equal value for men and women

- The minimum (default) contractual right of an employee to equal pay for work of equal value should apply where there is no collective agreement or workforce agreement on the subject

- There should be the possibility of CAC arbitration in the event of a dispute, and the CAC should have power to award a pay equity, which should operate in the same way as a collective agreement or workforce agreement

- Individual employees should be able to bring proceedings in an employment tribunal for breach of a collective agreement or workforce agreement or CAC award relating to equal pay

- The CAC should have power to strike out or amend provisions in collective or workforce agreements or employer’s pay structures which are directly or indirectly discriminatory

The EOC has been encouraging employers in key sectors to conduct pay reviews: see EOC Annual Report 2003-2004,p.3.

Recommendation 30

- It should be possible to contract-out of the individual’s right to equal pay by collective agreement or workforce agreement in respect of a defined and reasonable period so far as is appropriate and necessary to allow the employer time to absorb the costs of implementation of an agreed pay equity plan

- A CAC pay equity award should operated in the same way as a collective agreement or workforce agreement

Recommendation 31

- The principle of proportionality in relation to the defence of objective justification for a difference in pay between men and women should be codified, by providing that a difference in pay for work of equal value is justified only to the extent that the difference is attributable to factors which are not related to sex

See Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332(EAT)

Recommendation 32

- The definition of "same employment" should be clarified so as to conform to EC law, by including any employment by the same employer or by an associated employer or by any other employer who forms part of the same public service

See National Power plc v Young [2001] IRLR 32 (CA); South Ayrshire Council v Morton [2002] IRLR 256 (CS) ;South Ayrshire Council v Milligan [2003] IRLR 153;

Lawrence v Regent Office Care Ltd [2002] IRLR 822 (ECJ); Allonby v Accrington and Rosendale College [2004] IRLR 224 (ECJ)

Recommendation 33

- An employer should be obliged to achieve pay equity at the level of the entire undertaking, rather than within a particular establishment or establishments as at present, subject to the general defence of objective justification

Recommendation 34

- The EOC code of practice on equal pay should be revised, simplified, and expanded in the light of recent experience

- There should be encouragement to review existing job evaluation schemes against the EC code, the EOC guidelines on good equal opportunities practice in analytical job evaluation and other sources

- Chairmen and members of employment tribunals (and, if our proposals in Recommendation 29 are accepted members of the CAC), who hear equal value claims, should receive training in the nature of job evaluation schemes

- New statutory questionnaire procedure for equal pay introduced 6 April 2003

See also,Towards Equal Pay: Consultation on Proposals to Streamline Equal Value Tribunal Procedures, DTI, March 2004.

Recommendation 35

- Section 2A(2) of the Equal Pay Act should be repealed. An existing scheme should be admissible and relevant evidence in determining whether the work is of equal value, but it should not be conclusive

Recommendation 36

- The positive duty on specified public authorities to promote equality and eliminate unlawful discrimination should apply to their procurement, grant and subsidy, licensing and franchising functions

- Equality standards should be included among the core performance indicators for the purposes of compliance with the duty to secure best value

- The normal system of best value reviews, audit and inspection should include measures for fair participation and fair access, and in addition, the commission should be able to make inquiries and request information, and, where an authority has failed to take appropriate steps to comply, the commission should be able to apply to a tribunal for an appropriate order

- The "approved questions arrangement", with suitable amendments, should be applied to all grounds of unlawful discrimination

- Contractors should be excluded from approved lists, not invited to tender, not selected against competing bids and be liable to have their contracts terminated, if they have been found by an employment tribunal, after a fair hearing, to have committed gross misconduct, including persistent discrimination or any other serious breach of equality legislation

- The UK government should press the European Commission for a less restrictive approach to contractual obligations to achieve equal opportunities, and for a clarification and simplification of the EC rules in this respect

Recommendation 37

- Regular discrimination training should continue to be received on a national basis by all chairmen, but additional refresher courses should be provided for experienced chairmen

- Discrimination cases should be assigned only to chairmen with the requisite experience or specialist training

Recommendation 38

- The current programme of discrimination training for lay members should be continued and additional resources should be provided for specialist training to a selected number of lay members

- The practice should continue that lay members are not called to sit on discrimination cases unless they have the requisite experience or training

- The specialist race panel should be discontinued

- Chairmen should give clear guidance to lay members to avoid prejudice and stereotyped attitudes, and members who are unable or unwilling to do so, should not be called for discrimination cases

Recommendation 39

- An equality scheme for the employment tribunals should set targets for achieving a lay membership of not less than 40% women by 2003, and 50% by 2006, and a percentage that reflects the proportion of ethnic minority communities in each region by 2006

- Barriers on the service of disabled persons as members of tribunals should be removed, unless they can be justified as appropriate and necessary

Recommendation 40

- The title of chairman of employment tribunals should be changed to employment judge

Recommendation 41

- All discrimination cases should be commenced in the employment tribunals

- Where the matter does not relate to employment, the tribunal should be designated as an "equality tribunal"

- The lay members should be called to hear cases having regard to their knowledge and experience of the relevant field. If necessary, additional members should be appointed with relevant knowledge in respect of education and consumer affairs

- The President of tribunals or a regional chairman should have the power to transfer a matter to the county court, either on application by a party, or on his or her own motion

- Equivalent provisions should be made for the transfer of cases to the sheriff court in Scotland

- The criteria for transfer should include: (1) whether it would be more convenient or fair for the hearing to be held in that court, having regard to the facts, legal issues, remedies and procedure; (2) the availability of a judge specialising in this type of claim; (3) the facilities available at the tribunal and at the court where the claim is to be dealt with and whether they may be inadequate because of the disabilities of a party or a potential witness; and (4) the financial value of the claim and the importance of the claim to the public in general

Recommendation 42

- Tribunals should continue to use IHAs where they are satisfied that unrepresented parties will not be at a disadvantage

- The parties should be sent in advance pro forma questions which are to be raised at the IHA

Recommendation 43

- A simplified single questionnaire should be used for all types of discrimination claim

- The form should be made available to applicants by the Employment Tribunals Service together with the originating application IT1

- The form should state clearly the consequences of failure to reply or an evasive or equivocal reply

- Respondents should be required to reply within eight weeks of service of the questionnaire- failing which the tribunal should have power, on application or of its own motion, to strike out all or part of the notice of appearance or to debar the respondent from defending altogether, but this should not be done without giving the respondent an opportunity to show cause why such an order should not be made

Equal pay questionnaire introduced from 6 April 2003

Recommendation 44

- The commission should have power to institute proceedings in its own name or jointly with individuals in respect of unlawful discrimination where there is a common question of fact or law affecting a number of persons, whether identified or not

- The commission should be able to claim injunctive and declaratory relief and also an order requiring compensation to be paid to a defined group of individuals

- Individuals who fall within the defined group should be able to register within a specified time, and, if they do so, to enforce any order for compensation to the extent of their own loss or injury

- If our recommendation in respect of exemplary damages is accepted, then in any proceedings brought by the commission the amount of such damages should be paid to the commission

Recommendation 45

- There should be more active case management by chairmen of tribunals in equal pay cases, speedier appointment of the expert, an early meeting between the expert and the parties (under the chairman’s management) to establish a strict timetable, with any departure from this being subject to a directions hearing

- consultation on streamlining equal pay claims consultation pp8, 12 and 15 re reducing delays and stricter case management; also changes re whether and when to involve experts

Recommendation 46

- The Lord Chancellor should direct the CLSF to give priority to all types of discrimination case in respect of both legal help and representation

Recommendation 47

- There should be a statutory reversal of the burden of proof in respect of all unlawful discrimination along with lines set out in Article 4 of the Burden of Proof Directive 97/80/EC

This has been done in the Sexual orientation and Religion or belief regulations

Recommendation 48

- The time limit for making a complaint of unlawful discrimination should be six months from the date of the alleged act of discrimination, unless in all the circumstances of the case the court or tribunal considers it just and equitable to hear the complaint out of time

See Equal Pay Act Regs extending 6-month limit in certain circumstances, and changing back pay limitation from 2 to 6 years, as well as modifying procedure for bring equal pay claims and giving tribunals greater discretion to disregard findings of employer’s job evaluation scheme.

Recommendation 49

- There should be an up-to-date digest of current awards for injury to feelings

- Damages should be available as a remedy for unintentional indirect discrimination in respect of all grounds of unlawful discrimination and in all fields to which the law applies

Recommendation 50

- Tribunals in England, Wales and Northern Ireland should make greater use of their power to award aggravated damages

- Punitive damages should be available for unlawful discrimination as recommended by the Law Commission in respect of England and Wales

- Consideration should be given to the award of aggravated and punitive damages for unlawful discrimination in Scotland

Recommendation 51

- An employment tribunal should have power to order engagement, re-engagement or reinstatement, unless the employer shows that it would not be practicable to comply with such an order

- If an order is made but not observed, the tribunal should be able to award additional compensation, including aggravated and punitive damages

Recommendation 52

- An employment tribunal should have power to recommend that the applicant be engaged in or promoted to a particular job

- The power to make a recommendation that action be taken to obviate or reduce the adverse effect of the discrimination on the applicant should be extended to non-employment cases

- In the event of a recommendation not being complied with in the period specified the tribunal or court should have power to award additional compensation, including aggravated and punitive damages

Recommendation 53

- The power of the commission to make arrangements for conciliation in non-employment cases should be extended to all grounds of unlawful discrimination

- A pilot project for mediation in sexual harassment cases, and subsequently in other discrimination cases, should be supported

- Employers’ grievance and harassment procedures should include provision for mediation

-see Employment Tribunal System Taskforce p13 note on mediation and pilot schemes, and generally new Tribunal regulations

- The ERA 1996, s3 should be amended so as to require an employer to specify in the note about grievance procedures a person or body to whom the employee can apply for mediation of any grievance relating to alleged discrimination or harassment, if other procedures fail.

- see changes made by EA 2002 and new Tribunal regulations

BH/Discrim/ILS/ 11/9/04

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