Equality, a new framework : report of the independent review of the enforcement of UK anti-discrimination legislation

173 Pages·2000·0.748 MB·English

by  Choudhury, Tufyal, Hepple, B. A., Coussey, Mary

EQUALITY:
A NEW FRAMEWORK

EQUALITY:
A NEW FRAMEWORK
Report of the Independent Review of
the Enforcement of
UK Anti-Discrimination Legislation
BOB HEPPLE QC
MARY COUSSEY
TUFYAL CHOUDHURY
HART PUBLISHING
OXFORD – PORTLAND OREGON
2000
Hart Publishing
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©Bob Hepple, Mary Coussey and Tufyal Choudhury 2000
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British Library Cataloguing in Publication Data
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ISBN 1 84113-159-8 (paperback)
Typeset by John Saunders and Printed in Great Britain
CONTENTS
Preface by Lord Lester of Herne Hill QC ix
Acknowledgments x
Abbreviations xi
Executive summary xiii
Recommendations xvii
Introduction Aims and Methodology 1
Chapter One Why a new framework is needed 5
A. Challenges to the present framework 5
(1) Outdated legislation 5
(2) The law of the European Union 7
(3) Devolution 7
(4) The Human Rights Act 1998 9
(5) Summary 10
B. The changing face of discrimination and disadvantage 10
(1) Social structure and attitudes 10
(2) The labour market and unemployment 12
(3) The gender pay gap 13
(4) Discrimination 14
C. Changed social and employment practices 16
D. Towards a new framework 18
Chapter Two Harmonising legislation and institutions 21
A. A single statute ? 21
(1) Defects of the present framework 21
(2) How to harmonise 23
B. Principles 25
C. The concepts of equality and discrimination 27
(1) Direct discrimination 27
(2) Victimisation 28
(3) Knowledge, intention and motivation 29
(4) Indirect discrimination 30
(5) Equality of opportunity 32
(6) Fair participation and fair access 33
(7) Interpretative principles 34
D. Justification of discrimination 35
vi CONTENTS
(1) Direct discrimination 35
(2) Disability discrimination 36
(3) Genuine occupational qualification 37
(4) Reasonable adjustments 37
(5) Positive action 37
E. Harassment and bullying 38
F. Grounds of discrimination 41
(1) General considerations 41
(2) Specific grounds 43
(a) Age 43
(b) Association with protected groups 44
(c ) Disability 45
(d) Ethnic origin: traveller communities 45
(e) Genetic discrimination 46
(f) Marital and family status 47
(g) Religion or belief 47
(h) Sexual orientation 50
G. Harmonising or merging the commissions 51
(1) A single commission ? 51
(2) Structure of a single commission 53
Chapter Three Changing organisational policy and behaviour 56
A. Regulatory strategies 56
B. Duty on public authorities to promote equality 59
(1) Purposes 59
(2) Principles 60
(3) Scope 61
(4) Equality schemes 62
(5) Which authorities and functions ? 63
(6) Enforcement 64
C. Employment equity 65
(1) Lessons from the USA 65
(2) Northern Ireland 67
(3) A scheme for Britain 69
D. Pay equity 72
(1) Introduction 72
(2) EOC and TUC proposals 72
(3) The Ontario Pay Equity Act 73
(4) Enforcement of pay equity schemes 73
(5) Relationship of pay equity to individual right 76
(6) Pay comparisons 77
E. Contract and subsidy compliance 79
(1) Meaning 79
(2) Practice in Britain 80
(3) Northern Ireland 82
CONTENTS vii
(4) Objections and justifications 82
(5) Restrictions under EC law 83
(6) Proposals 84
Chapter Four Making procedures and remedies more effective 86
A. Specialisation and training 86
(1) A specialist division ? 86
(2) Training of chairmen 87
(3) Lay members 89
(4) The title of "chairman" 90
B. Jurisdiction: employment appeal tribunal and county and sheriff courts 90
(1) Transfer of cases to the Employment Appeal Tribunal 90
(2) County and sheriff court cases 91
C. Pre-hearing matters 93
(1) Unmeritorious cases 93
(2) Interlocutory hearings 93
(3) Questionnaire procedure 94
(4) Class actions and group litigation 95
(5) Equal pay claims 97
D. The hearing 99
(1) Length of hearings 99
(2) Legal help and representation 99
(3) Burden of proof 100
E. Time limits 102
F. Remedies 103
(1) Compensation 103
(2) Exemplary (punitive) and aggravated damages 105
(3) Reinstatement and re-engagement 106
(4) Power to make recommendations 107
(5) Interim relief 108
G. Costs 108
H. Conciliation, mediation and arbitration 109
Appendices
1. Findings from employer case studies 115
2. Legislation 127
3. Comparison of legislation 130
4. Consultations and interviews 140
5. Selected bibliography 143
6. Research team, advisory committee and panel of experts 146
7. Working papers 147

PREFACE
We are rightly proud of having been the first European country to introduce anti-discrimination legisla-
tion administered by independent commissions and enforced by courts and tribunals. But this legisla-
tion is now outdated, and there is a really pressing need for reform to make the law comprehensive,
consistent, effective, and user-friendly. During the quarter-century since its enactment, the limits and
defects of the legislation have become more and more apparent, and the passing of each new measure
has added to the incoherence and opaqueness of the UK’s equality codes.
The legislation has been enacted in a characteristically British piecemeal and pragmatic way,
responding with detailed specificity to the political needs of the times, but without the benefit of a
constitutional framework guaranteeing the equal protection of the law and equal access to justice.
The Commission for Racial Equality, the Equal Opportunities Commission and many others have
repeatedly called for the reform of this tangled web of legislation, drawing attention to the unnecessary
fetters on the commissions’ powers to promote equality of opportunity and secure compliance with the
law. Like the courts, they have complained of the tortuous and unworkable procedures for achieving
equal pay for men and women, three decades after the enactment of the Equal Pay Act. And they have
called for the legislation to give direct effect to the rights and obligations guaranteed by European law.
But successive Governments have failed to heed their recommendations, preferring instead to make
limited and piecemeal changes. The defective state of the law helps no-one except lawyers.
This report of the independent review of the enforcement of UK anti-discrimination legislation is the
most profound study of what is wrong with the existing laws, and of what can and should be done to
develop an accessible legislative framework, together with other measures to promote equal opportuni-
ties policies. It provides Government and other decision-makers with a uniquely well-researched
practical guide, based on the experience of those directly affected by the legislation. It explains the
options for reform, drawing upon lessons from other countries. It does not treat legislation as a
panacea. It recommends an inclusive, pro-active, non-adversarial approach, which avoids unnecessary
bureaucratic requirements, while ensuring that the law is effectively enforced.
The authors of this brilliant report are to be congratulated for producing a major study which diagnoses
the main problems and recommends wise and workable ways of tackling them. It is to be hoped that
the necessary political commitment will now be found to translate their proposals into legislation as a
high priority.
ANTHONY LESTER
Chair, Advisory Committee