21 May 2012
Employment law specialist Emma Satyamurti
comments on worrying proposals from the government. On 15 May 2012 the government announced proposals for sweeping changes which will weaken our equality laws. Consultation on the proposals closes in August 2012.
The government’s proposed reforms, Equality Act 2010: consultation on repeal of two enforcement provisions
and Equality Act 2010: consultation on employer liability for harassment of employees by third parties
, are part of its ‘red tape challenge,’ the stated aim being to achieve the right balance between individuals’ rights and “letting businesses get on with the job.” In the words of the Home Secretary Theresa May: “Bureaucracy and prescription are not routes to equality. Over-burdening businesses benefits no one, and real change doesn’t come from telling people what to do.” However what she fails to make clear is what exactly she would do to achieve 'real change' to the widespread discrimination that still exists.
First in the firing line is the Public Sector Equality Duty, which requires public bodies to have regard to eliminating discrimination
, advancing equality of opportunity, and fostering good relations between people with a ‘protected characteristic’ (such as gender
or being of a particular ethnic
or age group
) and those without it. If the equality duty is jettisoned, this would reduce the scope for holding to account public sector employers, service providers and institutions, including the government itself. It would also remove any positive obligation to actively promote equality. Since the point of the equality duty is to remove barriers to access, ditching it may well result in increased litigation as people are forced to turn to the law to enforce their rights.
Also up for grabs is the statutory questionnaire procedure which allows a person who thinks they may have been subjected to discrimination to ask probing questions of their employer or service provider to gain key information at an early stage. This is an important tool as discrimination is often covert. While it may be inconvenient for organisations to answer questionnaires, abolishing the procedure will significantly dent the effectiveness of anti-discrimination laws - all in the name of “scrapping bureaucratic information-gathering procedures.”
The third proposal from the government is to scale back the power of employment tribunals to make effective recommendations in discrimination cases. Where an employer is found to be guilty of discrimination, the tribunal can make recommendations affecting not only the claimant but the employer’s workforce more generally, such as the training of senior managers, and reviewing policies and procedures. This is important as it enables tribunals to encourage employers to remove discriminatory workplace practices. Any inconvenience is surely a small price to pay for what the employer should be doing anyway. However the government proposes to reverse this wider scope for recommendations, a move that again seems self-defeating since improved employment practices mean less claims, the very thing the government says it wants.
The government also proposes to remove employers’ liability for harassment of employees by third parties such as clients and customers, a change which may be in breach of European discrimination law.
Finally, the government has announced significant changes to the Equality and Human Rights Commission (EHRC), the statutory body charged with protecting, enforcing and promoting equality. These include repealing “unnecessary powers and duties,” tighter financial controls, a review of what remains of its budget (this was cut in half by the 2010 Spending Review), and putting in place new leadership. What value are equality rights without effective enforcement mechanisms?
‘Cutting red tape’ and ‘fairness’ are familiar refrains from this government. However the recent announcements are further evidence that, when the chips are down, fairness comes second. Equality is a fundamental human right; it requires strong laws to protect it. The cost of the government’s efforts to free businesses to “get on with the job” will be borne by the most vulnerable including women, the disabled, older people, and people from minority ethnic groups. As equality is eroded, their freedom to get on with their jobs, and lives, without discrimination and unfairness will be increasingly compromised.
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