A Unified Approach to Equality Law

10 May 2003

Bob Hepple QC¹

The ERRC has been active in promoting the speedy adoption of anti-discrimination legislation in a number of countries in Central and Eastern Europe. These countries can learn a number of lessons from the experience of other European countries, with established legislation.

In the United Kingdom, the Government is at present considering how to implement the EC Race Directive (2000/43/EC), the Employment Directive (2000/78/EC) and the revised Equal Treatment Directive (2002/73/EC). New legislation will have to extend the grounds for protection against discrimination in employment and training to include sexual orientation and religion or belief by 2003, and age by 2006, as well as making many changes to outdated existing legislation on racial, gender and disability discrimination.

There are three main problems with implementing the EC directives. The first is that they are fragmented. There are separate directives for gender, for race, and for disability, age, religion or belief, and sexual orientation. There are inconsistencies between these directives. Moreover, they are not comprehensive. For example, while the Race Directive outlaws discrimination in employment, training, social protection and other social advantages and also education and the provision of goods, services and housing, the Employment Directive (relating to disability, religion and belief, sexual orientation and age) is limited to employment and training. This makes anti-discrimination legislation confusing, complex and difficult for the victims of discrimination. A Romani woman with a disability turned down for a job, may not know whether the reason was her ethnicity, her gender or her disability or a combination of these reasons. If she chooses the wrong law under which to make her complaint she will fail. If she or her children are discriminated against in the education field they may have no claim at all by virtue of the directives unless the discrimination is racial.

A second problem with the directives is that they are based on a British model of the 1970s, rather than what is required in the 21st century in order to achieve equality. While the British Race Relations Acts of 1968 and 1976 have succeeded in breaking down many barriers for individuals in their search for jobs, housing and services and there are fewer overt expressions of discrimination than there once were, members of ethnic minorities still suffer from stereotypes about their abilities. There is de facto occupational segregation, with high unemployment and low pay being prevalent among certain ethnic minorities, including Romani people. Discrimination and exclusion have become more complex and covert than they were three decades ago. There are attitudes, policies and practices of the kind that were identified as "institutional racism" by the inquiry in 1999 into the murder of a black teenager called Stephen Lawrence. It was this kind of racism - familiar to Romani people in Europe - which led to the failure of the police to investigate properly the circumstances of his death and to prosecute the murderers.

In 1999-2000, my colleagues at Cambridge and I conducted an independent review of the enforcement of UK anti-discrimination legislation.² We concluded that the existing framework of legislation places too much emphasis on state regulation and too little on the responsibility of organisations and individuals to generate change. The framework adopts an incoherent approach to different manifestations of inequality. It was designed largely to deal with organisations with hierarchical, vertically integrated and centralised bureaucracies. This is not appropriate for modern, flatter, organisational structures in which the achievement of equality depends not simply on avoiding negative discrimination, but on the active participation of all stakeholders, on training and improving skills, developing wider social networks and encouraging adaptability.

Our case studies of employers' practices in Britain, compared to those under contract compliance programmes in the USA and under positive duties to promote equality between the communities in Northern Ireland, showed that an inclusionary approach is the most effective way of reducing the under-representation of disadvantaged groups. This approach requires employers, those in charge of education and those providing goods, services and housing, to take practical positive steps to increase diversity. This is not based on fault-finding and retrospective analysis of decisions. The emphasis is on assessing the effectiveness of affirmative action, instead of whether there have been specific exclusions. This inclusionary approach overcomes the frequently mentioned perception that the present regime is too negative and too adversarial. A positive duty to reduce the under-representation of disadvantaged groups is, in the long run, more effective than negative duties not to discriminate.

The third problem with the directives is that only the Race Directive requires the Member States to designate a body or bodies for the promotion of equal treatment. If narrowly implemented this may mean creating simply a promotional body limited to racial discrimination. The independent review of UK legislation concluded that separate bodies in respect of race, gender and disability had made it more difficult to enforce legislation. We recommended a single equality commission, with effective enforcement powers, covering all grounds of unlawful discrimination.

The independent review's proposals are now implemented in an Equality Bill which was introduced in January 2003 in the Upper House of Parliament (House of Lords) by Lord Lester of Herne Hill QC (former Chair of the ERRC Board of Directors) with cross-party and cross-bench support.³ (The Bill applies to Great Britain and not Northern Ireland which already has a single Equality Commission. The Northern Ireland Assembly has competence to enact its own single Act.)

The Bill is a comprehensive measure providing a unified approach. It simplifies existing law: compared with several thousand pages of current laws, regulations and codes of practice, the unified Bill sets out principle and necessary detail in 110 pages. It also clarifies existing law, for example by specifically providing that "a person who is a member of any Roma, Gypsy or Irish traveller community, is to be treated as a member of a group defined by reference to colour, race, nationality or ethnic or national origins."

The Bill is in full accord with the UK's obligations under EC law and international and European human rights law. It places the emphasis on positive duties to promote equality, which do not depend on the proof of fault by an individual complainant. Basing itself on British and international experience over the past four decades, the Bill seeks to encourage an inclusive, pro-active and less adversarial approach to fair participation and fair access. In particular, it extends the positive duty on public authorities to promote racial equality prescribed by the Race Relations (Amendment) Act 2000 to gender and disability. It also places obligations on some employers to conduct workforce reviews and, where appropriate, to undertake employment equity and pay equity plans.

The Bill also proposes a single Equality Commission, replacing the existing Commission for Racial Equality, the Equal Opportunities Commission and eventually the Disability Rights Commission. The Equality Commission will be competent to deal effectively with all unlawful grounds of discrimination. The primary responsibility is placed on organisations to ensure effective self-regulation. There is support for the participation of interest groups, such as workforce representatives, in the process of change. The Commission is given a back-up role of assistance, investigation and, ultimately, judicial enforcement where voluntary methods fail. Some sceptics fear that a single Act and single Commission will blur the focus on specific types of discrimination. However, we believe that an inclusive and comprehensive approach under the unifying principle of equality will strengthen all the disadvantaged groups and will help build alliances between them.

There are also some interesting changes in procedure. All complaints, including non-employment matters, would be presented to an employment tribunal which is given power to transfer the case where appropriate to the ordinary civil courts. (When dealing with a non-employment matter, the tribunal would be styled an equality tribunal.) There would be a standard time limit for presenting a complaint of six months from the date of the alleged act. In addition to complaints by individuals who claim to have been adversely affected by discrimination, harassment (for the first time a separate wrong), and victimisation, the Commission would have power to make applications in its own name on behalf of such persons. So would any organisation (such as Roma rights organisations) which has as one of its purposes the protection of the collective interests of persons. The tribunal would also hear appeals against compliance notices issued by the Commission. Much emphasis is placed on the promotion of settlements by independent conciliation, mediation and arbitration.

Remedies are strengthened. Recommendations by tribunals would include obviating the adverse effects of discrimination not only on the complainant, but also on any other person to whom the complaint relates. Orders for reinstatement or re-engagement could be made (at present this is limited to unfair dismissal); in cases of discriminatory denial of employment the tribunal would, depending on the circumstances, be able to order the respondent to employ the complainant if that is a practical option. Awards of punitive damages could be made where a person has deliberately and outrageously disregarded the complainant's rights. One of the most important innovations is a procedure for contract compliance that is consistent with EC public procurement law. Where there is persistent contravention by a person who fails to comply with a tribunal order, the Commission would be empowered to issue a disqualification notice barring that person from public contracts or subsidies, and this could be enforced either by the Commission or by a person affected through an action for breach of statutory duty.

Whatever the fate of Lord Lester's Bill in the UK, it should provide a useful model for other EU member states and candidate countries.

Endnotes:

1. Bob Hepple is Professor of Law and Master of Clare College, Cambridge University. He served as Commissioner for Racial Equality in 1986-90 and was a Member of the Lord Chancellor's Advisory Committee on Legal Education and Conduct in 1994-99. He is the author of 15 books and numerous articles on employment and discrimination law, the law of torts and European social law. He also is Chair of the ERRC Board of Directors.
2. Bob Hepple QC, Mary Coussey and Tufyal Choudhury. Equality: A New Framework. Report of the Independent Review of the Enforcement of UK Anti-Discrimination Legislation. Oxford: Hart Publishing, 2000.
3. The text of the Bill can be downloaded from www.odysseustrust.org or www.publications.parliament.uk/pa/pubills.htm