EQUALITY LAW UNDER THE CONSERVATIVE GOVERNMENT Bob Hepple

EQUALITY ACTS 2006 AND 2010 Comprehensive – unitary or integrated approach enforced by single Commission- from politics and law of single identities to equality as fundamental human right. Harmonises, clarifies and extends concepts of discrimination, harassment and victimisation Some measures of transformative equality- from negative to positive duties: eg PSED, more flexible possibilities for positive action Bob Hepple2

EQUALITY UNDER COALITION GOVERNMENT Most provisions brought into force, except s 1 (duty to reduce socio- economic inequality) and s.78 (gender pay gap information); ‘caste’ must be added as prohibited characteristic. Rights to request flexible working; shared parental leave; mandatory pay audits after finding of breach of equal pay provision. BUT ‘red tape’ deregulation- raising qualifying period for unfair dismissal (2 yrs), cap on UD awards (12 mths), limit on annual uprating. Repeal of provisions on harassment by 3 rd parties, intersectional discrimination, questionnaire procedure, power to make wider recommendations etc. Bob Hepple3

DISEMPOWERMENT OF EHRC Reduced to ‘core’ functions Two-thirds budgetary cuts Severe staff losses BUT general duty (EA 2006, s 3)to promote broad aims of equal opportunity, equal dignity and worth, and human rights NOT repealed Bob Hepple4

ACCESS TO JUSTICE Imposition of tribunal fees since 29 July 2013 – fall of all discrimination claims 77% between Q and Q applications in UNISON cases for JR refused (appeal pending). Disappearance of legal advice and assistance Fees policy ‘under review’ Tribunal reform? Bob Hepple5

GENERAL ELECTION 2015 Improved diversity in Parliament ( women 29% compared to 22% in 2010; 43% Labour MPs, 36% SNP; 42 BME MPs (6.4%) compared to 27 in 2010; 32 openly LGBT). Conservative manifesto: Govt ‘will fight for equal opportunity’ Mandatory gender pay reporting –Small Businesses,Enterprise and Employment Act 2015, s 147,requires Sof S to make regulations under EA s.78 within 12 mths after consultations. Minimum wage to be raised towards living wage and abuses such as non-payment, zero hours and migrant workers to be tackled. Bob Hepple6

CONSTITUTIONAL ISSUES Repeal of Human Rights Act and introduction of British Bill of Rights – limits to ‘most serious matters’-effect on LGBT rights, right to manifest religion/belief/political opinion?- can UK remain member of EU if withdraws from ECHR? Referendum on EU membership. If YES, loss of major pillar of domestic equality law (eg equal pay for work of equal value, discrimination on grounds of age,s.o, religion/belief, equal treatment for part-time, fixed-term and agency workers. Scottish devolution – Smith Commission – EA ‘reserved’ for UK parliament, but power over tribunal rules, PSED etc,,gender quotas,? Bob Hepple7

ADVANCING EQUALITY Effective strategic enforcement by EHRC (eg Metropolitan police)? Equality representatives Strengthen PSED – but note changes in JR rules by Criminal Justice and Courts Act 2015, s 84 (leave to apply),s.85 (interveners and costs), s.88 (capping of costs). Review of PSED in 2016 –need to change ‘due regard’ test, and rules on engagement of stakeholders. O achieve ‘reflexive’ regulation Bob Hepple8

CONCLUSION Absence of duty on large and medium private and voluntary sector employers to conduct equity and equal pay audits – a ‘burden on business ?. Make better use of existing powers (eg EHRC can use investigatory powers and negotiate legally-binding positive action agreements in lieu of enforcement. Bob Hepple9