1. Update on equalities: where are we?
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Thompsons Solicitors
Update on equalities: where are we?
Wednesday 8th December, 2010

2. Professor Aileen McColgan, KCL and Matrix
The Equality Act 2010
Professor Aileen McColgan, KCL and Matrix

3. consolidation 
rationalisation
end of the fault lines 
harmonisation
indirect discrimination 
harassment 
remedies 
remaining quirks

4. definitions of discrimination
direct discrimination: less favourable treatment “because of a protected characteristic” (s.13(1))
JCHR concerns
Govt response
Coleman?
perceived characteristics?
dual characteristics
non-application to indirect discrimination
limited (as name suggests) to two grounds
excludes maternity, pregnancy, marriage, civil partnership
s.13(3) providing that “where the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B” and 13(6)(b) that “in a case where B is a man, no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth”.

5. definitions of discrimination ii
15(1) A person (A) discriminates against a disabled person (B) if—
(a) A treats B unfavourably because of something arising in consequence of B’s disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability
No requirement of reasonable enquiry
S.60 prohibits pre-employment questionnaires

6. positive action
s.158 generally permissive but does not apply to recruitment or promotion
s.159 narrower
158 Positive action: general
(1) This section applies if a person (P) reasonably thinks that—
(a) persons who share a protected characteristic suffer a disadvantage connected to the characteristic,
(b) persons who share a protected characteristic have needs that are different from the needs of persons who do not share it, or
(c) participation in an activity by persons who share a protected characteristic is disproportionately low.
(2) This Act does not prohibit P from taking any action which is a proportionate means of achieving the aim of—
(a) enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage,
(b) meeting those needs, or
(c) enabling or encouraging persons who share the protected characteristic to participate in that activity.
(3) Regulations may specify action, or descriptions of action, to which subsection
(2) does not apply.
(4) This section does not apply to—
(a) action within section 159(3), or
(b) anything that is permitted by virtue of section 104.
(5) If section 104(7) is repealed by virtue of section 105, this section will not apply to anything that would have been so permitted but for the repeal.
(6) This section does not enable P to do anything that is prohibited by or under an enactment other than this Act.

7. This section applies if a person (P) reasonably thinks that—
(a) persons who share a protected characteristic suffer a disadvantage connected to the characteristic, or
(b) participation in an activity by persons who share a protected characteristic is disproportionately low.
(2) Part 5 (work) does not prohibit P from taking action within subsection (3) with the aim of enabling or encouraging persons who share the protected characteristic to—
(a) overcome or minimise that disadvantage, or
(b) participate in that activity.
(3) That action is treating a person (A) more favourably in connection with recruitment or promotion than another person (B) because A has the protected characteristic but B does not.
(4) But subsection (2) applies only if—
(a) A is as qualified as B to be recruited or promoted,
(b) P does not have a policy of treating persons who share the protected characteristic more favourably in connection with recruitment or promotion than persons who do not share it, and
(c) taking the action in question is a proportionate means of achieving the aim referred to in subsection (2)…
158 Positive action: general
(1) This section applies if a person (P) reasonably thinks that—
(a) persons who share a protected characteristic suffer a disadvantage connected to the characteristic,
(b) persons who share a protected characteristic have needs that are different from the needs of persons who do not share it, or
(c) participation in an activity by persons who share a protected characteristic is disproportionately low.
(2) This Act does not prohibit P from taking any action which is a proportionate means of achieving the aim of—
(a) enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage,
(b) meeting those needs, or
(c) enabling or encouraging persons who share the protected characteristic to participate in that activity.
(3) Regulations may specify action, or descriptions of action, to which subsection
(2) does not apply.
(4) This section does not apply to—
(a) action within section 159(3), or
(b) anything that is permitted by virtue of section 104.
(5) If section 104(7) is repealed by virtue of section 105, this section will not apply to anything that would have been so permitted but for the repeal.
(6) This section does not enable P to do anything that is prohibited by or under an enactment other than this Act.

8. exceptions religious organisations the GOR defence
the European Commission
the proposed provision
the amendments
the result?

9. 2(1) A person (A) does not contravene a provision mentioned in sub-paragraph (2) [employment-related discrimination] by applying in relation to employment a requirement to which sub- paragraph (4) applies if A shows that—
(a) the employment is for the purposes of an organised religion,
(b) the application of the requirement engages the compliance or non- conflict principle, and
(c) the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it)
(4) This sub-paragraph applies to—
(a) a requirement to be of a particular sex;
(b) a requirement not to be a transsexual person;
(c) a requirement not to be married or a civil partner;
(d) a requirement not to be married to, or the civil partner of, a person who has a living former spouse or civil partner;
(e) a requirement relating to circumstances in which a marriage or civil partnership came to an end;
(f) a requirement related to sexual orientation.

10. (5) The application of a requirement engages the compliance principle if the requirement is applied so as to comply with the doctrines of the religion.
(6) The application of a requirement engages the non-conflict principle if, because of the nature or context of the employment, the requirement is applied so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers.

11. The JCHR
1.9 In its reasoned opinion infringement No. 2006/2450, paragraphs 15-20, which is usually confidential but which has found its way into the public domain, the European Commission takes the view that Article 4(1) of the 2000/78/EC Directive:
Contains a strict test which must be satisfied if a difference of treatment is to be considered non-discriminatory: there must be a genuine and determining occupational requirement, the objective must be legitimate and the requirement proportionate. No elements of this test appear in Regulation 7(3) of the Employment Equality (Sexual Orientation) Regulations [The] Commission maintains that the wording used in regulation 7(3) of the Employment Equality (Sexual Orientation) Regulations 2003 is too broad, going beyond the definition of a genuine occupational requirement allowed under Article 4(1) of the Directive… The wording of the 2003 Regulations contradicts the provision under Article 4(2) of the Directive which provides that permitted differences of treatment based on religion ‘should not justify discrimination on another ground’.

12. (un)equal pay
s.64: expressly applies to those holding personal or private offices, as well as to employees, and to non-contemporaneous comparators
S.71(1) This section applies in relation to a term of a person’s work—
(a) that relates to pay, but
(b) in relation to which a sex equality clause or rule has no effect.
(2) The relevant sex discrimination provision … has no effect in relation to the term except in so far as treatment of the person amounts to a contravention of the provision by virtue of section 13 or 14 [direct discrimination].

13. (un)equal pay
s.69(1) The sex equality clause in A’s terms has no effect in relation to a difference between A’s terms and B’s terms if the responsible person shows that the difference is because of a material factor reliance on which—
(a) does not involve treating A less favourably because of A’s sex than the responsible person treats B, and
(b) if the factor is within subsection (2), is a proportionate means of achieving a legitimate aim.
(2) A factor is within this subsection if A shows that, as a result of the factor, A and persons of the same sex doing work equal to A’s are put at a particular disadvantage when compared with persons of the opposite sex doing work equal to A’s.
(3) For the purposes of subsection (1), the long-term objective of reducing inequality between men’s and women’s terms of work is always to be regarded as a legitimate aim.
69 Defence of material factor
(1) The sex equality clause in A’s terms has no effect in relation to a difference between A’s terms and B’s terms if the responsible person shows that the difference is because of a material factor reliance on which—
does not involve treating A less favourably because of A’s sex than the responsible person treats B, and
(b) if the factor is within subsection (2), is a proportionate means of achieving a legitimate aim.
(2) A factor is within this subsection if A shows that, as a result of the factor, A and persons of the same sex doing work equal to A’s are put at a particular disadvantage when compared with persons of the opposite sex doing work equal to A’s.
(3) For the purposes of subsection (1), the long-term objective of reducing inequality between men’s and women’s terms of work is always to be regarded as a legitimate aim.

14. (un)equal pay
s. 77 (1) A term of a person’s work that purports to prevent or restrict the person (P) from disclosing or seeking to disclose information about the terms of P’s work is unenforceable against P in so far as P makes or seeks to make a relevant pay disclosure.
(2) A term of a person’s work that purports to prevent or restrict the person (P) from seeking disclosure of information from a colleague about the terms of the colleague’s work is unenforceable against P in so far as P seeks a relevant pay disclosure from the colleague; and “colleague” includes a former colleague in relation to the work in question.
(3) A disclosure is a relevant pay disclosure if made for the purpose of enabling the person who makes it, or the person to whom it is made, to find out whether or to what extent there is, in relation to the work in question, a connection between pay and having (or not having) a particular protected characteristic.
(4) The following are to be treated as protected acts for the purposes of the relevant victimisation provision—
(a) seeking a disclosure that would be a relevant pay disclosure;
(b) making or seeking to make a relevant pay disclosure;
(c) receiving information disclosed in a relevant pay disclosure�

15. (un)equal pay
S.78(1) provides for Regulations to be made (not prior to 2013) requiring employers of at least 250 staff ‘to publish information, of a nature to be specified, relating to the pay of employees for the purpose of showing whether, by reference to factors of such description as is prescribed, there are differences in the pay of male and female employees’
78 Gender pay gap information
(1) Regulations may require employers to publish information relating to the pay of employees for the purpose of showing whether, by reference to factors of such description as is prescribed, there are differences in the pay of male and female employees.
(2) This section does not apply to—
(a) an employer who has fewer than 250 employees;
(b) a person specified in Schedule 19;
(c) a government department or part of the armed forces not specified in
that Schedule.
(3) The regulations may prescribe—
(a) descriptions of employer;
(b) descriptions of employee;
(c) how to calculate the number of employees that an employer has;
(d) descriptions of information;
(e) the time at which information is to be published;
(f) the form and manner in which it is to be published.
(4) Regulations under subsection (3)(e) may not require an employer, after the first publication of information, to publish information more frequently than at intervals of 12 months.
(5) The regulations may make provision for a failure to comply with the regulations—
(a) to be an offence punishable on summary conviction by a fine not exceeding level 5 on the standard scale;
(b) to be enforced, otherwise than as an offence, by such means as are prescribed.
(6) The reference to a failure to comply with the regulations includes a reference to a failure by a person acting on behalf of an employer.

16. (un)equal pay: the JCHR
the Bill ‘does not establish new procedures for providing arbitration in equal pay disputes nor does it impose positive duties on employers to take steps to monitor and respond to patterns of pay inequality…
Combined with the absence of positive duties to monitor and act upon patterns of pay inequality, it is difficult to use equal pay legislation to challenge patterns of unequal pay linked to “occupational segregation”…
The CEDAW Committee expressed particular concern about “the persistence of occupational segregation between women and men in the labour market and the continuing pay gap, one of the highest in Europe”. It recommended that the UK “take proactive and concrete measures to eliminate occupational segregation and to close the pay gap between women and men, including through the introduction of mandatory pay audits”’.
78 Gender pay gap information
(1) Regulations may require employers to publish information relating to the pay of employees for the purpose of showing whether, by reference to factors of such description as is prescribed, there are differences in the pay of male and female employees.
(2) This section does not apply to—
(a) an employer who has fewer than 250 employees;
(b) a person specified in Schedule 19;
(c) a government department or part of the armed forces not specified in
that Schedule.
(3) The regulations may prescribe—
(a) descriptions of employer;
(b) descriptions of employee;
(c) how to calculate the number of employees that an employer has;
(d) descriptions of information;
(e) the time at which information is to be published;
(f) the form and manner in which it is to be published.
(4) Regulations under subsection (3)(e) may not require an employer, after the first publication of information, to publish information more frequently than at intervals of 12 months.
(5) The regulations may make provision for a failure to comply with the regulations—
(a) to be an offence punishable on summary conviction by a fine not exceeding level 5 on the standard scale;
(b) to be enforced, otherwise than as an offence, by such means as are prescribed.
(6) The reference to a failure to comply with the regulations includes a reference to a failure by a person acting on behalf of an employer.

17. (un)equal pay: the JCHR
Para 189 “In general, we consider that the equal pay provisions of the Bill represent a wasted opportunity to enhance protection against gender inequality by clarifying and improving a complex and increasingly outmoded area of law. The current structure of equal pay legislation, which the Bill re-enacts in a largely unchanged manner, appears increasingly unable to cope with the complexity of equal pay claims. The existing equal pay framework also struggles to address issues of occupational segregation, identified by the CEDAW Committee as a persistent problem which contributes greatly to the size of the pay gap between men and women in the UK”.
78 Gender pay gap information
(1) Regulations may require employers to publish information relating to the pay of employees for the purpose of showing whether, by reference to factors of such description as is prescribed, there are differences in the pay of male and female employees.
(2) This section does not apply to—
(a) an employer who has fewer than 250 employees;
(b) a person specified in Schedule 19;
(c) a government department or part of the armed forces not specified in
that Schedule.
(3) The regulations may prescribe—
(a) descriptions of employer;
(b) descriptions of employee;
(c) how to calculate the number of employees that an employer has;
(d) descriptions of information;
(e) the time at which information is to be published;
(f) the form and manner in which it is to be published.
(4) Regulations under subsection (3)(e) may not require an employer, after the first publication of information, to publish information more frequently than at intervals of 12 months.
(5) The regulations may make provision for a failure to comply with the regulations—
(a) to be an offence punishable on summary conviction by a fine not exceeding level 5 on the standard scale;
(b) to be enforced, otherwise than as an offence, by such means as are prescribed.
(6) The reference to a failure to comply with the regulations includes a reference to a failure by a person acting on behalf of an employer.

18. A lost opportunity?

19. individualistic approach
failure radically to reform (un)equal pay
broader concerns about the general assimilation of religion/ belief with status-related grounds such as race, sex etc
implementation