Submission date: 4 September 2007

This consultation sought views on the Government’s proposals for simplifying, modernising and making more effective the framework of discrimination. The Government’s stated aim is to produce a Single Equality Bill which is simpler and more effective.

In summary, these are some of the issues ELA commented on in its response:

1. Harmonising definitions and tests

  1. The formal requirement for a comparator in the definition of direct discrimination.
  2. The approach to perception and association protections, in relation to gender reassignment and other discrimination legislation.
  3. Whether the concept of indirect discrimination should be introduced in disability discrimination.
  4. Harmonising the indirect discrimination test and the objective justification tests for all indirect discrimination provisions.
  5. In relation to disability discrimination law, whether the current different justification tests should be replaced with a single objective justification test, and whether to establish a single threshold for triggering the duty to make reasonable adjustments.
  6. Aligning the test for victimisation in discrimination legislation to the test in employment victimisation legislation by removing the requirement for a comparator.
  7. Introducing a genuine occupational requirement test for all grounds of discrimination, except disability.

Although not specifically covered in the consultation document, ELA also raised the following issues under this section for consideration by the Government:

  1. The definition of disability discrimination’s current focus on the extent of the impairment, which causes practical problems for both claimants and employers.
  2. Two current inconsistencies in the disability discrimination legislation with other discrimination legislation:
    (i) that an employee who is instructed by their employer to discriminate against a disabled person has no remedy in law because that employee is not disabled.
    (ii) that someone who does not get a job because they are not disabled has no redress.
  3. In relation to the burden of proof in discrimination cases, ELA highlighted that this is currently one of the most fertile sources of appeals to the EAT and higher courts and suggested that there is a need for simple and practical guidance dealing with what facts are (and are not) likely to shift the burden of proof from the claimant to the respondent.
  4. In relation to territoriality and jurisdiction, ELA suggested consideration be given to making the tests of territorial scope uniform.

2. Equal Pay

  1. Whether the distinction between contractual and non-contractual pay should be retained. ELA discussed in detail the complexities the current regime creates and advocated the removal of this distinction, suggesting a simpler approach.

3. Public Sector Equality Duties

  1. The merits of creating a single equality duty on public authorities to promote race, disability and gender equality, policed by the CEHR.
  2. The approaches to ensuring effective performance of a single public sector equality duty.
  3. Which public authorities the duty should apply to, particularly in relation to bodies which have some private and some public functions.
  4. Whether the duty should be extended to cover age, sexual orientation and religion or belief discrimination.

4. Effective dispute resolution

  1. ELA highlighted the limitations of the current legislative framework where there are multiple discrimination claims and suggested relatively simple changes which would allow Claimants to bring overlapping claims on more than one ground of discrimination.

5. The grounds of discrimination

  1. Whether the capacities listed in relation to ‘day-to-day activities’ in the definition of disability discrimination should be removed or expanded.
  2. In its comments on the proposal to continue to deal with issues relating to parents and carers through specific measures, ELA discussed the inconsistencies in the current law as it applies to carers.

6. Harassment at work

  1. ELA highlighted the difficulties the inconsistencies in the current equality regimes and the Protection from Harassment Act 1997 create and welcomed the opportunity to obtain some coherence in this area of law offered by the advent of the Single Equality Bill.

The members of the ELA working party that produced this response were:
Chairs

Sarah Gregory, Baker & McKenzie LLP


Sarah Gregory, Baker & McKenzie LLP

Alison Wetherfield, McDermott Will & Emery UK LLP

Contributors

Susan Belgrave, Chambers of John Foy QC

Harriet Bowtell, Russell Jones & Walker

Alexandra Carn , Edwin Coe LLP

Simon Cheetham, Ely Place Chambers

Barry Clarke, Russell Jones & Walker

Susan Doris, Freshfields

Jane Fielding, Wragge & Co LLP

Victoria Greig, Collyer Bristow

Charlotte Hamer, Bond Pearce LLP

Mugni Islam-Choudhury, Bevan Brittan LLP

Edward Kemp, 12 King's Bench Walk

Richard Kenyon, Field Fisher Waterhouse LLP

Stephen Levinson, Manches

Paul McFarlane, Weightmans LLP

Suzanne Mckie, Devereux Chambers

Fiona O'Donnell, University of Dundee

Mark Tarran, Practical Law Company

Maeve Vickery, Devon County Council

Julia Wilson, Baker & McKenzie LLP