#3638 - Equality Act 2010 - Labour Law

ESSAY PLAN 1 – Equality Act 2010

What is equality?

Hepple and Barnard (2000)

Fredman – four types of substantive equality; 1) of results; 2) of opportunity; 3) equality as auxiliary to substantive rights; 4) broad value driven approach.

Equal chance and opportunity. Moral imperative plus waste of potential talent and skills

Sen – equality of opportunities includes both (1) the opportunity to pursue one’s chosen objectives and (2) the process of choice itself. Former can take account the outcome itself and how come to outcome.

Collins (2003) – social inclusion

Barnard (2004) – solidarity = achieve objectives of integration and participation. Social inclusion has a positive as well as a negative dimension – while the negative side of solidarity prohibits discrimination and requires the removal of any measure or practice that constitutes an obstacle to an individual’s participation, the positive side of solidarity imposes obligations to take active measures to integrate the individual into society.

Hepple – aims of transformative equality do have much in common with the ideas of social inclusion or solidarity- primary target is to assist disadvantaged people and to facilitate their integration and participation in society.

Overall aim of Equality Act is to achieve harmonisation, simplification and modernisation of Equality Law.

Lawson, 2011 – “changed the landscape of equality law in Britain”

Hepple, 2011 – two steps towards a model of reflexive regulation (McCrudden) in 2006 and 2011 Acts:

1) establishing the single Equality and HR Commission (EHRC) with extensive powers to promote equality, conduct inquiries and investigations and enforce the legislation;

2) Public sector equality duty which it was believed would make it necessary for public employers to engage with their employees and other interest groups.

Comprehensive – managed to limit the exceptions to the general principles e.g. defence of justification of direct discrimination allowed only for age discrimination and discrimination arising from disability.

Equality act is fifth generation – continuation of the move towards comprehensive equality with the significant shift to a regime based on a unitary HR perspective. Transformative equality – positive measures?

Just a lawyers’ exercise drafting??

Solanke, 2011 – Act “altered the traditional structure by bringing the nine separate statuses into a single Act. Just one statute as well as one enforcement agency (EHRC)

Solanke, 2011 – “the EqA 2010 is in textual terms a step forward yet conceptually it has not moved at all because of the atomised thinking”

Hepple, 2011 – fifth generation

100 different pieces of legislation before

Now 218 sections, 16 Parts, 28 schedules. High quality legal advice needed – people cannot afford? Without effective enforcement the rights set out in the Act will be “like paper tigers, fierce in appearance but missing in tooth and claw” (Hepple).

Substantive change

The protected characteristics

PROs – harmonisations, clarifies and extends all across 9- same tests.

Solanke, 2011 – “specificity has created a system of single-dimension silos”.

Solanke, 2011 – even the non-enacted s14: single-dimension logic of the silos underpins this new provision: it fails to centralise the synergy inherent in intersectionality.

Solanke, 2011 – singular logic... has created two blind spots: 1) thematic: i.e. fattism; where law can’t see issues. 2) structural: intersectionality e.g. race and gender e.g. Bahl –

Solanke, 2011 – “rigidity of the silos...create two problems: maturing legal framework that cannot accommodate intersectional discrimination and an inflexibility to respond to new prejudices.

Solanke, 2011 – without synergy, historicity is lost – assumed can select which characteristic damages their life; lack of choice, no scope for combination secondly, voices pushed back to margins.

Solanke, 2011 – should have been all about stigma rather than simply immutability (i.e. no choice over certain factors) so get rid of silos. A stigma is a permanent blemish or stain. Allows individuals to be seen as holistic beings.

Hepple – groups not included: children from protection against age discrimination. What about birth, social origin, political opinion and language? Immigrants, foreigners, asylum seekers? Single persons? Parents and carers.

Equality Act seems to be concerned only with status equality – particular characteristics and groups. But what about intrinsic values of human life etc – Dworkin.

Risk with status-based positive measures that if not carefully designed could reinforce stereotypes e.g. Lommers (ECJ) - decision that to provide childcare facilities for working mothers and not working fathers was legitimate and proportionate.

Fredman (2010) – “genuinely transformative change can only occur when both parents are equally responsible for childcare. Special measures for women, however well intentions, run the risk of reinforcing their primary role as child-carers and therefore perpetuates their disadvantage. This does not mean that there should be no special provision for parents. That would revert to formal equality...instead measures will only achieve real change if they refer to both parents”.

• Disability

Lawson, 2011 – disappointing that requirement for an impairment to have any effect on normal day-to-day activities, let alone an effect which is substantial and long term, has been retained: takes emphasis away from behaviour of D’s and to particularities of the C’s bodily functions and sends out message that law might just be for the few.

Medical definition might be in conflict with UN Convention on the Rights of Persons with Disabilities.

Alldridge (2006) – def of disability replicates medical model rather than social model e.g. requirement to show physical or mental impairment which has a long term and substantial adverse effect. The focus is on the individual’s medical diagnosis rather than on the handicaps or obstacles placed on disabled persons by society and environment. Should have adopted inclusionary approach covering all impairments.

• Religion

Hepple, 2010 – failure to introduce the notion of discrimination arising from religion and belief (like in disability) has been identified as a missed opportunity – argues it would have avoided the need to make “hair-splitting distinctions between direct and indirect discrimination”

Harmonisation may have gone too far – potential conflict between the absence of a defence of justification of direct religious discrimination and the availability of such a defence in respect of limitations on the freedom to manifest one’s religion under Art 9(2).

Cambridge review recommended a concept of reasonable adjustments to meet religious diversity but this was rejected. The EA 2010 could have come closer to ideas of fundamental values and dignity by “avoiding hair-splitting distinctions between direct and indirect discrimination in the context of religion” (McColgan, 2009) and by adopting a concept of discrimination arising from religion or belief which combines direct and indirect discrimination and reasonable accommodation. In the absence of such a concept there is going to be a lot of litigation and debate about symbols of faith.

• Section 14 (not enacted)

Solanke, 2011 – not a panacea and will not replace the silos e.g. single strand and additive claims are still expected and a multiple discrimination claim will fail if lawful by virtue of another provision in Act such as OR.

Only would have applied to direct discrimination and not to pregnancy, marital status or marriage/civil partnerships

Bahl – discriminated against both on fact Asian and on ground that she was a woman. CoA held should have treated each ground separated. C had to choose. Difficulty finding comparator!

Direct discrimination

Positive = managed to limit exceptions to the general principles of equality, but making defence of justification of direct discrim allowed only for age discrimination.

Still has requirement for a comparator in direct discrimination claims

When are two people sufficiently similar to qualify for equal treatment? comparison is in effect requirement for assimilation or conformity.

No violation of formal equality if employer treats all employees equally badly; levelling down. Retains this principle of formal equality through direct discrimination.

Pearce – lesbian teacher who got a lot of abuse from kids. Male teacher who was gay also subject to abuse so she lost case: shows problem of discrim model – allows for hypothetical comparator; if treated as badly then lose. Failed as gay man would be treated just as bad.

Kettle Produce – less favourable treated satisfied regardlessness of whether the individual benefits as a result – if comparators treated equally as badly then no less favourable treatment.

Avdel Systems – can level down!

Prob with formal equality is that it starts from wrong assumptions – assumes that men and women similarly situated and overlooks fact women have caring responsibilities and not same education.

Positive move = perceived and associated discrimination- harassment based on perception and association: s26

Furthermore s27 – victimisation: no need for comparator anymore.

Indirect discrimination

This is a particularly welcome aspect of harmonisation – indirect discrim applies across all protected characteristics now. Whether provision, criterion, practice puts a group at a particular disadvantage can be justified. Standard defence of proportionate justified aim applies across whole board.

Fredman (1999) – indirect discrim is results...