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Annie Hayes



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Hard(y) Law Talk: The ‘equality’ treadmill


Equality and diversity are now commonplace buzz words in the HR community. But is it just lip service or does it have some meaning? What does it truly mean and what can be achieved?

In its tidying up exercise of matters long overdue reform, the Government has introduced its Equality Bill. As the Minister said when introducing the Bill to Parliament “It’s time to update well-used and outdated statutory provisions.” So, it’s ‘equality, equality, equality’.

In October 2003, the Government announced its intention to bring together the work of the existing Commissions in a new body that would also take responsibility for new laws on age, religion or belief and sexual orientation, and for the first time provide institutional support for human rights.

The White Paper (Cm 6185 “Fairness for All: A New Commission for Equality and Human Rights“) was published on 12 May 2004, set out the Government’s detailed proposals for the CEHR, including its role, duties and powers, and outlined the way in which the CEHR will deliver services to its key stakeholders.

The consequential Bill is in four Parts and has four Schedules.

Part 1 establishes the CEHR and sets out its duties, general powers, and enforcement powers. Dissolution of the existing equality Commissions is also covered in this Part of the Bill. Whilst Part 2 sets out provisions prohibiting sex discrimination in the exercise of public functions and creates a public sector duty to have due regard to the need to eliminate unlawful discrimination and to promote equality of opportunity between women and men.

The first equality seeks to establish the Commission for Equality and Human Rights (CEHR). Most significantly, the CEHR will take on the work of the existing equality Commissions (the Equal Opportunities Commission (EOC), the Commission for Racial Equality (CRE), and the Disability Rights Commission (DRC)) and will additionally assume responsibility for promoting equality and combating unlawful discrimination in three new strands, namely sexual orientation, religion or belief, and age. The CEHR will also have responsibility for the promotion of human rights.

Historically, the Sex Discrimination Act 1975, Race Relations Act 1976 and the Disability Rights Commission Act 1999 created the EOC, CRE, and DRC respectively.

The Commissions are conferred by their individual founding legislation with responsibility for combating unlawful discrimination and promoting equality of opportunity as regards gender, race or disability.

The Employment Equality (Sexual Orientation) Regulations 2003 and Employment Equality (Religion or Belief) Regulations 2003 made unlawful discrimination on the grounds of sexual orientation and religion or belief in employment and vocational training. These Regulations implement the UK’s obligations under the EC Employment Directive (Directive 2000/78/EC). There is currently no statutory institution with responsibility for promoting equality or combating unlawful discrimination in these new equality strands.

Similarly, although all public authorities must adhere to the provisions of the Human Rights Act 1998, there is currently no statutory body charged with promoting human rights in the UK.

In October 2002, the Government issued a consultation paper (“Equality and Diversity: Making it Happen – Consultation on future structures for equality institutions“) comprising a review of existing institutional support for equality legislation and options for the future, in particular the feasibility of creating a single equality commission for Great Britain. A majority of respondents to the consultation supported the establishment of a single equality body.

Second equality makes unlawful discrimination on the grounds of religion or belief in the provision of goods, facilities and services, education, the use and disposal of premises, and the exercise of public functions.

The third and final equality creates a duty on public authorities to promote equality of opportunity between women and men (‘the gender duty’), and prohibit sex discrimination in the exercise of public functions.

So can HR practitioners now sleep soundly at night in the full knowledge that they are providing consistently fair equal treatment? If not, the end result remains unchanged.

Employment Tribunals will declare discrimination, award compensation and make recommendations, accordingly. After all, the burden of proof that the Respondent employer must disprove the discrimination claimed.

To that end, HR practitioners as ever need to embrace the change and balance legal compliance with pragmatic policies and procedures. The well-received legal mantra ‘compliance, policy and procedures’ will stand those less fortunate companies in good stead in the Employment Tribunal witness box.

Dr Stephen Hardy is Senior Lecturer in Law, researching in Employment and EU law at the University of Manchester.

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Annie Hayes


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