Discrimination Law Review: A Framework for Fairness Response by Commission for Racial Equality September 2007 Executive Summary of Recommendations Guiding Principles We consider that the structure of progressive and modern equality legislation requires a set of principles to guide the drafting of legislation and its implementation. These should include: Clarity, coherence and, wherever possible and appropriate, consistency in protection and duties across and between all the protected strands. Simple, effective and efficient procedures for enforcement. Access to justice and fair hearings must be guiding principles for people seeking individual legal redress for acts of discrimination. This shall include access to publicly funded independent legal advice and assistance where appropriate. Sanctions must be effective, proportionate and dissuasive. Wide dissemination of information and advice on the future single equality act. 1
A Constitutional Right to Equality (Compatibility Statements) We recommend that, following the Human Rights Act model, when new legislation is proposed, the Minister responsible should be expected to certify that the new measure is consistent with and does not conflict with the principle of equal treatment in the Directive. Where the Minister cannot so certify then he or she would be expected to explain in a Memorandum attached to the Bill why the new measure should be enacted in its proposed form and Parliament should only be asked to approve such a measure when it has been given a satisfactory explanation for the conflict with the principle of equal treatment. A Purpose Clause We recommend the inclusion in the legislation of a clear purpose clause setting out the aims and objectives of the law. Intersectional Discrimination We recommend a broader and more flexible definition of prohibited ground that works within the existing set of equality grounds and which can accommodate intersectional claims. Direct Discrimination, Less Favourable Treatment and the Role of Comparators We recommend the removal of the legal requirement for a comparator in direct discrimination cases based upon the recognition that comparison and not a statutory comparator is essential to definition of direct discrimination. 2
Issues in Indirect Discrimination We welcome a harmonised definition of indirect discrimination across all strands. We recommend that anticipatory actions for unlawful indirect discrimination be permitted by adopting the definition of indirect discrimination in article 2 of the Race Directive. We recommend that in order to give full effect to EU standards, that appropriate and necessary replaces proportionality, so that the means part of the test should read as the means of achieving that [legitimate] aim are appropriate and necessary. Issues in Victimisation We recommend a definition of victimisation that combines the current breadth of protected acts under s.2(1) of the RRA, with the proposal to move away from comparators as a legal requirement to establish unlawful victimisation. We recommend express provision to extend the new burden of proof test to unlawful victimisation. Issues in Harassment We welcome the intention to the statutory provisions on harassment so that they apply to colour and nationality. The Commission recommends that the free standing provision on harassment be extended to the full range of public functions and not just those public functions covered under article 3 of the Race Equality Directive: social 3
security, healthcare, any form of social protection and any form of social advantage. We support the extension of statutory protection from harassment on all grounds to non-employment areas. We recommend that test for harassment on the grounds of religion and belief should be the same as that used in the other grounds. We recommend that there should be no exceptions to this coverage in respect of religion and belief. We recommend that there be statutory criteria to assist courts and tribunals in their determinations on when third-party liability arises. The Scope of the Single Equality Legislation We recommend that volunteering be brought within the scope of the legislations. Public Sector Equality Duties We support the adoption of a cross-strand equality duty to replace the existing strand-specific obligations in race, disability and gender. We strongly recommend that a new public sector equality duty include an express obligation to eliminate unlawful discrimination and harassment; and explicit emphasis on good race & faith relations, as part of the duty to promote good relations. We also strongly recommend that the key policy approach of mainstreaming is retained in the new equality duty, rather than moving to only requiring 4
public bodies to take action towards merely a limited set of equality priority objectives. The equality duty should set out clear equality goals, such as eliminating unlawful discrimination and harassment, and these should tie in with other national and country equality outcomes. We recommend that there should be an equality leadership duty on Secretaries of State and heads of the devolved bodies. There must be clear minimum standards in the legislation to underpin the and support the delivery of the equality duty. We recommend a new procurement equality duty. Positive Action or Balancing Measures We recommend the replacement of current provisions on positive action with a broader more flexible provision such as that in the Race Directive article 5. We support the extension of the operation of the current provision for women only short-lists beyond 2015 where this is necessary and appropriate. We do not support ethnic minority shortlists at this time. The Private Sector and Equality We recommend that there should be a general statutory requirement on private sector employers to monitor the workforce, to carry out equal pay reviews and to publish the results of such monitoring. 5
Effective Dispute Resolution, Enforcement and Remedies Interim relief should be available to preserve a claimant s position pending a hearing provided that the relief is sought promptly and the remedy appears appropriate to the tribunal of fact. The tribunal of fact should have the power to order re-instatement or reengagement where it appears appropriate to do so. Tribunals and courts should have the power to grant injunctive relief to individuals pending a final hearing for example, an employer should be prevented from going ahead with an appointment individual where there is a claim of discrimination. A preventative remedy should be available where a person has stated a directly discriminatory intention to avoid that intention being put into practice Courts & Employment Tribunals Irrespective of venue, the starting point must always be: Easy access to justice and to sufficiently publicly funded independent legal advice and assistance where appropriate. Procedures for enforcement should be simple, effective, and efficient. Sanctions must be effective, proportionate and dissuasive. Multiple jurisdictional claims should continue to be heard in the civil courts. More use should be made assessors in discrimination cases. Enhance discrimination expertise in county courts and Sheriff courts. 6
Extend the powers of the courts and tribunals to hear representative actions and class actions. We recommend the extension of the power of the tribunals to make recommendations. Similar powers should be expressly given to the civil courts. Statutory Exceptions Extend the genuine occupational requirement exception (GOR) across all strands. The GOR should be drawn narrowly and subject to a proportionality test. Repeal the Genuine Occupational Qualification exception in the Race Relations Act 1976 in its entirety. Introduce a Genuine Service Requirement exception (GSR) which expressly states that its objective is to secure equality in practice. Repeal the RRA76 sections 9, 75(5), 76 and amend sections 19D, 19F, 41, 75(8). Remove the exceptions listed in Table 2 in Annex A but retain the exception for training in skills to be used outside the UK (RRA section 6). 7