Equality: A New Framework Report of the Independent Review of the Enforcemen

by Coussey, Mary; Choudhury, Tufyal; Hepple, Bob

• ISBN13: 9781841131597
• ISBN10: 1841131598
• Format: Paperback
• Copyright: 2000-08-04
• Publisher: Hart Publishing

Summary

The need for a legislative framework for ensuring equality of opportunity is not seriously questioned in the UK. However,despite the presence on the Statute book of various significant pieces legislation dating back to the mid 1970s, there remain deep-seated structural disadvantages which blight the lives of many women, Black and Asian people, and disabled persons. The Stephen Lawrence inquiry report highlighted the presence of institutionalised racism in the police. Similar barriers can also be found in other public services and in private sector organisations. There are also insistent demands for the extension of legislation to cover discrimination on other grounds such as religion, age and sexual orientation.Discriminatory behaviour cannot be remedied by legislation alone, or simply by the actions of government, courts and tribunals and Commissions. Political and social leadership, customer and peer pressure, the development of good practices and campaigning all have a crucial part to play. Employers, trade unions, social organisations and clubs, service providers and individuals all have to take voluntary action to achieve the goals of the legislation.One thing that is clear is that the present legislation is badly in need of modernisation. The present acts are outdated, piecemeal and inconsistent. They fall short of the standards set by EU law, international human rights law, and the Human Rights Act. In writing this report, the authors set out to develop an accessible and cost-effective legislative framework for ensuring equality of opportunity, and to propose other measures which will promote equal opportunity policies and spur compliance with those policies. In the course of preparing the report they have considered experience in other countries. They have heard from many individuals and organisations who have either experienced the effects of discrimination or attempted to counter it. They conducted a survey of employers in Britain, Northern Ireland and the USA, which shows that human resource managers are looking for a new more inclusive approach not only to prevent discrimination but also to provide positively for the fair participation of all groups. These views, together with those of an advisory group drawn from government, the Commissions, and tribunals, as well as a panel of academic and practising lawyers, form the backdrop to the recommendations contained in this report. Coming at a time when the Government is committed to introducing new equality legislation the report is bound to be highly influential. It will be essential reading for all those interested in human rights, discrimination and employment law, and human resources management.TABLE OF CONTENTSIntroduction - Aims and MethodologyCh. 1 - Why a new famework is neededCh. 2 - Harmonising legislation and institutionsCh. 3 - Changing organisational policy and behaviourCh. 4 - Making procedures and remedies more effectiveAppendicesThe research was sponsored by the Joseph Rowntree Charitable Trust and the Nuffield Foundation, and was conducted under the auspices of the Centre for Public Law and the Judge Institute of Management Studies in the University of Cambridge.

Author Biography

Sir Bob Hepple QC, FBA is Emeritus Master of Clare College and Emeritus Professor of Law in the University of Cambridge. He is Honorary President of the Industrial Law Society and of the Equal Rights Trust. In 2013 the international Labour Law Research Network gave him an award for distinguished career contribution to labour law, and in 2014 he was awarded the South African Order of Luthuli (Gold) for his exceptional contribution to the struggle for human rights and democracy.
Mary Coussey is a Senior Associate of the Judge Institute of Management Studies in the University of Cambridge.
Tufyal Choudhury is a Lecturer in the Department of Law at Durham University.

Table of Contents

Preface	ix
Lord Lester
Acknowledgments	x
Abbreviations	xi
Executive summary	xiii
Recommendations	xvii
Introduction Aims and Methodology	1	(4)
Why a new framework is needed	5	(16)
Challenges to the present framework	5	(5)
Outdated legislation	5	(2)
The law of the European Union	7	(1)
Devolution	7	(2)
The Human Rights Act 1998	9	(1)
Summary	10	(1)
The changing face of discrimination and disadvantage	10	(6)
Social structure and attitudes	10	(2)
The labour market and unemployment	12	(1)
The gender pay gap	13	(1)
Discrimination	14	(2)
Changed social and employment practices	16	(2)
Towards a new framework	18	(3)
Harmonising legislation and institutions	21	(35)
A single statute?	21	(4)
Defects of the present framework	21	(2)
How to harmonise	23	(2)
Principles	25	(2)
The concepts of equality and discrimination	27	(8)
Direct discrimination	27	(1)
Victimisation	27	(2)
Knowledge, intention and motivation	29	(1)
Indirect discrimination	30	(2)
Equality of opportunity	32	(1)
Fair participation and fair access	33	(1)
Interpretative principles	34	(1)
Justification of discrimination	35	(3)
Direct discrimination	35	(1)
Disability discrimination	36	(1)
Genuine occupational qualification	37	(1)
Reasonable adjustments	37	(1)
Positive action	37	(1)
Harassment and bullying	38	(3)
Grounds of discrimination	41	(10)
General considerations	41	(2)
Specific grounds	43	(1)
Age	43	(1)
Association with protected groups	44	(1)
Disability	45	(1)
Ethnic origin: traveller communities	45	(1)
Genetic discrimination	46	(1)
Marital and family status	47	(1)
Religion or belief	47	(3)
Sexual orientation	50	(1)
Harmonising or merging the commissions	51	(5)
A single commission?	51	(2)
Structure of a single commission	53	(3)
Changing organisational policy and behaviour	56	(30)
Regulatory strategies	56	(3)
Duty on public authorities to promote equality	59	(6)
Purposes	59	(1)
Principles	60	(1)
Scope	61	(1)
Equality schemes	62	(1)
Which authorities and functions?	63	(1)
Enforcement	64	(1)
Employment equity	65	(7)
Lessons from the USA	65	(2)
Northern Ireland	67	(2)
A scheme for Britain	69	(3)
Pay equity	72	(7)
Introduction	72	(1)
EOC and TUC proposals	72	(1)
The Ontario Pay Equity Act	73	(1)
Enforcement of pay equity schemes	73	(3)
Relationship of pay equity to individual right	76	(1)
Pay comparisons	77	(2)
Contract and subsidy compliance	79	(7)
Meaning	79	(1)
Practice in Britain	80	(2)
Northern Ireland	82	(1)
Objections and justifications	82	(1)
Restrictions under EC law	83	(1)
Proposals	84	(2)
Making procedures and remedies more effective	86	(61)
Specialisation and training	86	(4)
A specialist division?	86	(1)
Training of chairmen	87	(2)
Lay members	89	(1)
The title of ``chairman''	90	(1)
Jurisdiction: employment appeal tribunal and county and sheriff courts	90	(3)
Transfer of cases to the Employment Appeal Tribunal	90	(1)
County and sheriff court cases	91	(2)
Pre-hearing matters	93	(6)
Unmeritorious cases	93	(1)
Interlocutory hearings	93	(1)
Questionnaire procedure	94	(1)
Class actions and group litigation	95	(2)
Equal pay claims	97	(2)
The hearing	99	(3)
Length of hearings	99	(1)
Legal help and representation	99	(1)
Burden of proof	100	(2)
Time limits	102	(1)
Remedies	103	(5)
Compensation	103	(2)
Exemplary (punitive) and aggravated damages	105	(1)
Reinstatement and re-engagement	106	(1)
Power to make recommendations	107	(1)
Interim relief	108	(1)
Costs	108	(1)
Conciliation, mediation and arbitration	109	(6)
Appendices
1. Findings from employer case studies	115	(12)
2. Legislation	127	(3)
3. Comparison of legislation	130	(10)
4. Consultations and interviews	140	(3)
5. Selected bibliography	143	(3)
6. Research team, advisory committee and panel of experts	146	(1)
7. Working papers	147