UNIFI is a TUCaffiliated union representing some 160,000 workers across the financesector. This submission responds to theGovernments Consultation on Equality and Diversity The Way Ahead.
We welcome the opportunity to respondto this consultation as we acknowledge the importance of effective equalitylegislation
The Governments aim is for thelegislation to be both coherent and easier to use. This will not be achieved in the current approach of piecemeallegislation. We support theintroduction of one equality bill to cover all forms of discrimination toachieve this aim and to ensure the efficient operation of the proposed single equalitycommission.
It would appear that the Government isintent on implementing the minimum standards required under theDirectives. We would support that equaltreatment in the context of sexual orientation, religion or belief and ageshould be extended to social protection, education, goods and servicesavailable to the public and social advantages.
We support the positive right to befree of discrimination which should be enhanced by positive duties on allemployers to promote equality. We arealso in favour of positive discrimination for disadvantaged groups.
Under the Equal Treatment Directivethe Government is under a duty to encourage a dialogue with non-governmentalorganisations which have an interest in alleviating discrimination. This has not been addressed in either of theconsultations to-date
We would advocate that the concept ofindirect sexual discrimination should be introduced in the amendments to theDDA.
It is vital that Codes of Practice andclear guidance are provided for both employers and employees.
1. UNIFI is a TUC affiliated unionrepresenting some 160,000 workers across the finance sector. The union represents staff in all grades andoccupations, not only in the major English and Scottish banks, but also in investmentbanks, the Bank of England, insurance companies, building societies, financehouses and business services companies.
2. We welcome the opportunity to commenton the Government consultation on Equality and Diversity The WayAhead. We note that the consultationand draft regulations cover UK obligations under the following EuropeanDirectives:
The Race Directive (2000) whichprohibits race discrimination in employment and training, the provision ofgoods and services, education and social protection
The Employment Directive (2000) whichcovers employment and vocational training only prohibiting discrimination ongrounds of sexual orientation, religion, disability and age
The Equal Treatment Directive (1975)which prohibits sex discrimination in the fields of employment and vocationaltraining. An amendment to Directivebeing published on 23 September 2002.
3. In our previous submission onimplementing the Employment and Race Directives we acknowledged the importanceof effective equality legislation and supported the Government in its aim forthis legislation to be both coherent and easier to use. However, we must reiterate that coherenceand ease of use will not be achieved by piecemeal legislation. We would support the introduction of oneequality bill to cover all forms of discrimination. Equally we consider that it is vital for positive duties to formpart of this equality bill if the legislation is be thoroughly enforced.
GENERAL ISSUES
4.1 At present it is proposed that the newlegislation will take the form of three separate sets of regulations. As stated above we support the introductionof a single Equality Act by the end of the Governments term with commonstandards across all aspects. This willbe vital if the Government wishes to achieve coherence in equality legislation andwill ensure the more efficient operation of the proposed single equalitycommission.
4.2 We are concerned that the Governmentis intent on implementing the minimum standards required under the Directives.We accept that the scope of the Employment Directive is limited to employmentand training fields. However, the RaceDirective also applies to social protection, education, goods and servicesavailable to the public and social advantages.We would support that these areas should also be applied to equaltreatment in the context of sexual orientation, religion or belief andage. This would not only provide forcoherence, but also provide protection from discrimination in these key areas.
4.3 We support the positive right to befree of discrimination which should be enhanced by positive duties on allemployers to promote equality. Theseduties should include compulsory equal pay audits and monitoring ofrecruitment, training and promotion practices.Companies should also be required to disclose details on the managementof human capital as recommended in the Kingsmill Review which should apply toall equality issues.
4.4 The Equal Treatment Directive statesthat the Government is under a duty to encourage a dialogue withnon-governmental organisations which have a legitimate interest in contributingto the fights against discrimination.This has not been mentioned in this consultation which is disappointingas attention was drawn to the fact in not only UNIFIs previous submission, butalso those of the TUC and other unions.
Direct Discrimination
5. There is an inconsistent approachbetween the draft sexual orientation and religion regulations and the draftdisability discrimination regulations.The former prohibits direct discrimination in a similar manner to theSDA and RDA. However, the DDAsdefinition still allows for justification of less favourable treatment for areason which relates to a disabled persons disability. We note the change that will ensure thatemployers cannot justify discrimination which happens because someone has adisability, regardless of their ability to do a job or training. However, we would support the TUCs viewthat this restriction on justification is sufficient to comply with the EmploymentEquality Directive. Less favourabletreatment should only be justifiable where the individual is not competent,capable or available to perform the key components of the job even whenreasonable adjustments have been taken into account.
Indirect Discrimination
6.1 We agree that a coherent approach toindirect discrimination will make it easier for employers to identify andchange unfair practices. Equally itwill make the law more straightforward for people who believe that they havebeen treated unfairly on two or more grounds. Additionally, it is welcome thatthe legislation will recognise that it is not always possible or necessary touse detailed statistical calculations to show particular disadvantage to thegroup concerned.
6.2 However, we are supportive of theTUCs view that the Government should take the opportunity to harmonise otherlegislation. The SDA will remainun-amended for the time being and the RRA is to be partially amended applyingthe new definition of indirect sexual discrimination on the grounds of race,national or ethnic origins, but leaving other applicants under the RRA on thegrounds of colour or nationality to use the existing definition
6.3 The disability regulations do notsupport the introduction of a concept of indirect sexual discrimination, butmaintains the reasonable adjustment provisions. As indicated in our previous submission we believe that indirectsexual discrimination offers better opportunities to challenge discrimination. The reasonable adjustment provisions are notproactive and only relate to an individual in a particular case, rather than asa group. Indirect discrimination provisions would allow forproactive action against policies and practices which disadvantage groups ofpeople. We also note that the TUC hasquestioned whether the indirect discrimination provisions of the EmploymentEquality Directive are adequately covered by the reasonable adjustment optionsin the DDA.
7 Harassment
7.1 It is welcome that the equalitylegislation will make it explicit that equality legislation covers harassmentand that the perception of the complainant will be taken into account atTribunal proceedings. However, we wouldargue for greater weight to be given to the perception of the complainant inthe regulations. We would suggest thatthe test should be based on whether the harassment was such to harm theemployees working environment. Thiswould provide protection for the sensitivity of all complainants.
8. Victimisation
8.1 We support the TUCs view that theprotection against victimisation because a person has made a complaint aboutdiscrimination should be wider under the Directives and that there should be norequirement to establish a comparator.
9. Occupational Requirements
9.1 The draft regulations are set out inmuch more general terms than the existing genuine occupational requirementsexception for employment in the SDA and RDA.The exception largely follows the wording of the Directives, but doesnot specify that the employers objective must be legitimate.
10. Positive Action
10.1 We do not support the proposal thatemployers would only be able to take positive action as defined under theRRA. We believe that the DDA definitionshould be applied to all equality legislation allowing positive action infavour of the discriminated group, thus supporting positivediscrimination. The Directives wouldallow much more scope in the legislation if the Government wished to gofurther.
11. Discrimination after employment
11.1 We welcome the introduction of legislation for discriminationafter employment. However, we have someconcerns that the applicants will need to show that the discrimination orharassment arises out of and is closely connected to the previous employmentrelationship. We believe that theclosely connected hurdle may prove to be a problem in practice.
12. How the law will work
12.1 We support the introduction of therequirement that employers must respond to the questionnaire within 8 weeksunless there is a good reason. Thiswill make the process of handling discrimination cases more efficient.
12.2 Equally the shift in the burden ofproof to the employer once the complainant has produced clear evidenceindicating discrimination is welcome.This will provide for coherence across all equality legislation and strengthensthe law in employees favour.
12.3 We believe that appropriate andrelevant organisations should be able to bring class actions to employmenttribunals. This would have the benefitof relieving the workload of tribunals.Additionally, successful class actions are more likely to result inchanges within the workplace to alleviate discriminatory practices than in atribunal case brought be an individual.
12.4 We would stress that it is vital thatCodes of Practice and clear guidance are provided for both employers andemployees. The Codes of Practice should have enforceable powers as statutoryinstruments if necessary. Alongside this there must be clear communication ofboth the new equality legislation and changes to existing legislation. As stated in our previous submission werecommend that the Government should consult thoroughly with the equalityCommissions, ACAS, the TUC, trade unions, Citizens Advice Bureau andappropriate employers organisations regarding preparation of guidance and waysof communication. It is also importantthe Government budgets for the production of guidance and communication.
13 SPECIFIC ISSUES
Race
13.1 As indicated earlier we are concernedthat the RRA will only be partially amended.This does not support the Governments aims of providing coherence andefficiency. Discrimination on thegrounds of colour and nationality will not be subject to the new definitionsand reforms, including the burden of proof changes.
Sexual Orientation
13.2 The draft regulations allowdiscrimination in favour of married people in respect of pension schemes andbenefits. The TUC has received clearlegal advice that the Government is not entitled to legislate to implement theEmployment Equality Directive in this manner.Therefore, we would support the regulations making it unlawful torestrict occupational pension benefits to surviving spouses and excludepartners.
13.3 The DTI are consulting on whetherproviders of insurance services and trustees or managers of pensions schemesshould be made liable for sexual orientation discrimination as well asemployers. Women and disabled peopleare able to make discrimination claims against these organisations and we wouldnot support the exclusion of lesbian, gay and bisexual people from this right.
Religion and Belief
13.4 We would argue that in all cases ofgenuine occupational requirement that the draft regulations should be amendedto require that the employer must show that their objective is legitimate inline with the Directive.
13.5 Additionally the separate ethosprovision in the Employment Equality Directive states that a requirement mustalso be justified and should not justify discrimination on another ground. The draft regulations should be amended totake account of these requirements.
Disability
13.6 We support the removal of theexemption for small employers, the provisions on discriminatory adverts and theprotection for disabled people against indirect discrimination in theprovisions of occupational pensions, group insurance and performance-relatedpay schemes. This will provide additionalprotection to disabled people.
13.7 As previously indicated we wouldadvocate that indirect discrimination legislation is introduced to betterprotect disabled people.
13.8 Additionally, we would argue thatthere are problems with the definition of disability. Many cases at tribunals are failing becausethe complainant cannot establish that they have a disability which islong-term. A key example is peoplewho are suffering from mental illness where stress and anxiety may not beclassed as a disability. Equally,people are not protected by the DDA if they are discriminated against becauseof a perceived disability.
13.9 We are equally concerned about thevery low test applied by courts and tribunals as to whether less favourabletreatment on the grounds of disability can be justified. The draft regulationsdo not address this issue and may not adequately implement the EuropeanFramework Directive in this approach. In its present format the law is notproviding effective protection against disability discrimination.
Sex Discrimination
13.10 Although GB law already protects pregnant women and new mothers from
discrimination we would support the amendmentof the SDA to specifically prohibit discrimination on grounds of pregnancy andmaternity. This will provide clarity tothe legislation rather than relying on judgements of the European Court ofJustice.
Equal Pay
13.11 The current time limit for equal pay claims is six months. We are disappointed that this will now onlybe extended in certain circumstances rather than the original suggestion of ageneral power for tribunals to extend the time limit if it was just andequitable to do so.
13.12 We welcome that the draft regulations will remove the power foremployment tribunals to strike out a claim on the basis that there is noreasonable grounds to determine that the work of a woman and a man are of equalvalue.
13.13 However, we are concerned that a provision will be included to allowa Tribunal to conclude that two jobs are not of equal value where they havealready been rated differently in a job evaluation scheme providing that thescheme is satisfactory. Job evaluationschemes cannot always be relied upon because there will also be a degree ofsubjectivity in the merit allocated to certain functions and attributesrequired for a job. This can result indiscrimination. We would ask that thisprovision be removed from the regulations.
We wouldwelcome the opportunity to discuss the issues further at any level. Our contact details are as follows:-
Karen Cole Tel: 0117 9293724
ResearchOfficer E:karen.cole@unifi.org.uk
UNIFI
South andWest Regional Office
6thFloor
Tower House
Bristol BS1 3BN