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 ininvestment banks, the Bank of England, insurance companies, building societies,finance houses and business services companies.
2. We welcome the opportunity to commenton the Government consultation on Towards Equality and Diversity Implementing the Employment and Race Directives. We note that the EC Employment and Race Directives will provide acommon framework of protection against unfair discrimination across Europewhich will involve the introduction of new UK legislation to outlawdiscrimination on grounds of age, sexual orientation and religion in employmentand training. The Directives will alsorequire some changes to the Disability Discrimination and Race Relations Acts.
3. UNIFI recognises the importance ofeffective equality legislation and supports the Government in its aim for thislegislation to be both effective and coherent.We agree that discrimination is bad for individuals and also has anegative impact on productivity and profits. However, we do not feel thatcoherence can be achieved by piecemeal legislation and would support theintroduction of one equality bill to cover all forms of discrimination. We would also stress the need for positiveduties as recently introduced in the Race Relations (Amendment) Act 2001.
GENERAL ISSUES
4.1 As stated above we would support theintroduction of a single Equality Act by the end of the Governments term withcommon standards across all aspects.This would allow for both more comprehensive and coherent legislation asemphasised in the consultation paper.
4.2 The scope of the Employment Directiveis limited to employment, vocational guidance and training, membership of andinvolvement in employers or workers organisations or professional bodies,e.g. trade unions and bodies such as the Law Society. However, the Race Directive covers these areas, but in addition,applies to social protection, education, goods and services available to thepublic and social advantages. We wouldadvocate that these areas should also be applied to equal treatment in thecontext of sexual orientation, religion or belief and age. Again, this would provide for coherence, butwe also believe that discrimination of all kinds should be prohibited in theseimportant areas.
4.3 We support the positive right to befree of discrimination which should be enhanced by positive duties on employersto promote equality. These duties should include compulsory equality pay audits and monitoring ofrecruitment and training practices. Wealso support a requirement on companies to disclose details on the managementof human capital as recommended in the Kingsmill Review which should apply toall equality issues.
4.4 Article 11 of the Equal TreatmentDirective requires member States to introduce measures to protect employeesagainst dismissal or other adverse treatment by the employer as a result of anemployee complaint or legal proceedings in respect of the principle of equaltreatment. Therefore, we would advocatethat this should be included as an important protection in all discriminationlaw.
4.5 The Equal Treatment Directive statesthat the Government is under a duty to encourage dialogue with non-governmentalorganisations which have a legitimate interest in contributing to the fightagainst discrimination. This has notbeen mentioned in the consultation document and we would urge the Government toset-up procedures for this dialogue.
Direct Discrimination
4.6 In the absence of one equality statutewe would support the proposal to apply the Race Relations Act definition ofdirect discrimination in the new legislation on sexual orientation, religion orbelief and age.
Indirect Discrimination
4.7 Option 1 would allow for a singledefinition of indirect sexual discrimination which would remove some of thecomplexities for individuals and provide for more coherence on equalitylegislation. Option 2, althoughminimising the changes to the Race Relations Act, would be inconsistent withother equality legislation. Therefore, we would support Option 1.
Harassment
4.8 We would support option 2 which wouldinvolve applying a consistent definition of harassment across all the groundsof discrimination covered by the Directives.This would not only provide more coherence, but also a broaderdefinition of harassment.
4.9 The consultation document has alsosuggested a further change requiring the Tribunal to consider whether areasonable person would have regarded the conduct concerned as violating thedignity of the complainant. Theproblem with this approach as set out in the report for the EuropeanCommission, The dignity of women at work,M Rubenstein (EOR 101), is that it would allow male judges to decide what isoffensive. This equally applies toother forms of discrimination. We wouldsupport the approach, as recommended in the Report, that the complainant shouldestablish whether the harassment was such to harm her working environment. This would provide protection for thesensitivity of all complainants.
Promoting equal treatment
4.10 We would support the introduction of asingle, statutory commission to provide advice, guidance and support onequality matters. We accept that thismay not be possible in the short term, but that the Government should aim tohave the commission established by the end of their term of office. We would stress that the single commissionwould need to be properly funded and that equal weight should be given to alldiscrimination issues covered by the commission. As previously mentioned wewould support a single Equality Bill within the same timescale.
Advice, guidance andsupport
4.11 The Government has already committed to commission writtenguidance on rights that will be available to individuals and employers. We would recommend that the Governmentshould consult the various Commissions, ACAS, the TUC, trade unions, CitizensAdvice Bureau and appropriate employers organisations regarding preparing thisguidance. However, we would also stressthe need for a Government campaign to publicise these rights which could becarried out with the help of the above organisations. It is important thatGovernment budgets for this campaign.
4.12 We would recommend that transitional support should be provided,either allocating the new jurisdictions between the three existing commissions,or alternatively considering agencies with the required expertise. In any event we would stress that there mustbe additional funding and resources provided by the Government and that equalweight should be given to all aspects of discrimination.
4.13 All aspects should be supported by a relevant Code of Practice andit is essential that these Codes have enforceable powers as statutoryinstruments if necessary.
Occupational requirements
4.14 The consultation suggests that thereshould be a provision of general application to recruit staff on the basis of agenuine occupational requirement. Wewould support this and also that any written guidance giving examples shouldnot be exhaustive, as this would prove inflexible. However, employers must be required to defend their definitionand there must be an essential nature of a job.
4.15 We would also support the deletion ofsection 4(3) and 5 of the RRA and replacement with the provision of a genuineoccupational requirement. The removalof section 4(3) would bring employment in a private household under theprovisions of the RRA and thus extend the protection of the Act.
Positiveaction
4.16 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 positive discrimination.
RACE: SOME SPECIFIC ISSUES
Training for those notordinarily resident in the UK
5.1 We support that the exemptionscontained in the RRA in respect of training relating to those who intend towork outside the Great Britain should be removed, as they are not compatiblewith the Directive.
Charities as employers
5.2 We welcome that charities, when actingas employers, will come under the provisions of the RRA. However, as previously mentioned we are infavour of positive discrimination and therefore, do not support that charitiesshould only have to rely on the provision of genuine occupational requirements.
Partnerships of fewer thansix people
5.3 We agree that the exemption ofpartnerships of fewer than six persons is no longer appropriate in light of theDirective.
SEXUAL ORIENTATION AND SOME SPECIFIC ISSUES
Definition
6.1 As stated in the Directive there is arequirement to combat discrimination on the grounds of sexual orientation asregards to employment and occupation.The definition could prove to be problematic. As stated in the consultation paper, UNIFI would not wish the Actto be used to protect those who have unlawful sex, in particularpaedophiles. However, restricting thedefinition to heterosexual, homosexual or bisexual orientation, could for instanceexclude transvestites. Therefore, wewould prefer option 1 which would allow for more flexibility for the EmploymentTribunals and Courts to clarify the scope of new protection. We are confident that neither wouldinterpret the Directive as a requirement to protect those that have carried outa criminal act.
Pay, Pensions and otherbenefits
6.2 Underthe Directive it is allowable for the rules of an occupational pension schemeto restrict benefits to surviving spouses as the Directive is expressed to bewithout prejudice to national laws on marital status and the benefitsdependent thereon (Employment Directive, recital 22). However, we feel that to exclude partners,whether the opposite or same sex, is open to interpretation. Therefore, we would advocate that it shouldbe unlawful to restrict occupational pension benefits to surviving spouses andexclude partners.
RELIGION SOME SPECIFICISSUES
Definition of religion orbelief
7.1 We are in agreement that there shouldbe no definition of religion or belief and that it would be better to leaveit to the Courts to resolve issues of definition. However, there will be questions raised over whether it providesprotection for cult religions and religious practices. We note that it issuggested that political beliefs should be specifically excluded, but wouldpoint out that there could be some overlap between profound philosophicalconviction and political belief.Additionally, there should to be some link with Article 9 of theEuropean Convention on Human Rights which provides for a right to a freedom ofreligion or belief.
7.2 Wewould recommend that the Code of Practice should include a non-exclusive listof religions and beliefs that would fall within these provisions.
Practical issues for all employers
7.3 Employers should be given clearwritten guidance on how to avoid direct and indirect discrimination in theworkplace. However, this also needs tobe supplemented by appropriate policies and training of all employees to raiseawareness of equality issues.
Provisions for organisationswith an ethos based on religion or belief
7.4 We agree that churches and otherreligious organisations should be allowed to recruit staff on the basis oftheir religion or belief where this is a genuine, legitimate and justifiedoccupational requirement having regard for the organisations ethos. However, we feel that in most cases thiswould be more appropriate for key positions, e.g. a Church of England vicar,than for all staff employed by the organisation.
Other considerations
7.5 Wewould like to draw the Governments attention to the fact that it could beargued that religious beliefs could lead to discriminatory actions. A good example, being the Church ofEnglands attitude to homosexuality. Therefore, Article 4 of the EqualTreatment Directive must be stressed making it clear that this exemption doesnot allow religious or belief organisations to discriminate on other grounds.
7.6 Currently the Race Relations Act doesprotect some ethnic minorities because of their religion or belief, therefore,this raises the anomaly of double protection for some, e.g. Jews and Sikhswhich the Government will need to address.
DISABILITY: SOME SPECIFICISSUES
Reasonable adjustments andindirect discrimination
8.1 Indirectdiscrimination legislation should be introduced to protect disabledpeople. We believe that indirectdiscrimination offers better opportunities to challenge discrimination. The reasonable adjustment provisions are notproactive and only relate to an individual in a particular case. Indirect discrimination provisions allow forproactive action against policies and practices which disadvantage groups ofpeople.
Performance pay schemes
8.2 Performance pay schemes are almostuniversal within the finance sector. Disabled staff can be put at a financialdisadvantage if they are unable to reach the companys deemed satisfactorylevel of performance for instance they may not reach all their targets due toill-health or sickness absence. Wewould recommend that is should be unlawful to discriminate against disabledstaff in the operation of performance pay schemes and that their disabilityshould be accounted for when awarding both salary rises and bonuses. We do not feel that an organisation shouldbe able to justify any discriminatory aspect of their performance pay scheme.
Occupational pension andgroup insurance schemes
8.4 We would stress that the Governmentneeds to take forward and action all the Disability Taskforcesrecommendations.
8.5 The DDAshould be extended to cover all employment and the current exemptions should berepealed.
8.6 It is notclear whether the DDA covers statutory and other office holders, suchappointments should be covered.
Direct and indirect age discrimination
9.1 Age discrimination does occur infinancial services. It is common practice for companies to early retire staffover 50 when restructuring and redundancies take place. There are also cases of older staff beingdenied training and promotion opportunities.Additionally, there is often a misconception that older workers are lessflexible than their younger counterparts and that they are less able to learnnew skills.
9.2 We believe that the majority of jobsdo not require a minimum or maximum age.Of course, there will be exceptions, e.g. professional sports andentertainment, but in the main employers should not be able to justify an agerequirement for the majority of jobs. As staff should be recruited on the basisof such criteria as experience, skill and relevant qualifications we do notperceive that there should be an issue of not recruiting someone on the basisof training costs. In the event ofstaff studying for professional qualifications it is already common practicefor staff to have to refund some, or all of the cost, if they leave theorganisation within a certain period of time.This ensures that both employee and employer are not disadvantaged.
9.3 Recruitmentschemes which focus wholly or mainly on one age should be viewed as directlydiscriminatory. Graduate recruitmentschemes are an example of age discrimination as most organisations recruityoung people onto these schemes, when there may be mature and existinggraduates who would wish to apply and are usually discouraged from doing so bytheir very nature.
9.4 We do not believe that employers should beable to justify refusing to promote someone solely because of their age. Again wewould view this as defeating the purpose of the Directive. Promotion should be based on such criteriaas experience, skill and relevant qualification and not on age.
9.5 Allowingorganisations to prevent someone from taking part in training by allowingexemptions could leave an opening for organisations to discriminate againstolder workers close to retirement. Itwould depend on the nature of the training.IT training could be a skill that would be useful to the employee afterretirement, but training on new products may not be appropriate if the employeewill have left the company before the new product is launched.
9.6 Financial service employees are oftenoffered redundancy based on their length of service. This more favourable treatment can be justified by the loyaltyshown to the company in their longer service.Additionally, older employees with long length of service may find itmore difficult to obtain new employment than their younger counterparts.
Retirement
9.7 There are arguments on both sides forkeeping and removing compulsory retirement ages. Mandatory retirement ages can provide job and promotionopportunities for younger workers.Additionally, mandatory retirement allows the employee to plan forretirement which equally applies to employers in their organisational requirements. However, there are also strong arguments forthe removal of compulsory retirement ages to allow workers to have more choiceabout when they retire. A setretirement age also encourages discrimination as employers may be unwilling torecruit someone who will have to retire in a few years. A compromise may be to consider flexibleretirement, with employees having a statutory option after age 50, to reducetheir hours over a certain period of time.They could receive pay for the time spent at work and pension for therest of the time. It would enable theindividual to adapt to retirement over a period of time and may help avoidsocial exclusion of older people. It would also be a way of keeping valuablecompetence and skills which could be transferred to younger employees. Itwould also reduce the burden on pension schemes as it would keep people workingfor longer (EIRO, 2001). However, thelegislation must ensure that there is a choice about when an individual mayretire. In addition, both occupationaland state pensions cannot be ignored when looking at retirement ages. We are concerned that employer pensionprovision is moving from final salary to money purchase schemes and that theState Pension should provide an income on which people can adequately live.
10 As indicated we are in support ofcoherent and comprehensive equality legislation, but in our view, this wouldonly be achieved by a single equality bill supported by one equalitycommission. We also feel that the legislationshould be enhanced by positive duties on employers to promote and monitorequality issues, otherwise it is going to be difficult to enforce much of thelegislative provisions.
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