Green about the edges

A government green paper on rationalising the various tests for discrimination only goes part of the way to achieving that aim

The Journal, August 2007, page 40

Reading recent press coverage of the government’s proposals for a Single Equality Bill, you would be forgiven for thinking that the only issue discussed was the rights of women at the golf club. In fact, there is a great deal more to debate in the green paper.

One of the government’s goals is the simplification and standardisation of legal definitions across the six strands of discrimination law: sex, race, disability, religion or belief, sexual orientation, and age. At present, a comparator is required for a direct discrimination claim, and the success or failure of the claim hinges on the choice. The green paper floats the idea of removing this requirement. However, the government believes this aspect should be retained given that discrimination law is about equal rather than fair treatment.

A perception of confusion

Confusion currently surrounds discrimination claims based on perception and association. Direct discrimination based on a mistaken perception of someone’s race, sexual orientation, religion or belief, or age, is outlawed, but not where there is mistaken perception of sex, disability, or gender reassignment. It is also unlawful to discriminate directly on the basis that a person associates with another of a particular race, sexual orientation, or religion or belief; this is not true of the other grounds. Despite this muddle of provisions, the only change proposed here is to add protection for those who associate with a transgender person.

The government’s hand may yet be forced on this issue as the ECJ will, in due course, consider the first UK reference on disability discrimination, Coleman v Attridge Law. A legal secretary has brought a variety of claims on the grounds of being a carer of a disabled person, her son. Ms Coleman is not herself disabled. The case has been referred because, while the Equal Treatment Directive states that discrimination “on the grounds of disability” will be unlawful, under the implementing provisions of the Disability Discrimination Act 1995 discrimination will be unlawful if “on the ground of the disabled person’s disability”. The outcome is one to watch for.

Inconsistent tests

At the moment, the indirect discrimination provisions also throw up variations in definition and the tests to be applied. This is true between the different strands, within strands (i.e. race) and between fields (i.e. employment versus goods and services). No prohibition on indirect discrimination exists in relation to gender reassignment or disability, and the government is only proposing to introduce protection for the former, believing that the current provisions outlawing disability-related discrimination and imposing a duty to make reasonable adjustments provide protection enough for disabled people.

Distinct tests also exist for the objective justification of certain types of discrimination. In relation to disability discrimination, employers have to satisfy a “material and substantial” test rather than the stricter “proportionate means of achieving a legitimate aim” test which applies to other strands. The government proposes to adopt the latter in all cases of indirect discrimination, direct age discrimination, and disability-related discrimination.

Mixed reviews

Further harmonisation is suggested in a number of other areas, including: the victimisation provisions; those relating to genuine occupational requirements or qualifications; and the exceptions set out in the legislation. There could also be changes to the positive action provisions, and amendments to the definition of disability to remove the list of “capacities” which must be adversely affected if disability is to be proven. The government is also considering whether there is still a need for the provisions prohibiting discrimination against married persons and civil partners on grounds of their marital or civil partnership status, a move likely to prove contentious.

Also causing angst are the proposals around equal pay. These suggest retaining the requirement for an actual – as opposed to hypothetical – comparator. The government also states an intention to codify settled principles (while not making clear what this will entail), but there are no proposals for mandatory equal pay audits.

Finally, the existing public sector race, disability and gender equality duties will be replaced with a single duty which is likely to be extended to cover age, sexual orientation and religion or belief. While this will remain a public sector duty, the government is seeking views on whether the introduction of a voluntary equality standard for private sector organisations would be beneficial.

The proposals have received mixed reviews from the present Equalities Commissions, business and employee representatives. While a CBI spokesperson described the proposals as “striking a sensible balance”, the Fawcett Society has accused the government of “tinkering at the edges”.

Continued discussion around these proposals, and the fact that the Commission for Equality and Human Rights opens its doors on 1 October, means that interesting times are in store in the field of equalities, and ensures there will be plenty to mull over at the 19th hole in the months ahead!

Jane Fraser, Head of Employment, Pensions and Benefits, Maclay Murray & Spens

GREEN FOCUS:EMPLOYMENT DISCRIMINATION

The green paper is snappily titled “Discrimination Law Review – a Framework for a Fairer Future: Proposal for a Single Equality Bill for Great Britain”.

The proposals are born out of work done during the Discrimination Law Review and Equality Review, which both reported earlier this year. Changes are suggested in respect of goods, facilities, services, premises, insurance, and private members’ clubs; but the main focus is discrimination in employment