EQUALITY LAW UNDER THE CONSERVATIVE

GOVERNMENT

Bob Hepple

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EQUALITY ACTS 2006 AND 2010

• Comprehensive – unitary or integrated approach enforced by single Commission- from politics and law of single identities to equality as fundamental human right.• Harmonises, clarifies and extends concepts of discrimination,

harassment and victimisation• Some measures of transformative equality- from negative to positive

duties: eg PSED, more flexible possibilities for positive action

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EQUALITY UNDER COALITION GOVERNMENT

• Most provisions brought into force, except s 1 (duty to reduce socio-economic inequality) and s.78 (gender pay gap information); ‘caste’ must be added as prohibited characteristic.• Rights to request flexible working; shared parental leave; mandatory

pay audits after finding of breach of equal pay provision.• BUT ‘red tape’ deregulation- raising qualifying period for unfair

dismissal (2 yrs), cap on UD awards (12 mths), limit on annual uprating.• Repeal of provisions on harassment by 3rd parties, intersectional

discrimination, questionnaire procedure, power to make wider recommendations etc.

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DISEMPOWERMENT OF EHRC

• Reduced to ‘core’ functions• Two-thirds budgetary cuts• Severe staff losses• BUT general duty (EA 2006, s 3)to promote broad aims of equal

opportunity, equal dignity and worth, and human rights NOT repealed

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ACCESS TO JUSTICE

• Imposition of tribunal fees since 29 July 2013 – fall of all discrimination claims 77% between Q4 2012 and Q4 2014- applications in UNISON cases for JR refused (appeal pending).• Disappearance of legal advice and assistance• Fees policy ‘under review’• Tribunal reform?

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GENERAL ELECTION 2015

• Improved diversity in Parliament ( women 29% compared to 22% in 2010; 43% Labour MPs, 36% SNP; 42 BME MPs (6.4%) compared to 27 in 2010; 32 openly LGBT).• Conservative manifesto: Govt ‘will fight for equal opportunity’• Mandatory gender pay reporting –Small Businesses,Enterprise and

Employment Act 2015 , s 147,requires Sof S to make regulations under EA s.78 within 12 mths after consultations.• Minimum wage to be raised towards living wage and abuses such as

non-payment, zero hours and migrant workers to be tackled.

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CONSTITUTIONAL ISSUES

• Repeal of Human Rights Act and introduction of British Bill of Rights –limits to ‘most serious matters’-effect on LGBT rights, right to manifest religion/belief/political opinion?- can UK remain member of EU if withdraws from ECHR?• Referendum on EU membership. If YES, loss of major pillar of domestic

equality law (eg equal pay for work of equal value, discrimination on grounds of age,s.o, religion/belief, equal treatment for part-time, fixed-term and agency workers.• Scottish devolution – Smith Commission – EA ‘reserved’ for UK

parliament, but power over tribunal rules, PSED etc, ,gender quotas,?

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ADVANCING EQUALITY

• Effective strategic enforcement by EHRC (eg Metropolitan police)?• Equality representatives• Strengthen PSED – but note changes in JR rules by Criminal Justice

and Courts Act 2015, s 84 (leave to apply),s.85 (interveners and costs), s.88 (capping of costs). Review of PSED in 2016 –need to change ‘due regard’ test, and rules on engagement of stakeholders . O achieve ‘reflexive’ regulation

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CONCLUSION

• Absence of duty on large and medium private and voluntary sector employers to conduct equity and equal pay audits – a ‘burden on business ?.• Make better use of existing powers (eg EHRC can use investigatory

powers and negotiate legally-binding positive action agreements in lieu of enforcement.