Recent and Forthcoming Developments in Discrimination Law
Now that the initial brouhaha prompted by the introduction of age discrimination is starting to wane somewhat, we thought it would be an opportune time to cast an eye over a few developments in other areas of discrimination law. Most of which are not directly related to employment law as such, but which may be of more general relevance or interest to some of our clients.
Commission for Equality and Human Rights
In Great Britain there are currently three separate Commissions dealing with discrimination matters:
| • | the Equal Opportunities Commission (EOC) which deals with sex discrimination and equal pay arising out of the Sex Discrimination Act 1975; |
| • | the Commission for Racial Equality (CRE) which deals with the provisions of the Race Relations Act 1976; and |
| the Disability Rights Commission (DRC) which oversees the implementation of the Disability Discrimination Act 1995. |
The Equality Act 2006 established the statutory basis for a single “Commission for Equality and Human Rights” (CEHR). As well as consolidating the work of the three current Commissions, the CEHR will also deal with the more recent aspects of discrimination legislation in terms of sexual orientation, religion or belief, and age as well as promoting human rights. The Government now intends the CEHR to be up and running in October 2007 for all aspects (originally it was envisaged that the work of the CRE would not transfer until April 2009).
The scope of the CEHR will not extend to Northern Ireland, where a single Equality Commission has already been in place for a number of years.
New statutory duties on public authorities
Public authorities have been under a duty to promote racial equality in the exercise of their public functions for a number of years. The requirements on public authorities were recently extended to include promoting disability equality and will shortly be extended to cover gender equality.
Disability
The Disability Discrimination Act 2005 (DDA 2005) introduced a positive statutory duty on public authorities to promote equality of opportunity for disabled people in the exercise of public functions. This duty came into force on 4th December 2006. The legislation requires all public authorities to prepare and publish ‘Disability Equality Schemes’ containing specified information on or before the relevant publication date. For most public authorities, maintained secondary schools (including Academies and City Technology Colleges), FE and HE institutions the relevant publication date was 4th December 2006. For an educational establishment maintained by an LEA in Wales it is 1st April 2007 and for maintained primary schools and special schools it is 3rd December 2007.
The DDA 2005 only applies to Great Britain; separate legislation mirroring the above changes was introduced for Northern Ireland and came into effect on 1st January 2007. Public authorities in Northern Ireland are required to submit a disability action plan to the Equality Commission by 30th June 2007.
Gender
As well as establishing the CEHR, the Equality Act 2006 will also create a positive duty on public authorities to promote equality of opportunity between men and women and to prohibit sex discrimination and harassment in the exercise of public functions. This new duty will come into effect on 6th April 2007 in Great Britain (although there will be slightly different provisions applicable between England, Wales and Scotland). Public authorities will be required to have “Gender Equality Schemes” in place by 30th April 2007.
How might these duties affect the voluntary sector and private companies?
There are two main ways in which these new duties may affect the private and voluntary sectors:
Firstly, these duties will also apply to private and voluntary sector bodies that are providing public functions on behalf of a public authority, such as contracted-out services.
Secondly, the duties require public authorities to ensure public money is not spent on discriminatory practices and to make sure that resources are used to promote equality of opportunity. When approving suppliers, public authorities can ask private companies to demonstrate how they meet the requirements of equality legislation; how they ensure equality issues are built into service design; and they may even require companies to provide evidence of progress if they have recently lost a discrimination case at Employment Tribunal. Companies may be removed from contract short-lists if they do not satisfy the equality criteria set by the public authority.
N.B.
Public authorities in Great Britain are not yet required to promote equality in respect of age, sexual orientation or religion or belief. However, it is likely that these outstanding aspects will be included at some point in the future as part of the Government’s Equalities Review which is intended to lead to a Single Equality Act. The Government plans to develop a simpler, fairer legal framework which it hopes will be more effective in eradicating discrimination without imposing unnecessary bureaucratic burdens on business. Well, “better late than never”, we suppose.
Extension of discrimination legislation on sexual orientation and religion or belief to cover the supply of goods, facilities, services and premises
The Equality Act 2006 also included powers to extend the legislation on sexual orientation and religion or belief to cover the supply of goods, facilities, services and premises. Implementation in Great Britain is now expected on 6th April 2007. Separate legislation was required for Northern Ireland, where provisions in this regard in respect of religious belief or political opinion already exist.
At the time of writing, the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 were due to come into force on 1st January 2007. These Regulations make it unlawful to discriminate on the grounds of sexual orientation in the provision of goods, facilities and services, education and public functions. Employers will be liable for unlawful acts of discrimination committed by their employees in the course of employment unless it can be shown that reasonably practicable steps were taken to prevent employees from doing such acts.
The Regulations define examples (although not exclusively) of the sorts of facilities and services that might be covered, including: access to and use of any place which members of the public are permitted to enter; accommodation in a hotel, boarding house or similar establishment; and the services of any profession or trader. The Regulations deal also with the disposal and management of premises and the various exceptions that apply to that area. Protection is also afforded to those accessing educational facilities and public authorities, subject to certain exceptions. Associations and private members clubs are included within the scope of the Regulations.
The Regulations provide limited exceptions to organisations relating to religion and belief, where the sole purpose of the organisation is: to practice a religion or belief; to advance a religion or belief; to teach the principles of a religion or belief; or to enable persons of a religion or belief to engage in any activity or receive a benefit within the framework of that religion or belief. The exception does not however extend to organisations whose sole or main purpose is commercial.
Charities are also provided with an exception, in so far as the charity was established to confer a benefit on a particular group by virtue of sexual orientation.
As these Regulations deal with matters that fall only to goods, facilities and services, any legal recourse will be for a claim in tort for breach of a statutory duty, except where specific criminal offences are created. In both cases recourse will be through the County Court.
At the time of writing, the version of these Regulations that will apply in Great Britain had not yet been published. However, major differences would be unlikely. The provisions relating to the extension of legislation on religion or belief to cover the supply of goods, facilities, services and premises are contained within the Equality Act 2006 itself and will be covered in the next issue of the Bottom Line.