A single Equality Act is obviously long overdue. Speaking about the Sex Discrimination Act 1975 and the Equal Pay Act 1970 (Shields v Coomes (Holdings) [1979]), Lord Denning said: “The pieces are all jumbled up together, in two boxes. One is labelled the Sex Discrimination Act 1975; the other, the Equal Pay Act 1970. You pick up a piece from one box and try to fit it in. It does not. So you try a piece from the other box. That does not fit either. In despair you take a look at the picture by the makers. It is a guide issued by the Home Office. Counsel on behalf of the Equal Opportunities Commission recommended paragraph 3.18 which he says will show the distinction between the two acts. Even that will not make you jump with joy. You will not find the missing pieces unless you are very discriminating.”
The Sex Discrimination Act 1975 and the Equal Pay Act 1970 are still with us in much the same form and the law has continued to build up in piecemeal fashion in the 30 years since 1978. In the words of Trevor Phillips, the chair of the Equality & Human Rights Commission, it “is now frankly unworkable”. Most human resources managers would agree.
Take, for example, a woman who suspects that she has been disadvantaged because she is on maternity leave. She wants to know whether what her employer has done is unlawful. The relevant statutory provisions are scattered through the Sex Discrimination Act 1975, the Employment Rights Act 1996 and the Maternity & Parental Leave Regulations 1999. They are not cross-referenced, so if she does manage to find the relevant sections and regulations she has no guarantee that there are not other statutory provisions which needs to be found. Nor is there any guarantee that the versions of the provisions she is looking at are up to date. Section 3c of the Sex Discrimination Act was significantly amended as recently as April this year.
It will be still more difficult for her to find the case law in which the current statutory provisions are interpreted and applied. Even if she did manage all this, applying the law to the facts and deciding whether discrimination has occurred is frequently a challenge for the most experienced employment lawyers and judges. As matters stand at present, it is not possible for the average person to get properly to grips with the legislation, let alone assess whether discrimination has occurred.
At this point you may well say that nobody relies on the words of a statute to work out whether they are the victims of discrimination. Indeed, you may say that very few lawyers try to understand discrimination law by collecting and reading the authorities — at least not initially. Instead they rely on a textbook or database on the web to explain the law in general terms.
However, if you look at the textbooks or the summaries of the law that appear on the web and compare them to the judgments of the courts it soon becomes clear that even the best summaries of the law can only give a very high-level, simplified view. The complexity and subtlety of the law prevents anything more detailed. In the end it becomes simpler to consult the statutes themselves. For that reason it is important that the statutory provisions are clear.
The simple act of bringing all the legislation together in one place and removing the overlaps between different statutes will be a great improvement. It would make it easy to check whether you have consulted all of the relevant provisions. Harmonising the wording used in relation to employment discrimination and discrimination in other areas would help greatly too. It would mean that the mother on maternity leave who suspects discrimination would no longer have to puzzle over whether there are implications for her in the differences between current parallel provisions such as: “… a person discriminates against a woman if… on the ground that the woman is exercising… a statutory right to maternity leave, the person treats her less favourably…” - in section 3a of the Sex Discrimination Act and: “An employee has the right not to be subjected to any detriment by any act by (her) employer done for a … reason… which relates to… maternity…” - in section 47c of the Employment Rights Act.
Most people would agree that it also makes sense to unify the common conceptual framework which underpins the different types of discrimination — for instance, what constitutes direct discrimination, indirect discrimination, justification and harassment — so far as this is possible within the framework of European Commission.
One should not underestimate the size of the task involved in unscrambling all of the patches which have been applied to the original legislative jigsaw over 30 years and fitting in all of the new elements. If the Government succeeds in doing this it will be a major achievement. It would be a shame if this was driven off course by becoming embroiled in an attempt to develop a new concept — fairness — to deal with discrimination. This may just be rhetoric, but it appears to be what Trevor Phillips and others are now calling for.
Discrimination law has a wide ambit — it now covers areas as diverse as discrimination on grounds of sex, marital or civil partnership status, race, disability, gender reassignment, religion or belief, sexual orientation, pregnancy, maternity leave and age. It is by no means clear that what is ‘fair’ in any one of these contexts will be fair in all the others.
Indeed, it is clear that some areas of discrimination need particular rules or procedures if the law is to be effective. Separate procedures are necessary to make equal pay law fair reasonable adjustments are needed to make disability discrimination law fair, and it is seen as necessary to be able to justify direct age discrimination. In other words, it is by no means clear that there is a single concept of fairness that underpins all the different types of discrimination.
Fairness is notoriously difficult to define. Given the amount of time that lawyers have charged to clients and tribunals and courts have spent comparing the different legislative provisions since 1979, it would be a pity if the sensible legislative housekeeping the Government now proposes were not carried through. Those calling for a new concept of fairness risk damaging the very people they seek to protect.
Tim Johnson is a partner at Kilpatrick Stockton in
EmploymentJune2008
