It is one year since ROTA launched the campaign to save the Public Sector Equality Duty (PSED).  This is therefore a good point in time to look back and see where we stand in terms of equality in this country.

Last month ROTA held a conference on Shaping Mental Health Services for BMER People: Meeting the Public Sector Equality Duty.  It was an opportunity for voluntary and community sector organisations to learn about the Public Sector Equality Duty from prominent barristers at Doughty Street Chambers and to use the PSED to engage in constructive discussion with public authorities on the way mental health services are commissioned and delivered to BMER people.

At a time when much of the laws and institutions protecting equality have been repealed or weakened, it was inspiring to see voluntary and community sector organisations feel empowered and gain a sense of hope about the potential of the Public Sector Equality Duty to advance equality of opportunity.  This optimism is shared by Sir Bob Hepple in his article ‘Meeting the Challenges to Discrimination Law’ in the Equal Opportunities Review[1], where he sets out his views on the agenda for equality law in 2014.  What follows are the key points in his article, which is very useful for understanding the current landscape for equality law, the challenges and opportunities.

[1] Sir Bob Hepple, Meeting the Challenges to Discrimination Law, Equal Opportunities Review, 22/03/2014, Issue 247.

• Challenge – The repeal of the provisions on third-party harassment set out in the Equality Act 2010, which provided protection for employees against third-party harassment such as from customers, visitors and clients.
  Opportunity – If for example the harassment is against black women, it is still possible to argue indirect discrimination as a result of a practice by the employer which unjustifiably puts women who are black at a particular disadvantage.  It is also possible to argue a breach of the common law implied contractual term of mutual trust and confidence.
• Challenge – The repeal of the dual discrimination provisions, which is intersectional discrimination where two or more reasons operate inextricably.  This is for example where discrimination takes place against the older woman but not against the older man or the younger woman.
  Opportunity – The tribunals must be persuaded to focus on the reason why the discrimination occurred.  If a particular characteristic was a significant part of the reason for the discrimination occurred, that is sufficient.
• Challenge – The repeal of the formal questionnaire procedure, which enabled a person suspecting unlawful discrimination to obtain information.
  Opportunity – A claimant may still write a letter before action requesting information on relevant details.  Where this is refused or ignored, and the claimant wins a subsequent case, the tribunal could award costs against the respondent.
• Challenge – The government does not intend to bring into force the requirement to make public the information on the gender pay gap.
  Opportunity – The employment tribunals have the power to order a mandatory pay audit in any case where it finds that there has been a breach of a right to equal pay.  Furthermore, under s.77 of the Equality Act 2010 any contract clause that seeks to prevent discussion about pay between staff is unenforceable.  Although the government has decided not to require publications of audits in company reports or in its website, there must be disclosure to “relevant parties”, and this presumably includes all company employees and their representatives.
• Challenge – Although the PSED, which was threatened, has been temporarily reprieved until 2016, the threat of repeal or serious modification remains.
  Opportunity – The PSED still offers possibilities for transformative action.  Judicial reviews remain low but there have been some high profile cases such as Bracking v Secretary of State for Work and Pensions [2014] EqLR 60, where a Minister’s decision to close the Independent Living Fund was quashed by the Court of Appeal.  There is a need for public authorities to understand more widely what it means to have due regard to the PSED.
• Challenge – The Equality and Human Rights Commission is being disempowered by budget cuts from £70 million in 2010 to £17.1 million for “core” functions.  As a result its grants programme has been ended, its advisory and support services have been privatised, it has lost its conciliation function, and it needs to report only once every five years instead of three years.
  Opportunity – There are signs that the EHRC is adjusting to its more limited funding, and there have been successful interventions in a significant number of high-profile cases with nearly 80% success rate.
• Challenge – Legal aid cuts and the introduction of tribunal fees have severely impeded access to justice.  The proposed new rules to judicial review will make it worse.
  Opportunity – Unions and NGO should publicise and boycott companies with discriminatory practices.
• Challenge – Discrimination against EU migrants in respect of welfare benefits; increasing bureaucratic restrictions on non-EU workers and students; the Immigration Bill 2013 – 14 that is likely to lead to ethnic profiling and unjustified discrimination.  This includes requiring landlords to carry out checks on persons who want accommodation to ensure they are entitled to be in the country; and requiring banks to check whether people wanting to open a bank account have leave to stay.  This is likely to have an adverse impact on those who look or sound “foreign” but are born in the UK or are in the UK perfectly legally.
  Opportunity – The Scottish Government’s proposals include a constitution for Scotland that entrenches equality as a fundamental human right.  Those who oppose independence should spell out how they will entrench this right for the whole of the UK.  It is time for a guaranteed constitutional right to equality which cannot be violated simply by a parliamentary majority.

For full article by Professor Sir Bob Hepple:  Sir Bob Hepple, Meeting the Challenges to Discrimination Law, Equal Opportunities Review, 22/03/2014, Issue 247.