The “rust plating” of UK equality law continues
The government announced in the Queen’s speech last week that it wants to scrap yet more of the Equality Act. This time it’s the power of Employment Tribunals to make wider recommendations to employers found to have unlawfully discriminated.
These are powers are vitally important. Previously, a tribunal could only address the symptoms and not the causes of workplace discrimination: it could award employees compensation, but not get an employer to change their ways, especially where the victim had left the workplace, as they do in most cases.
So since 2010 tribunals can also recommend that employers take steps such as training managers or rewriting policies of equal opportunities to weed out discrimination, which is often rooted in workplace culture or practices.
The government has advanced two contradictory arguments to scrap this power: that it is onerous and irrelevant. Neither of them has any merit.
It’s too onerous
Firstly, the government has uncritically cited “employer fears of excessive or inappropriate recommendations” as a reason to scrap the provision. This is based on an old 2007 survey – three years before the power was enacted. Outdated impressions are hardly the basis for sound policy making.
Under the government’s own worst case scenario, 0.00078 percent of employers subject to a discrimination claim would be asked by a tribunal to conduct a training session or rewrite a policy (and yes, that’s “asked” and not “required”). Across the entire British economy this is expected to cost up to £67,000, “with the best estimate being £16,000”. Is this really spreading waves of panic across the boardrooms of Britain?
Secondly, the government then says that there is “very little empirical evidence of the power’s usage”. So not only is it driving fear, but it is irrelevant, according to a government unfazed by its own cognitive dissonance.
To underline that case, the government says that employers already make positive changes after a discrimination claim regardless of tribunal recommendations. Apparently 56% of them do according to one government survey. But that just leaves me worried about the 46% that do nothing.
Let me show you what victims of discrimination and employment tribunals are dealing with:
- In Stone v Ramsay Health Care, the tribunal said that there was a “thorough and abject failure by the [employer] to have protected the claimant from pregnancy and maternity discrimination” (at para 126). And the employer, “tolerates and even seems to encourage a culture in which there is a worrying lack of understanding” of maternity and pregnancy rights (at para 126).
- In Crisp v Iceland Foods, a HR manager’s awareness of mental disability was “no less than woeful”.
- In Austin v Samuel Grant (North East) Ltd it was the managing director that had a long track record of sending racist and sexist emails, and the HR manager had failed to properly deal with the issue.
These are cases of serious ignorance and prejudice running through the senior levels of business. Asking them to sort this out is the very least the justice system should be able to do.
While recommendations are rarely issued by tribunals – there are only four cases that I am aware of – they send a powerful signal across the workplace, and the wider legal and HR community advising business that discrimination is unacceptable.
We need many more powerful signals, because tribunal cases alone will never be enough. To say that they only touch the tip of the iceberg of workplace discrimination would be to grossly exaggerate their effect. According to a landmark study by the then Equal Opportunities Commission in 2005, less than 1 in 30 women discriminated against because of pregnancy or maternity leave took their case to an employment tribunal because of a range of fears (see page 25). Even then, those with the resources and courage to take a matter to tribunal are less successful than not.
But it’s a shamefully large problem. Nearly half of the women surveyed said they experienced dismissal or disadvantageous treatment at work because of their pregnancy. That translated to an estimated 190,000 women back in 2005 – a staggering number that has surely increased.
So the tribunal power to make recommendations is a small but critical tool in tackling this problem. (Of course the best tool is unions and employers working together to rooting out prejudice and discrimination before it ruins people’s lives in the first place).
So why does the government really want to get rid of it? The front page of the impact assessment says, “This provision goes beyond EU law.” And that is probably the heart of the matter. The repeal of tribunal powers to make wider recommendations is part of a process of stripping away protections at work back to the lower set of minimum rights that 27 EU member states could agree on. This is the opposite of so-called “gold plating” of EU law. It’s the “rust plating” of UK equality law.