The New Equality Act and Its Effects on Current Law - Literature review Example

Running head: NEW EQUALITY ACT The New Equality Act and Its Effects on Current Law Introduction Discussion of equality in the UK has been ongoing, covering numerous areas of concern as they arise. In 2006 The Equality Act was passed as a first step toward further legislation designed to combine all equality legislation of Great Britain in a concerted effort to protect the employment rights of people across the racial, ethnic, gender and class spectrum. Those explicitly mentioned by the Equality Act incorporated age, disability, gender, commenced or completed gender reassignment, race, religion or belief and sexual orientation. But passing law and applying its tenets can be two completely different things when it comes to practicality. Complex issues arising from existing laws affect both employees or those providing goods and services, and employers and business owners attempting to meet ever-changing requirements can present issues in and of themselves. How well or not so well current changes to laws governing equality will fair remains to be seen. The fact that any change, especially those in the legal realm, can be disruptive must be an accepted point of fact. Often criticized as a fragmented set of rules, changes proposed to the Equality Act currently before Parliament are conversely touted as an effort to codify, clarify, regularize and combine all of the precepts proposed in the 2006 bill into one coherent piece of legislation that will benefit those whom the bill is meant to protect, as well as those responsible for ensuring they are protected. In researching the changes it is apparent that much legal “hair splitting” defines the changes and places employers and anyone having to abide by the new rules in a position of guilty until proven innocent based on some fairly complex legal assertions. As with most new legislation, and as always, passage of the new law with changes will undoubtedly provide both benefits and detriments in the quest for true equality. Proposed Changes: Who Is Protected The new Equality Bill as published in 2009 expands coverage and adds another layer of who may be discriminated against and what constitutes discrimination, in this case those with disabilities. According to Stammeringlaw (2009), the bill places under its widening umbrella groups and individuals who heretofore would have had difficulty making a case for discrimination. It also makes it more difficult for employers to “talk their way out of” charges of discrimination, leaving employers or government agencies with few options in making decisions heretofore deemed appropriate. Some main changes regard disability, including the institution of a single justification defense test that requires employers or service providers to “show that its conduct is a proportionate means of achieving a legitimate aim in employment” (Stammeringlaw 2009)—a higher threshold than currently used under the old ‘reasonable opinion’ standard. New ways to claim disability discrimination are also part of the bill, making it easier to claim reasonable adjustments from providers. For instance, “It would no longer be necessary to show that the providers practice etc. makes it impossible or unreasonably difficult to access the service” (Stammeringlaw 2009). The new test focuses on the degree of disadvantage suffered by the disabled person. New justification defense rules also extend to services and will no longer be allowed as a defense for failure to make reasonable adjustments. Countering previous policy, the disabled person will no longer be subject to paying for such adjustments under the new law. An interesting but perhaps less comprehensible change refers to what Stammeringlaw.co.uk (2009) calls discrimination on the basis of “perceived disability” or discrimination and harassment “by association”, a practice that is the focus of Coleman v Attridge heard by the EU Court of Justice (2008). In Coleman “a mother alleged that she was discriminated against and harassed at work because of the disability of her child...that she was refused the same flexibility of working hours as colleagues [to take care of the child]...and that abusive... comments were made about both her and her child...” (Stammeringlaw 2009, Summary: Coleman v Attridge 2008). Her employer disputed the allegations and rather shockingly responded that even if this were true, the law only applied to the disabled person themselves. Discrimination by perception is likely to cover situations where the discriminator thinks a person lacks the ability [has then a disability] to perform a job or service. Examples of perception and association respectively are: a driving school withholds a job from an older woman, believing she is not strong or agile enough but appoints an older man or younger woman; a bus driver does not allow a Muslim man onto a bus because he is stereotyped as a potential terrorist. (Stammeringlaw.co.uk 2009) The later practice and new codes of behaviour in the new law is undoubtedly prompted by EU positions on subjects pertaining to religious discrimination.. “There have been several developments in the move to address the current regime of equality legislation, some of which have been inspired by obligations arising from the UK’s membership in the European Union...”(Hellyer 2007 p.1). Ideological Opposition: The Gender Issue Although the new bill is touted as a panacea to ensure equality in all areas, and claims to clarify requirements and thus make it easier for employers and government agents to comply, the bill is not without its detractors. Some Labour and Conservative party members go so far as calling the bill “a direct threat to Britains ancient heritage of civil liberties and freedoms” (White, 2009) and “ideological coercion” (White 2009, qtg. Moore). Addressing ideology as the basis for the bill, Tory MP Philip Davies describes the “forced perception” intrinsic in the law. “The way the bill is structured...requires adherence to an entire unified ideology...Each equality relates to every other...If you are in favour of...maternity leave, you must also support the legal recognition of trans-sexuals” (White 2009, qtg. Davies), point being that to disagree morally on certain issues under the bill stifles the right to take a moral stand against certain lifestyles. The stance, supported by some members of the Anglican Church, puts forth that in this Christians are being discriminated against for their views [reverse discrimination], a complex matter to say the least. "We are seeing case after case of Christians being discriminated against because of their biblical views on sexual conduct. It is time to take action before our laws silence any objection to homosexual practice" (White 2009, qtg. Andrea Williams, Christian Concern for Our Nation). Gender Reassignment and Discrimination White (2009) writes, “It [Equality Bill} also contains a provision relating to the creation of a public duty to promote equality on the ground of "gender". While the effects of such legislation are obvious in terms of male/female discrimination, a more complex result of the provisions may be found in the area of gender reassignment. At the time the original 2006 law was passed further legislation was proposed that would protect citizens undergoing or having completed gender reassignment from discrimination when providing goods and services. The latter was designed to coincide with an EU Directive (2006/54/EC) requiring member states to work toward the goal of eliminating discrimination against individuals of gender reassignment to ensure their fair and equal treatment under the law, a law that affected not only employers but challenged government policies under the law. Case in point is a 2006 judgment by the EU Court of Justice that found “The refusal to grant a pension to a male-to-female transsexual at the same age as a woman is contrary to Community law” (Press Release 2006, Case C-423/04). In the UK men are entitled to a retirement pension at age 65 and women 60. Sarah Margaret Richards, born a male in 1942 changed genders in 2001 and in 2002 applied for retirement pension. Her application was refused because she was not yet 65, a requirement for males. The EU court found the refusal against its Community Directive 79/7 “... on [the grounds of] the progressive implementation of the principle of equal treatment for men and women in matters of social security” (Case C 423/04, full text 2006: 45/1). The Directive specifically prohibits any discrimination based on gender reassignment. The court was not only adamant in its recommendations, but in ruling against the UK in yet another area potentially costly in future. “Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable [by the UK]” (Case C 423/04, full text 2006: 45). The Cost of Eliminating Discrimination The Bill increases sick pay from 95 pounds to 97, and, extremely significant to business owners in terms of budget versus worked produced, extends maternity leave from three months to up to a year. The consequences for cost are obvious, and many believe a mistake in light of the global recession. Patel (2010) is highly and specifically critical of the new maternity leave policy. ...the key question here is who should pick up the tab?...The cost for business owners is much greater than the basic salary cost. It is the cost of recruitment, training, management time and the cost of not being able to plan or grow a position for nearly year that needs to be included here...It is not logical for the government to burden businesses – and especially small businesses – with such costs during a recession. If the government wants to offer more paid maternity leave, it should pay for it – and pay for it over the basic costs. If its not prepared to pay these actual costs, the alternative is to exempt small business from any such increase. From a social and equality point of view, extending paid maternity leave from 39 weeks to 59 weeks might be a good idea. For businesses struggling with the recession, especially for small businesses, it is a potentially disastrous move to woo the electorate in 2010.” (Patel 2010) No less controversial are impending gender pay gap audits that will require businesses of 250 employees or more and public organization of 150 to post gender pay gaps between male and female employees. "The major impact is likely to be for businesses in which pay gaps exists, as a requirement to publish details of these may open the company up to claims in Employment Tribunals from disgruntled employees... Employers will also face the cost of bringing pay back into line for other employees to prevent future claims” (Sullivan 2009, qtg.Washington). Estimated figures say women are currently paid 60 percent less than men and 79 percent less in bonuses. The obvious cost of correcting this disparity is obvious. As critiqued by the Royal College of Nursing (RCN), the relevance of the bill in terms of correcting past pay gaps could be negligible for many and somewhat damaging under the new law. While welcoming efforts to correct pay gaps, Payne (2009) found, “approximately 50 percent of private healthcare employers have less than 250 staff and so the gender pay gap will remain unregulated in these areas…” Resolution of the problem would come “at a substantial cost” that may inevitably effect “patient care and staffing levels”. How this will likely affect National Health Service (NHS) budgets seems ominous, and RCN suggests any cost increases must be appropriately reflected in NHS budgets in future to ensure current service levels. Conclusion While it appears obvious that most of what is being proposed is already politically written in stone, the smooth transition to the application and adherence to anti-discrimination policies proposed by the new law will be daunting and undoubtedly ongoing. Its 205 clauses, 28 schedules and volume of extraneous notes while published on a new interactive Government Equalities Office site will help somewhat in clarifying policy; the details involved in putting all of the new requirements into practice will take time, and, apparently, money. For those diametrically opposed to many of its precepts, availability of information is the least of its problems. Charles Moore of the Daily Telegraph writes of the bill as “a gigantic, bureaucratic organisation of ideological coercion, promoting grievance, imposing cost and attacking businesses, charities, schools" (White 2009, qtg. Moore). Similar opinions are unlikely to change in future. Charges that the new policies will pit the middle class against the bill do not bode well for many of its requirements, particularly concerning policy for school entry which Drury (2009) and Clark (2009) suggest the new law may be placing too much emphasis on traditional Labour concerns for the poor at the expense of local middle-classes people getting their children into good state schools. Drury also believes current anti-discrimination policies under the bill “risk alienating middle-class voters and [may]condemn Labour to defeat in the General Election...” due to middle-class perception that “someone else is getting a better deal than you and your family” (Drury p. 2). Charged with everything from religious anti-discrimination policies that effectively do away with Christmas, to doing the same for handicaps for women golfers, the new bill will have a long way to go in satisfying most members of British society, many of whom believe Britain’s association with the European Union and its courts are forcing policies unpopular with the general population and that the policies are impractical and go too far. The bill may be, as touted, a valiant effort to gather all the rules into one bill, but the devil may still be in the details—details which may or may not in the future support Moore’s claims. Bibliography Burri, S. and Prechal, S. (2006). The Transposition of Recast Directive 2006/54/EC. European Network of Legal Experts in the Field of Gender Equality. European Commission: Directorate-General for Employment, Social Affairs and Equal Opportunities, Unit EMPL/G/2; Theme: Equality, Action against Discrimination: Legal Questions. Retrieved (23 January, 2010) from: ec.europa.eu/social/BlobServlet?docId=1843&langId=en Clark. L. (7 February, 2009). “State School War on Middle Classes; Harriet Harman: Equality Drive”. The Daily Mail, p.16. Retrieved (23 January, 2010) from: www.questia.com. Drury, I. (2 July, 2009). “Labour Alienating the Middle Classes; Minister Attacks Harmans Equality Laws”. The Daily Mail. Retrieved (23 January, 2010) from www.questia.com. Hellyer, H.A. (2007). “British Muslims: Past, Present and Future”. The Muslim World, 92:2. p. 225+. Blackwell Publishing. Retrieved (24 January, 2010) from www.questia.com. Patel, J. (Friday, 8 January 2010) “Equality Bill: Is Harman Mad”? Retrieved (24 January, 2010) from: http://www.realbusiness.co.uk/news/employment/5744218/equality-bill-is-harman-mad.thtml Payne, N. (2 June, 2009) “RCN Issues Cost Warning on Equality Bill”. Nursing Times.net. Retrieved (24 January, 2010) from: http://www.nursingtimes.net/whats-new-in-nursing/acute-care/rcn-issues-cost-warning-on-equality-bill/5002256.article Sarah Margaret Richards v. Secretary of State for Work and Pensions (27 April, 2006). Judgment of the Court of Justice in Case C-423/04. Press Release No. 35/06. Retrieved (22 January 22, 2010) from: http://europa.eu/rapid/pressReleasesAction.do?reference=CJE/06/35&format=HTML&aged=0&language=EN&guiLanguage=en. (full text at: http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=rechercher&numaff=C-423/04). Stammeringlaw.org.uk. (2010) Proposed Changes on Who is Protected. Retrieved (23 January, 2010) from: http://www.stammeringlaw.org.uk/changes/disability.htm#assc White. H. (Monday, 25 May 2009).”Critics Charge U.K. Equality Bill is About ‘Ideological Coercion’ and Will ‘Reintroduce Discrimination into the Workplace’”. LifeSiteNews.com. Retrieved (24 January, 2009) from: http://www.lifesitenews.com/ldn/2009/may/09052504.html     Read More