UK: Fair Game – The EHRC Set The Rules

Last Updated: 20 March 2008
Article by Paul Brown

From 1 October 2007, a new body was created to deal with all aspects of discrimination law in the UK.  The Equality and Human Rights Comission ("EHRC") is effectively an amalgamation of the Commission for Racial Equality ("CRE"), Equal Opportunities Commission ("EOC") and the Disability Rights Commission ("DRC").  This new body is charged with being "an independent and influential champion whose purpose is to reduce inequality and eliminate discrimination, strengthening good relationships between people and protecting human rights"*.  These are fairly lofty ideals. 

The question people find themselves asking is why is this new body necessary?  Surely in this enlightened age of the 21st century, people will recognise other peoples' individuality and there should be no need for specific bodies designed to interfere in these relations.  Clearly, that is far from reality and bears no truth in the day to day operation of our society,  particularly in the work place.  In the UK, we have had equality legislation since as far back as 1970 with the Equal Pay Act followed by the Race Discrimination Act,  the Sex Discrimination Act and relatively recently, legislation outlawing discrimination on the grounds of disability, religious belief, sexual orientation and age. 

The most recent statistics published by the Employment Tribunal Service demonstrate that during the year 2006/07, there was an increase of 15% on the previous year of employment tribunal claims lodged.  The primary reason for this would seem to be an increase in discrimination claims.  Between the years 2005/06 and 2006/07, there was a 155% increase in equal pay claims and 100% increase in sex discrimination claims.   Age discrimination claims also increased.  However, the numbers of these were only 972, which is far below that which people predicted.   Ironically, during  2006/07 there was a reduction in the number of race discrimination cases lodged.

Public sector employers are already subject to an obligation to promote equality in services and employment terms of race, disability and gender and require to carry out an audit of this.   The audit must identify what areas may require corrective action and thereafter, the council must prepare and implement such an action plan.  The situation must then be monitored on an ongoing basis.  The authorities under the auspices of the EHRC have power to investigate these allegations and to issue enforcement notices and where necessary, implement mandatory action plans. 

But surely this only applies to the public sector?  The reality is that the EHRC is charged with ensuring equality and eliminating discrimination.  The Government Equalities Review Report 2007 stated that one of the main goals of the EHRC must be to extend the promotion of equality to the private sector and that "extending sympathetic guidance to the private sector on modern workplace culture should be the early priority for the EHRC".  Although there are no specific proposals at present for introducing these obligations to the private sector, this is something which will very much be in the focus of the EHRC.

Rules seem to apply depending on what discrimination is being alleged.  The EHRC will assist in developing and administering a Single Equality Act protecting people from discrimination whatever the grounds.  The intention is to have one single act highlighting equality of individuals and what is fair treatment for all.  Avoiding different treatment based on individual and personal circumstances would, it is anticipated, make enforcement far simpler.  Under the new Act, Tribunals would be given new enforcement powers allowing them to provide improvement notices for employers;  make publicity orders about the conduct of the company in the manner in which it treats its employees and also to direct that senior directors and managers of the company must undergo training in equality. 

Whilst it may be argued that the increase in numbers of equal pay and sex discrimination claims is entirely to do with the public sector, the fact is that these claims may in due course affect the private sector. In reality, aside from the time spent dealing with Tribunal claims and the stress and emotion that goes with these, the average award in such claims is considerably higher than the average award in "simple" unfair dismissal claims.  In the year 2006/07 the average award in an unfair dismissal claim was £7,974 whereas in race, sex and disability the figures were £14,049, £10,052 and £14,059 respectively.  Prevention is better (and cheaper!) than the cure.

Prior to 1 October, different bodies were charged with advising and supporting claims in relation to different types of discrimination.  With the creation of the EHRC, focusing on equality in general, it is likely that the law in this area will develop more quickly and monitoring illegal and unfair practices will be dealt with more effectively.

Paul Brown is a partner at Biggart Baillie and is head of the firm's employment unit.  He is accredited by The Law Society of Scotland as a specialist in employment law.

This article was published in CA Magazine, November 2007.


The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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