Contents. Preface to Second Edition List of Abbreviations Table of Cases Table of Legislation

Transcription

1 Contents Preface to Second Edition List of Abbreviations Table of Cases Table of Legislation v vii xv xxi 1 The Aims of Equality Law 1 The Equality Act The Act since A History of Bits and Pieces 11 Meanings of Equality 17 The Unitary Human Rights Perspective 18 Respect for Equal Worth, Dignity and Identity as a Fundamental Human Right 20 Eliminating Status Discrimination and Prejudice 22 Consistent Treatment/Formal Equality 24 Removing Barriers to Equal Treatment 25 Equality of Opportunities, Capabilities, and Outcomes 27 Fairness 29 2 Protected Characteristics 35 Extent of Status Protection 35 Age 37 A Response to a 21st-century Challenge 37 Balancing Individual Dignity with the Rights and Interests of Others 38 Children 40 Disability 41 From Paternalism to Rights 41 Definition of Disability 43 Race and Related Characteristics 45 The Changing Context of Race 45 Legal Definition of Ethnic Origin 47 National Origin and Nationality 49 Caste 50 Religion or Belief 51 ix

2 x Contents Sex and Related Characteristics 57 Sex and Gender 57 Gender Reassignment 59 Pregnancy and Maternity 61 Marriage and Civil Partnership 63 Sexual Orientation 65 3 Prohibited Conduct 67 Introduction 67 Direct Discrimination 67 Less Favourable Treatment 67 Levelling Down 69 Knowledge, Intention and Motivation 70 Because of a Protected Characteristic 75 Perception and Association 76 Intersectional or Multiple Discrimination 77 Justification of Direct Age Discrimination 78 Indirect Discrimination 81 Harmonisation 81 Elements of the Tort 84 Knowledge, Intention and Motive 86 Justification 87 Disability Discrimination 91 Why Special Provisions? 91 More Favourable Treatment 91 Discrimination Arising from Disability 91 Duty to Make Reasonable Adjustments for Disabled People 94 Indirect Discrimination 97 Harassment 97 Victimisation Work and Equal Pay 105 Introduction 105 Work 106 General Scope 106 Genuine Occupational Requirements 110 Religious Requirements 111 Mandatory Retirement Age 113 Seniority Rules 115 Equal Pay for Men and Women 116 The Long Struggle for Equal Pay 116

3 Contents xi Relationship between Equality Clause and Sex Discrimination Claims 121 Hypothetical Comparators 122 Choice of Comparator 123 Genuine Material Factor (GMF) Defence 127 Collective Bargaining and Transitional Arrangements 129 Discussions about Pay 131 Gender Pay Gap Information 132 Mandatory Equal Pay Audits Services, Premises, Education, Associations, and Other Unlawful Acts 135 Services and Public Functions 135 General Scope 135 Age Exceptions 136 Constitutional Functions 136 Armed Forces and Security Services 137 Immigration Functions 138 Religion or Belief Exceptions 139 Separate, Single-Sex, and Single-Group Services 140 Health and Care 142 Insurance 143 Broadcasting 143 Sport 144 Premises 144 Education 145 Exceptions Relating to Marriage etc, and Age 145 Exceptions Relating to Harassment 146 Exceptions Relating to Religion or Belief 146 Exception Relating to Single-Sex Institutions 149 Associations 149 Private Clubs 149 Political Parties 151 Other Unlawful Acts 152 Liability of Employers and Principals 152 Liability of Employees and Agents 153 Instructing, Causing or Inducing Contraventions 154 Aiding Contraventions Advancement of Equality 155 Changing Organisational Policy and Behaviour 155

4 xii Contents Positive Action 156 General Exception Relating to Positive Action Measures 156 Recruitment and Promotion 159 Political Parties 161 Charities 162 Public Sector Equality Duty 163 Purpose 163 The General and Specific Duties 163 Engagement 167 Contract and Subsidy Compliance 168 What Is Meant by Having Due Regard? 169 Which Authorities Are Covered? 172 Enforcement 172 Review of the PSED Enforcement 177 The Equality and Human Rights Commission 177 A Single Commission 177 Structure and Management of the Commission 179 General Powers and Duties 180 Human Rights 181 Enforcement Powers 183 Support for Individuals and the Provision of Conciliation 188 Resources 191 Individual Enforcement 191 County and Sheriff Courts 191 Employment Tribunals 192 Limiting Accessibility 195 Decline of Tripartism 197 Representative Actions 199 Equal Pay Procedure 199 Legal Assistance 201 Burden of Proof 203 Time Limits 205 Conciliation and Mediation 207 Compensation 208 Recommendations An Appraisal 213 Harmonisation: Too Little or Too Much? 213 Changing Organisational Policy and Behaviour 220

5 Contents xiii Improving Enforcement 224 Limits of Law: Poverty and Disadvantage 226 Law and Politics 229 References 231 Boxes 1.A Northern Ireland, Scotland and Wales 10 1.B Five Generations of Legislation 16 1.C Overview of the Structure of the Equality Act Work: Main Exceptions (Equality Act schedule 9) 109 Tables 7.1 Claims accepted by employment tribunals Employment tribunal cases: disposals without hearing Employment tribunal cases: outcomes of hearings Median awards of compensation by employment tribunals Injury to feelings median awards (including aggravated damages) by employment tribunals Index 239