Thursday, 30 September 2010

Incompatible views on equality legislation

Those following my correspondence asking of the Equalities Office why the exceptions in the Equalities Act were there might like to see how it ends. This is the reply to the last message I sent, and further follow-ups to them don't seem productive as I think we're talking at cross-purposes. (I do have another plan)

I've cut the reply up, because it's a long message.

In reply to your further e-mail, I should say at the outset that the Equality Act 2010 is not drafted in terms of exceptions to harassment protection, so my reply does not use that terminology. Rather what certain provisions in the Act do is to disapply the protection from harassment as provided for in section 26 of the Act.

I am not at all sure what the legal difference between an "exception" and a "disapplication" is, but okay.

It may be helpful if in answering your questions, I first provide some background to why there is any specific protection from harassment in our discrimination law at all.

The Equality Act 2010, as with the discrimination law currently still in force, contains a patchwork of protection against conduct which would be considered to be harassment. This has happened as a freestanding right not to be harassed has been introduced gradually into domestic law to comply with our European legal obligations in relation to specific fields and specific protected characteristics.

Prior to the introduction of the freestanding right, behaviour which amounts to harassment was outlawed by the prohibition on subjecting an individual to a detriment, which is one method of committing direct discrimination. Therefore the detriment provision covered most acts of harassment related to all relevant protected characteristics - certainly in the sense that the word is commonly understood. The detriment provision remains part of the law, which means that where a victim of harassment cannot bring him/herself within the definition of the freestanding right, that individual can nevertheless argue the offending behaviour amounts to a detriment.

It is for this reason that there is not blanket protection from harassment in the Equality Act. This explanation of the current position in domestic discrimination law addresses your questions 1 to 3.

This particular reasoning strikes me as rather backwards, but I'll look at it in more detail later.

Returning to the first part of your e-mail, this deals with the practical application of the law. With regard to how the law has been working in practice, since 1986, there have been successful tribunal cases where victims of sex-related, sexual and race harassment at work were found to have been subjected to a detriment. However, we are not aware of any cases of this nature outside employment (which includes schools) reaching the courts since the introduction of the Sex Discrimination and Race Relations Acts in the 1970s, nor since specific protection was first introduced into domestic discrimination law in 2003. So the evidence suggests that pupils are not looking to discrimination law to deal with these issues.

It never even occurred to me, when I was being bullied at school, that there might be a provision in the law that prevented it. Certainly, applying the letter of the law to school bullies is something that gives confusing results. I can't imagine that there would have been any support should I have decided to pursue either a civil case for damages or a criminal case against the bullies at my school, nor could I have afforded a sufficiently good lawyer on my pocket money anyway.

In the case of LGB and/or trans pupils, who might not be out to their families, legal action (or any form of official action) takes on even more difficulties.

At any rate, this seems more to be an argument for not applying any harassment protections to pupils (or indeed any legal rights at all, if you take the argument much further), not for specifically excluding homophobic, transphobic and religionist harassment.

I shall turn now to why we believe the provisions in the Equality Act are adequate. We recognise that the detriment protection would not cover cases where the employer treats everyone equally badly, for example where he or she subjects both men and women to sex-related verbal abuse but only a woman finds this particularly offensive. However, there is no evidence that this is the sort of situation which lesbian, gay, bisexual and transgender (LGB and T) people are concerned about outside employment. What people are worried about are homophobic bullying and harassment which would be covered by the detriment protection because it is only LGB and T and not heterosexual people who would be subjected to such abuse. Similar arguments apply in relation to instances which might be considered to be harassment-like conduct related to religion or belief.

Nope, no evidence at all that trans people are concerned about this outside employment. Definitely none. They got a lot of letters about this at the time, and amendments were tabled in Parliament (though they sadly didn't get scheduled for debate).

The idea that people who are straight and are known to be straight are not subjected to homophobic slurs is also in obvious denial of the facts. This happens all the time. It's indisputably nowhere near as serious in effect as the same slurs being used against LGB people, but it's still not right. Anyway, the Act provides the same (lack of) protection to heterosexual people.

We do not therefore think there is a gap between the LGBT harassment protection offered by the detriment approach and the protection offered by the freestanding right. We are clear however that in every case we can envisage, such acts would constitute less favourable treatment or detriment and therefore be covered by the direct discrimination provisions in the Equality Act.

As for the intent of the Act, what both the Act and the Explanatory Notes say is effectively that where a person is subjected to harassment-like conduct, they can bring a claim of harassment, where there is express harassment protection or a claim of direct discrimination where express harassment protection does not apply, but a claim cannot be made for both harassment and direct discrimination on the same facts.

Turning to your question number 4, the harassment provisions in the Act give effect to specific obligations in certain European Directives, namely Directives 2000/43/EC, 2000/78/EC, 2002/73/EC and 2006/54/EC. The harassment provisions in the Act are therefore not redundant.

This still doesn't make sense. If the provisions in the Act aren't redundant because they're needed to implement European Directives, then this means that they provide some protection over and above the direct discrimination protections, even if the Equalities Office has a self-admitted lack of imagination in this area. In which case, why not protect against all forms of harassment in this way?

Furthermore, "we're only protecting people against harassment because the EU says we have to" doesn't strike me as the best attitude for an Equalities Office to have. I would expect - of all offices of the government - them to be taking the most proactive approach. (More worryingly, they probably still are).

There seems to be a major difference in approach here - I think discrimination on unfair grounds should be illegal in all its forms. The government seems to think that only certain forms should be illegal, those that have received the most complaints in the past (trans people are going to lose that numbers game every time, of course), regardless of what this says about the actual amounts of discrimination occurring, or whether even a small amount should still be illegal.

At any rate, this seems to be the answer to the question - to get harassment protections extended to LGBT people and religious groups will require an EU Directive to give the government no choice.

I have three MEPs, one from each major party, so that seems like a good place to start. More on this once I've drafted the letters...