The original purpose of this blog was to let me get a few things off my chest about the Equality Act. And I will in due course. Despite what some of its detractors say, it is a phenomenal achievement that it has finally become law (or at least, most of it has), but some of what’s in it (sloppy drafting and half-baked ideas) makes my heart sink.
But today, I find myself compelled to stand up and defend it, particularly from the foolishness that I found myself listening to on this morning’s Today programme. The whole interview seemed to suggest that the Equality Act is all new. It isn’t. Largely, it consolidates the existing legislation. There are some important changes, although the most controversial were not brought into force and, in my view, probably never will be.
Before I get started…
First I’ll declare an interest: I am an employment lawyer, I specialise in discrimination law and most of what I will say on this blog will be written from that perspective. A deeply cynical perspective in some respects, but I’m not going to apologise for that. This is meant to be a rant, after all. But like most discrimination lawyers, I believe in discrimination law as a force for good.
Political correctness gone barking mad?
So this morning I found myself listening to the Today programme discussion of the Equality Act (Listen here if you must). I actually missed it being broadcast on the Radio, but found a few despairing comments going round Twitter:
@daznewman “Can’t listen to Radio 4 as they seem to be discussing Equality Act. Vast swathes of ignorance on show – unbearable”.
So with heavy heart I went to the Today website. You can see from the website we are off to a bad start:
Author Simon Jenkins and solicitor Kiran Daurka discuss the future of political correctness in the UK.
Political correctness? Ah, yes, that’s what discrimination law is about (perhaps it is if you read the Daily Mail, although strangely they haven’t covered the Equality Act today*). But it gets worse. Apparently section 26 (which now enables a person to complain of harassment if they have overheard offensive remark not aimed at them) has created the sort of thought-crime that reminds Simon Jenkins of:
“The kind of way of introducing state authority that is familiar from communist and fascist regimes”.
He also suggests that this new law lacks proportion and fails on reasonableness. Well, what he actually says is that “reasonableness fails one”, which I tend to agree with in his case, although that’s probably not what he meant. In any case perhaps his attention ought to have been drawn to section 26(4), which creates an explicit reasonableness test. This basically means that a person can only claim to have been harassed either if someone intends to make them feel harassed (fair enough, surely?) or if it’s reasonable for them to feel harassed.
The whole interview seems to have proceeded on the basis that the Equality Act is all new. It isn’t. Largely, the Equality Act consolidates the existing legislation, has a good stab at making some of the principles developed through 30-odd years of case law more explicit in the legislation, and iron out some of the anomalies that even a generous interpretation of the old law couldn’t deal with. There are some important changes, although the most controversial (positive action in recruitment, combined discrimination and gender pay reporting) are not in force and in my view probably never will be. From everyone I’ve spoken to, the one that is causing the most concern is the ban on pre-employment health questions (perhaps I’ll blog about this another time). No one I know has batted an eyelid about the Act’s slight widening of the harassment definition.
A particular disadvantage
Sadly, Kiran Daurka of Russell Jones & Walker, who was there to fly the flag for the Equality Act, was at rather a disadvantage as it seemed to me that John Humphries was mainly interested in ridiculing her attempts to explain the purpose of the law (his apparent suprise that gender is a protected characteristic was laughable) and interrupting her sentences. And Jenkins basically accused Daurka of only defending the Equality Act because, as a lawyer, there was money it it for her.
Bearing in mind this interview was the result of putting a respected BBC journalist and a respected Guardian journalist together, it’s hardly any wonder the Daily Mail didn’t feel the need to waste any time ridiculing the Act *.
Perhaps Made in Dagenham, in cinemas from today (surely no coincidence?), will do a better PR job for the UK’s equality laws.
* actually now they have – see comments