Achieving Equality at Work edited by Aileen McColgan, available from Institute of Employment Rights, 177 Abbeville Road, London SW4 9RL.  Priced £12 (trade unions and subscribers), £30 (others). Telephone 020 7498 6919, web www.ier.org.uk

The last 30 years have seen significant developments in the legal regulation of discrimination at work. Yet discrimination and inequality of opportunity are endemic. The rolling implementation of the Race Directive and Framework Directive on Equal Treatment in Employment and Occupation over the next few years, offer an opportunity to simplify and strengthen current UK provisions.

But what are the main aims of the Directives and will the new Regulations proposed by the government adequately transpose the provisions into domestic law? Is the government right to focus on the creation of a Single Equality Commission or would it be better to first develop a coherent and comprehensive Single Equality Act? These questions and more are addressed in detail by an expert panel of contributors in a timely report published by the Institute of Employment Rights.

In well structured, cogently argued and easily readable chapters, each head of discrimination is examined in detail. The chapters begin with a critical review of current legislation before examining the provisions of the Directives and ending with policy suggestions for the future.

Race and work - Karon Monaghan argues that current race discrimination laws are limited by not requiring positive measures to overcome existing disadvantages and because the protection is restricted by the "justification" clause, which "accommodates the interests of the dominant community at the expense of the minority". 
She goes on to consider the details of the European Race Directive 2000 and notes that the improved protection offered is marred by the complexity of the structure. It is transposed by way of Regulations rather than primary legislation, which "have rendered an already complex area of law impossible for anyone but the most expert discrimination practitioners to negotiate".

Towards sexual orientation diversity at work - Sarah Hanett considers the implications of one of the new areas of discrimination law - sexual orientation. While the author welcomes the Regulations as the first legislative step in proscribing discrimination on the basis of sexual orientation, she also highlights a number of weaknesses 
First, the Regulations fail to outlaw discrimination on the basis of marital status, denying equal access to workplace benefits like pensions. Second, protection is not extended to the provision of goods and services. Third, the Regulations specifically allow religious organisations to discriminate against lesbians, gay and bisexual employees.

Diversity of religion and beliefs - Mark Bell welcomes the introduction of the Employment Equality (Religion or Belief) Regulations and examines in some detail the extent to which they comply with the requirements of the Directive. 
He notes that the new definition of indirect discrimination helpfully shifts the debate away from statistical analysis in favour of scrutinising the possible justification for the practice. However, the justification clause in the UK Regulations is "more flexible" than in the Directive and "rather unhelpful". 
The government has also failed to include a specific clause making it unlawful to direct another to discriminate (eg an employer who instructs an agency not to send a Sikh for interview). On a more positive note, he notes that the scope of the Regulations is wide, protecting contract and agency workers and extending coverage to the post-employment relationship.

Eradicating disability discrimination - With six years of case law to review, Mary Stacey examines the UK's disability discrimination legislation before assessing whether faults will be corrected by the Disability Discrimination Act (Amendment) Regulations 2003. She then considers what further action is required if disability discrimination is to be eradicated from UK workplaces. 
The author expresses disappointment that the government has not used the opportunity provided by the Directive to introduce more wholesale reform but she concludes by welcoming the Regulations as a significant step forward. She believes they will go a long way towards helping the Disability Discrimination Act lose its "poor relation" status. However, more is required, most pressingly in the appellate courts' approach to the justification defence which is used to defend the status quo, rather than achieve the avowed purpose of the legislation to create rights for disabled people.

What's the difference? - the question of age - Lucy Anderson looks at how the government proposes to implement the age discrimination aspects of the Employment Directive. She notes that whilst unions have no difficulty with anti-ageist rights in principle, "unions have been worried that employers will use the opportunity of new legislation to "level down" rights to pensions or benefits linked to age or seniority" 
Other weaknesses identified include reducing the calculation for unfair dismissal awards for the 41 to 65 age group from one and a half weeks to one week's pay. The lack of a statutory commission charged with investigating and enforcing the rights is identified as the biggest weakness. 
The author concludes by saying that while the proposed Regulations provide a welcome first step, they will be weak in comparison with equivalent provisions in other countries and that to be effective, age discrimination must be incorporated into a Single Equality Act.

Sex equality at work - Professor Aileen McColgan begins by highlighting that women still suffer from glass ceilings, sticky floors and lower pay. Attempts to ameliorate the worst aspects of inequality have often had the result of simply institutionalising women's status as second-class citizens in the workplace. 
She argues that the Government should focus on radically tackling the long-hours culture in the UK by adopting a more aggressive implementation approach to the Working Time Regulations. Workers in the UK have the longest working hours in Europe. 
The author then critically analyses the UK framework of equality legislation before assessing the extent to which the amended Equal Treatment Directive will address the flaws identified.

Enforcement and remedies - In a final section, the editor focuses on the important issue of enforcement before pulling together the strands of previous chapters. The current enforcement approach is a highly individualistic one, which ignores the many collective mechanisms envisaged by the creators of the 1970s legislation. The result is that by far the most commonly used enforcement mechanism involves individual legal action in the employment tribunal - for which no legal aid is available. In legal terms, the main enforcement weakness is the fact that the burden of proof lies on the applicant.

Reviewing the likely impact of the new Directives, the editor highlights the positive point - that the burden of proof in most cases will shift from the victim to the accused. This is welcomed but it leaves untouched many other problems: 

  • the newly protected grounds of sexual orientation, age and religion and belief have not been assigned to an existing Commission let alone allocated a specific Commission of their own 
  • the government does not intend to provide for the award of compensation in unintentional indirect race discrimination cases 
  • the individualistic enforcement mechanisms remain; these must be supplemented by a duty on employers to take active steps to scrutinise their employment practices and eliminate any discrimination 
  • levers such as the award of public contracts to employers who make genuine efforts to improve workplace practices should be used; and 
  • the equality commissions (or Single Equality Commission) must be given strengthened powers of formal investigation.