Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - United Kingdom of Great Britain and Northern Ireland (Ratification: 1999)

Article 1(1)(a) of the Convention. Protection against discrimination based on social origin and political opinion. The Committee notes that the “protected characteristic” of race in the Equality Act 2010 is defined in section 9 to include colour, nationality, ethnic or national origins, and that by order a Minister may amend the section “to provide for caste to be an aspect of race” (section 9(5)(a)) or amend the Act so as to provide for an exception to a provision to apply or not apply to caste, or to apply or not apply to caste in specified circumstances (section 9(5)(b)). The Committee also notes that the United Nations Committee on the Elimination of Racial Discrimination (CERD) has raised the issue of the existence of caste-based discrimination and harassment in the context of work, and has recommended that section 9(5)(a) be invoked in order to provide remedies to victims of caste-based discrimination (CERD/C/GBR/CO/18-20, 14 September 2011, paragraph 30). The Committee, recalling its previous comments, notes that the Equality Act does not provide protection against discrimination based on political opinion. Recalling the need to ensure effective protection against discrimination based on at least all the grounds enumerated in Article 1(1)(a) of the Convention, the Committee asks the Government to invoke section 9(5)(a) of the Equality Act so that caste based discrimination, which is a manifestation of discrimination based on social origin, is covered, and also to take steps to ensure effective protection against discrimination based on political opinion, and to provide information of steps taken in this respect. Please also provide information regarding how protection against discrimination in employment and occupation based on social origin and political opinion is provided in practice.

Discrimination based on race, colour or national extraction. The Committee is aware of the recent riots in the country, and notes the concerns raised by CERD regarding the racial undertones of these events, as well as reports of the increase in attacks on and negative portrayal of various groups, including ethnic minorities and immigrants. The Committee also notes the poor employment outcomes of Roma and travellers, as well as the increased negative stereotyping and stigmatization of these communities (ibid., paragraphs 9, 11 and 27). The Committee asks the Government to take measures to promote tolerance of and combat negative stereotypes related to, ethnic minorities, migrant workers, Roma and travellers, and to provide information on steps taken in this regard. It also requests the Government to provide information on steps taken to ensure protection against discrimination based on race, colour or national extraction in employment and occupation.

Sex discrimination. Sexual harassment. The Committee notes the provisions of the Equality Act prohibiting harassment, which include sexual harassment, including both quid pro quo and hostile environment sexual harassment (sections 26 and 40). The Committee asks the Government to provide information on the application of sections 26 and 40 of the Equality Act, with respect to sexual harassment in employment and occupation, including any interpretation of the limitations set out in section 26(4). Noting the absence of a reply from the Government, the Committee again requests information on the impact of the action plan on preventing sexual harassment and improving the mechanisms to deal with sexual harassment complaints in the armed forces, and on the implementation of the new Partnerships Agreement between the Ministry of Defence and the Equality and Human Rights Commission with respect to the equality strands (namely, equality target groups). The Committee also requests information on any further measures taken to prevent and address sexual harassment in employment and occupation.

Discrimination on the basis of religion. The Committee recalls its previous comments in which it noted the barriers faced by Muslims to employment, including discrimination, lack of suitable training and educational underachievement. The Committee noted that the Employment Equality (Sexual Orientation, Religion or Belief) Regulations do not address directly the issue of display of religious symbols in employment, but that this issue is referenced in judicial decisions. Noting the absence of a reply on this point, the Committee again asks the Government to provide information on measures taken to address stereotyped attitudes concerning religion in the workplace and to address the barriers to employment and education faced by Muslims.

Multiple discrimination. The Committee notes that the Equality Act addresses combined discrimination, which does not, however, cover the protected grounds of marriage and civil partnership or pregnancy and maternity (section 14(2)). Pursuant to section 14, discrimination can arise because of a combination of two relevant protected characteristics, though it is limited to cases of direct discrimination, and the complainant needs to show that there was direct discrimination because of each of the characteristics in the combination taken separately. The Committee asks the Government to confirm whether section 14 is in force, or when it is due to come into force. The Committee also requests the Government to provide information on the practical application of the provisions relating to combined discrimination, including the number of cases filed, and the results thereof. The Committee also asks the Government to indicate whether consideration is being given to extending combined discrimination to cases of indirect discrimination, or to addressing the intersecting nature of various grounds of discrimination. The Committee would also welcome information on the rationale for excluding certain protected grounds from being raised as combined discrimination, as well as for limiting combined discrimination to only two grounds.

Article 1(1)(b). Age discrimination. The Committee notes the Government’s indication that regulations have been adopted pursuant to which employers are no longer required to use the default retirement age – they can choose to use a higher age or have no normal retirement age. The Government also states that an evidence-based review of the default retirement age will be undertaken, and if evidence suggests that it is no longer needed or no longer appropriate, it could be removed. The Committee asks the Government to provide a copy of the amendments to the Employment Equality (Age) Regulations, 2006, or of any other regulations relating to age discrimination, and to provide information on the practical application of the laws and regulations in force in this context, including the number and outcome of age discrimination complaints. Please also provide information of the outcome of and follow-up to the review of the default retirement age.

Workers with disabilities. The Committee notes also the Government’s indication that the employment rate of disabled people in Great Britain has increased 9.7 per cent since 1998 to 47.5 per cent. It also notes the adoption by the Scottish Government of the Supported Employment Framework entitled “A working life for all disabled people”. The Government states that the framework sets out an alternative model of supported employment that involves a staged approach of progression to move disabled people towards sustained, mainstream employment. The Committee asks the Government to continue to provide information on the measures taken to promote equality of opportunity and treatment of workers with disabilities, and on the impact of such measures.

Article 2. Equality of opportunity and treatment between men and women. The Committee notes with interest the information provided regarding the impact of the gender equality duty on increasing women’s representation in areas where they were traditionally under-represented, in particular in overcoming barriers to recruiting women as firearms officers in the Metropolitan Police through positive action measures. The Government indicates that through consultation several barriers faced by women were identified, namely the written application process, the job-related fitness test, a lack of information and guidance, myths about the department, and lack of support. A range of action was undertaken to address these barriers, including training female firearms officers to mentor female applicants, coaching on how to complete the application form, and, acknowledging the difference between men and women’s physiologies, providing training programmes equipping women to pass the fitness test under the same conditions as men. The Committee notes further that according to the Government, there is no specific statutory duty on public authorities in Wales to prepare gender equality schemes, though they are subject to the general equality duty. The Committee also notes the information provided on the range of measures undertaken by the Women and Work Commission, including projects to increase the availability of quality, part-time work, the Women’s Enterprise Task Force to accelerate women’s enterprise development, the continuation of the Women and Work Sector Pathways initiative which supports innovative projects to help women progress in their careers, including in areas where they have been under-represented, and measures taken to ensure that career advice is free from gender stereotyping. The Committee asks the Government to provide information on the impact of the new single equality duty on promoting equality of opportunity and treatment between men and women in the public sector, including in Wales and Scotland, as well as on the adoption of gender equality schemes. Please also continue to provide information on the measures taken to improve equality of opportunity and treatment between men and women in the public and private sectors and the impact of such measures, including any follow-up to the measures taken by the Women and Work Commission.

Measures to support workers with family responsibilities. The Committee notes the information provided regarding the amendments to the Childcare Act 2006 and updates on the implementation of the Work and Families Act 2006, including extending the right to request flexible working hours to parents of children under 16, and providing additional paternity leave to working fathers. The Government indicates its continued commitment to extending the right to request flexible working hours to all and to promoting a system of shared parental leave. The Committee asks the Government to continue to provide information on the measures taken to promote equality of opportunity and treatment for workers with family responsibilities, including with respect to the amendments to the Childcare Act 2006 on the availability of early childcare services and the implementation of the Work and Families Act, including the number of men and women requesting, and those undertaking, flexible working arrangements. Please also provide information on measures taken to extend the right to request flexible working and to promote a system of shared parental leave.

Equality of opportunity and treatment of ethnic minorities. The Committee notes the Government’s acknowledgement that the employment rate of Pakistanis and Bangladeshis remains lowest among ethnic minority groups at 47 per cent and 45 per cent respectively, with rates for women in these groups being even lower (27 per cent and 29 per cent, respectively). The Government also indicates that the proportion of civil service employees from minority ethnic backgrounds in 2009 was 8.9 per cent, compared with 8.5 per cent in 2008. The Government also states that the Department of Work and Pensions (DWP) aims to raise the ethnic minority employment rate and to narrow the gap between the ethnic minority rate and the overall rate. The Committee notes the range of research projects sponsored by the DWP including on racial discrimination in recruitment practices, evaluation of race equality procurement pilot programmes, and advising on the development of a race equality employment index. The Committee also notes the work of the Ethnic Minority Advisory Group and Ethnic Minority Employment Task Force to which the Government refers, as well as the measures taken by the Scottish Government. The Committee asks the Government to continue to provide information on the measures undertaken to promote equality of opportunity and treatment of ethnic minority groups, and requests the Government to indicate the concrete impact of these measures in reducing the ethnic minority employment gap, including for Pakistani and Bangladeshi women and men, in the public and private sectors. Please also provide information on the follow-up to the Glasgow Works partnership, which was due to end in 2010, as well as to the research sponsored by the DWP. The Committee requests the Government to clarify whether impact assessments on race inequality have been and will continue to be prepared by public bodies, and the effect of such assessments.

Article 3. Cooperation of employers’ and workers’ organizations. The Committee notes that according to the Government a programme of exemplar initiatives by employers has been launched, including projects to encourage women to find out about and enter jobs traditionally held by men, supporting mothers returning to work, and creating better quality opportunities to work part-time. The Government states that 113 exemplar employers from the public and private sectors are taking part. The Government also provides information on the Scottish Union Learning Fund, promoting activity by trade unions to support lifelong learning. The Committee asks the Government to provide information on the impact of the programme of exemplar initiatives by employers, and the Scottish Union Learning Fund on equality and non-discrimination in employment and occupation. Please also provide further information on any other measures taken in cooperation with employers’ and workers’ organizations to promote equality of opportunity and treatment in employment and occupation.

Article 4. National security. The Committee notes that the Equality Act has a blanket exception related to national security, providing that “a person does not contravene this Act only by doing, for the purpose of safeguarding national security, anything it is proportionate to do for that purpose” (section 192). The Act also provides for modified rules of procedure in the interest of national security (section 117). The Committee asks the Government to provide information on the practical application of the national security exception to the Equality Act, including the number and nature of cases in which such an exception has been raised, and the impact of the exception on employment and occupation.

Article 5. Protective measures regarding women. The Committee notes that pursuant to schedule 22 of the Equality Act, protective measures with respect to women in the context of Part 5 of the Act (work) are permitted. The Committee requests the Government to provide information on the specific restrictions on women’s employment currently in force or envisaged, and the rationale for such restrictions.

Parts III and IV of the report form. Monitoring and enforcement. The Committee notes the Government’s indication that pursuant to the Equality Act, employment tribunals are able to make recommendations in discrimination cases to benefit the wider workforce and prevent similar discrimination from occurring in the future (section 124). The Committee welcomes the summaries of relevant cases relating to the Convention attached to the Government’s report, as well as the information on the number and nature of discrimination cases dealt with by the employment tribunals. The Committee requests the Government to continue providing information on the judicial and administrative decisions involving questions relating to the application of the Convention, and to provide specific information on any broader recommendations of the employment tribunals regarding discrimination in employment and occupation, and the impact of such recommendations on the wider workforce. Noting the concerns raised by the United Nations Committee on the Elimination of Racial Discrimination regarding proposed budget cuts to the Equality and Human Rights Commission (CERD/C/GBR/CO/18-20, 14 September 2011, paragraph 15), the Committee hopes that the Commission will be given the necessary means and resources, both human and financial, to fulfil its expanded mandate, and asks the Government to provide specific information in this regard.