People power

Equal opportunities campaigners have been struggling for decades to get their cause onto the political map and into the social consciousness. There must have been times when even the most stalwart began to lose hope, but in the new millennium, causes that have been given the cold shoulder are finally being addressed, and hopefully even redressed. There is no doubt that equal opportunities are experiencing a new dawn and are here to stay.`Legislators and lawyers in the UK certainly have their work cut out. In October 2000, the Council of Ministers signed a European directive (based on Article 13 of the Treaty of Amsterdam) that outlaws discrimination on the grounds of gender, race, disability, and for the first time, religion, sexual orientation and age. The elements relating to age and disability must be implemented by 2006, and in 2003 each member nation must account for how far they have got. Of course the UK is relatively advanced on the race/religion, gender and disability front, having already legislated for all three, but it is still struggling along with age and sexual orientation. We also have the Employment Relations Act giving back wider rights to be in a union and carry out collective bargaining. There are many new benefits such as extended maternity leave and paternity leave, plus legislation ensuring a minimum wage and a reasonable working week.`But the law itself is only the starting point, and it is up to employers, the Government and the public at large to haul themselves into the next level of human evolution and understand why discrimination is not such a noble instinct. The people at the forefront of this education challenge are the various commission chairs and also the conciliators, arbitrators and ultimately judges working in the employment field, whose task it is to ensure that UK law and justice live up to their promise.“Mr Justice Lindsay, president of the Employment Appeal Tribunal`Outwardly cautious and diplomatic, Mr Justice Lindsay nevertheless is making some interesting changes as president of the Employment Appeal Tribunal (EAT).`A former pupil and tenant of 7 Stone Buildings, Judge Lindsay is, according to his clerk of 38 years, a “very nice, patient and considerate man who is well-regarded by the courts”. He is a keen supporter of his predecessor Mr Jusitce Morison's introduction of preliminary hearings to cut down on the expenditure of dead-end appeals, but he wants to go one step further. “We have to weed out the hopeless cases, but it means three people have to go through the papers,” he says. “I'm trying to devise a system under which one judge will look at every prospect for appeal for 10 minutes. If in that 10 minutes he can plainly see that case ought to go to full hearing, then it can do so without further ado.”`Lindsay recognises that the everyday reality of his latest job will be quite different from what he is used to. “When I was a junior, employment law hardly existed. In those days it was called 'Master and Servant',” he quips. “Employment lawyers tend to make more jury points – more than you would perhaps expect from chancery people. But a case is a case, however it's presented.”`In response to the vast array of new legislation coming on stream, Lindsay says: “The question isn't does one have a view about it, but rather, what is the will of Parliament (when interpreting those laws)?” He foresees that while the proportion of appeals probably will not change, the volume of work coming to the EAT will undoubtedly increase hugely. He also predicts a need for extra funds but is not optimistic about getting them. “There's a very strange arrangement that exists. The actual premises and basic expenditure behind the EAT is from the Department of Trade and Industry (DTI), which is a situation that occasions a lot of comment and some friction,” he says.“Bert Massey, chairman of the Disability Rights Commission`With the setting up of the Disability Rights Commission (DRC), which opened its doors in April last year, disability rights are moving into a new era of awareness and positive action. Its first chair, Bert Massey, is a long-time campaigner for disability rights and a man of indomitable will who is well aware of the challenge before him. “The commission has to work,” he says. “If it fails, it will put our cause back by many years.”`With an £11m annual budget, the DRC provides a full advisory information service to disabled people and employers. “We have a duty under the Disability Discrimination Act [1995] to try and remove discrimination against disabled people and we will be picking up many agendas to try and do so. Our first approach is to educate and persuade, and for most people I think that will work,” says Massey.`One problem is actually defining disability – ranging from slight myopia to HIV – in terms of bars to employment. Official figures vary from around 6 to 12 million according to which survey or governmental department has drawn them up. But with an estimated two million disabled people working in the UK, employment issues are crucial to the disability rights arena.`Massey says: “Work is still a way of not only gaining self satisfaction and all the other work ethics that come out of that status, but is also a way of having the resources to have a good life outside of work. Also, to have anything like a decent life in retirement depends on your work now.”`But for Massey the biggest issue is how to keep those who become disabled in their jobs. “Employers need to change their attitudes and not assume that when someone becomes ill or disabled they can't do their jobs. No employer hires a whole person. When a person becomes disabled we should look at the range of abilities they may have which would be useful to the company.”“Gurbux Singh, chairman of the Commission for Racial Equality`It is perhaps a sad indictment of today's society that the UK's head of racial equality claims that only economic arguments will bring about a level playing field in this country. However, such is the world we live in, and perhaps Gurbux Singh, chairman of the Commission for Racial Equality, is correct to claim that employers, institutions, politicians and the public must realise that it does not make economic sense to exclude large parts of the population from the workforce.`”There's a huge cost attached to racial discrimination,” says Singh. “Racial equality cannot be sold just on a moral or legal imperative, it makes sound business sense. If you do discriminate you're denying yourself considerable talent. That case is increasingly being accepted and it is already being addressed in the US.”`More than 25 years on from the Race Relations Act 1976, the Race Relations (Amendment) Act 2000 is widely hoped to put an end to institutionalised racism. The act places a positive duty on public authorities, including for the first time the police, to ensure that they treat everyone on the same footing. According to Singh, the 2000 act is the most important issue at the moment. “It's what's driving this organisation forward,” he says. “I want to see public attitudes fundamentally changed. I want to make sure that racism is as unacceptable as drink driving.”`Whether through chance or by design, Singh is the quintessential New Labour man – affable, charming, approachable and even handsome to boot. Singh's demeanour smacks of the “call me Tony” school of political thought. He is a graduate in political science from the University of Sussex, he is fluent in Punjabi, Urdu and Hindi, and has always been at the forefront of race issues.“Sam Mercer, campaigns director at the Employers Forum on Age`With an estimated one million fewer workers entering the workforce during the next decade and the number of pensioners on the increase, the fight against age discrimination is really starting to come into its own. Sam Mercer, campaigns director at the Employers Forum on Age (EFA), is challenging entrenched ideas about age in the workplace.`The forum was set up to represent employers in the age discrimination field, and its aim is to campaign against age discrimination and promote age diversity in the workplace. It does this by lobbying Parliament and other decision makers, sharing best practice and getting the age message through to employers. Its work includes campaigning on ageism both at the “grey” end of the market and also at the younger end, where workers may also experience negative pressures by virtue of their youth.`Its members include local government, public sector groups and 170 private companies, representing more than 10 per cent of the UK workforce. “There's been an increasing recognition since the late 1980s and early 1990s when large companies downsized, got rid of their old workers and then realised they had a huge problem because they had lost their corporate memory,” says Mercer. “That was combined with a period of near full employment and changing demographics, and it didn't take very long for companies to start considering age quite seriously.”`Ever the pragmatist, Mercer says: “We campaign on the business case for age diversity; we're not so concerned with moral issues. If you want to convince employers to look at age seriously and take discriminatory practices out of the workplace, you've got to give them a business reason for doing it. Laws send the message, but what's really going to make a difference is economic argument.”`And there certainly will be laws. Europe has decreed that all member states must have legislation on age discrimination enacted by 2006, and a framework in place as soon as 2003. The UK Government introduced a trial voluntary code of practice in 1999, which sets out best practice for recruitment, retention and redundancy. The findings of this trial, to be published in the summer, will be used as a base for UK legislation, as will the Government's age diversity working group, which includes the Confederation of British Industry, Trades Union Congress (TUC) and EFA. Mercer says: “They're talking about having a consultation process of a year, and then giving employers a couple of years to get used to how the legislation will look.”“Julie Mellor, chairwoman of the Equal Opportunities Commission`Anyone involved in the field of gaining rights is faced with a dichotomy – while their goal is to gain rights for groups of disadvantaged people, they must also engage in positive discussion with establishment forces in order to effect change. What this means in practice is seeing the policy makers' point of view in order to change their minds.`The latest chair of the Equal Opportunities Commission (EOC) Julie Mellor is faced with this task on a daily basis, but coming from a strong human resources (HR) background she is well qualified. Before taking her present role she worked in HR and industrial relations for British Gas, Shell and TSB, and on equality issues in local government for the London Borough of Islington and the now defunct Inner London Education Authority and the Greater London Council. “I have a feel for different cultures, how different organisations tick and can use that to understand how to affect change,” she says.`Mellor's vision of society is one where everyone can fulfil their potential and make their contribution, unhindered by assumptions or discrimination based on their gender. “My passion is about individuals being able to make their contribution in whatever walk of life is appropriate for their skills and interests – anything that gets in the way makes me angry,” she says.`It is not only gender issues that occupy Mellor's mind, she is also keen to clarify the sexual orientation debate. But unlike with other EOC campaigns such as the equal pay awareness campaign, she does not think the Government is being overly cooperative. “The Government is retaining the very forces of conservatism that it wants to get rid of.”`During the equal pay campaign, the legal profession attracted a lot of interest, partly because of the Law Society's findings. “The data is quite shocking,” says Mellor. “At partner level, the average earnings for women is £30,000 and for men it is £43,000,” she says. “There are all sorts of reasons for that, it's not just because 'she's a woman, she gets paid less', it's what kind of law, what part of the country, what partnership she's in, and women's exclusion from partnership in the big City firms. But it still means that the 50 per cent female intake going through law school can expect to earn considerably less than the 50 per cent of men.”“Sir Michael Burton, chairman of the Central Arbitration Committee`As chair of the Central Arbitration Committee (CAC), Sir Michael Burton feels it is his and his deputies' duty to mediate with unions and employers, and to play mediator and facilitator for as long as possible. But when one or both sides still refuses to play nicely, “we won't be afraid of taking off our mediator's hat and putting on our judges hat”, he says.`Relaunched on 6 June 2000, the CAC is independent of the Advisory Conciliation and Arbitration Service (Acas) and the Government, and its remit is to step in when neither employer nor union can agree on a collective bargaining unit. Where this situation occurs, the CAC will effectively step in and decide what the bargaining unit should be according to the many tests laid out in the Employment Relations Act 1999. If 50 per cent of employees in that unit are members of a union, then the CAC can simply declare the union to be recognised. But if the CAC still has doubts about majority support, taking into account factors such as “good industrial relations”, it can enforce a ballot.`Once recognition is declared, the union and employer have a period to negotiate setting up units of collective bargaining, which the CAC can help with. If the parties still can't agree once matters have got to this stage, the union can apply to the CAC to impose a method of collective bargaining. This may take the form of a model method recently laid before Parliament by the DTI setting out how meetings should be arranged and what their agendas should be. Alternatively, the CAC can impose its own customised version. If the agreed process is not adhered to, one of the parties can apply to the court to have it carried out by way of specific performance.`Burton says that once the CAC has been called upon by a union to settle disputes on recognition, it will start off with “persuasion, informal meetings and communications of a confidential variety on both sides, in which one is wearing a mediator hat, but if we can't reach agreement we have a hearing and that's when we change from being mediators to judges.”`Called to the bar in 1970, Burton enjoyed a busy general commercial practice including acting for both sides on employment and trade union work. He was made up to silk in 1984 at the age of 37, and then followed the well trodden route of recorder in 1986, head of chambers in 1991 and deputy High Court judge in 1992. On being made a full-time High Court judge in 1998, he was “pleased to shed an extraordinarily hectic life”. Since then he has sat in the Queen's Bench Division, the Chancery Division, the EAT and the Crown Office.“Rita Donaghy, chair of Advisory Conciliation and Arbitration Service`Appointed chair of Acas in October last year, 56-year-old Rita Donaghy comes from the giddy heights of the presidency of the TUC and a solid career in trade unionism. Not a lawyer by training, she has nevertheless played an important role in the legislative changes in the employment arena. “With my TUC hat on I was involved in negotiating with the Government on the actual legislation,” she says. She is a keen advocate of workers' rights and believes that employees still do not have all the rights they should have. But her view is tempered with obvious pragmatism. “I've always taken the view that people need legislation to underpin rights, but it is best not to use it.”`Acas has survived the past 25 years regardless of the political hue of the Government in power, but Donaghy sees the organisation as entering its third age. “When it was first established, Acas was a counterweight to all the industrial strife. Then there was the very quiet period where it kept its head down a bit, and now it's exploding all over the place.”`But the increase in workload has not necessarily meant a matching increase in resources. “The last year, I think, has been really tough. Acas has absorbed a 25 per cent increase in the number of employment tribunal applications. Calls to the helpline went up from half to three quarters of a million. There are huge things happening and looking at the tribunal system and compensation culture, we've got to respond to all that. We've got to make the resources fit the requirements,” she says.`The duty to promote Acas's profile is very important to Donaghy. “Some employers are saying to me that Acas is not necessarily the first place they would come to for pretribunal-type issues,” she says. “They are sorting it out themselves or spending a lot of money on consultants.” Donaghy wants to promote the fact that Acas can provide expert advice at no cost. “But we've got to be careful that we're not seen to be acting as rivals to existing commercial concerns,” she says. “We must promote Acas and try to build a close relationship with the Government. Even if it doesn't come to us officially, it can come to us for professional advice.”“John Monks, general secretary of the Trades Union Congress`After a couple of lean decades in which the might of the unions was seriously depleted, they are experiencing a comeback thanks to the Employment Relations Act 1999. One of the key planks of the legislation was to give increased legal rights to trade unions, whereby unions that have majority support in the workplace can claim union recognition. Majority support means either demonstrating there are more than 50 per cent of members already in a bargaining unit, or winning a yes-vote from 40 per cent of the workforce (or bargaining unit) in a ballot.`The TUC has more than 70 member unions representing nearly seven million employees and campaigns for a fair deal at work and for social justice at home and abroad. Despite his delicate role sitting between policy makers and unions, general secretary John Monks is not afraid of speaking his mind. He thinks it is “absolute rubbish” that employers may simply become meaner with their benefits in the wake of union intervention in order to give themselves bargaining space. “Unions' agendas are not all about pay any more, it's about training and skill, family friendly policies, equal opportunity productivity and working to better standards and quality. It's about information, consultation and working together,” he says. “It's disappointing when company executives have a vision that's clearly a vision of the past.” n`l These profiles appear in full in The Employment Lawyers Association Briefing, published by Sweet & Maxwell