Traditionally, the United Kingdom hasn’t been particularly receptive to the imposition of equal treatment legislation, with the first major steps taken by Parliament being the Trade Boards Act 1909 and the Sex Disqualification (Removal) Act 1919. The former Act created provincial boards that set a local minimum wage whereas the latter Act allowed for the first time the participation of women in particular professions and the Civil Service, among other areas. The passing of both of these Acts was vigorously opposed at the time by Trade Unions on the grounds that women ‘should not have to engage in waged work’, that increases in women’s pay would diminish their value to potential employers, and that such measures would damage male employment rates. The Trades Boards Act also met with particular opposition from the judiciary, with the House of Lords opposing the principle of equal pay in Roberts v Hopwood on the grounds that it would introduce “eccentric principles of socialist philanthropy”.
The approach taken prior to the 1960’s is aptly (although obviously not completely) summarised by Sir Otto Kahn-Freud’s legal theory of “collective laissez-faire” – the idea that government should not intervene in the labour market but that collective bargaining was more efficient and that unions and employers were best capable of adapting to changing circumstances in the labour market. At a basic level “collective laissez-faire” works – employers and unions at the coal face (sometimes literally) are clearly intuitively better able to adapt to changing demands and conditions and the government granting positive rights through legislation was (and is) potentially clumsy. However, there were certain problems inherent within Kahn-Freud’s theory. Firstly, collective bargaining often ostracised the employees it was theorised to protect – not all workers were members of Trade Unions and certain groups were under-represented within Trade Unions (for example only 27% of female workers were members of Trade Unions in 1951 as compared to 56% of male workers). This meant that Trade Unions were captured by certain sectional interests that saw advantages in excluding other groups of workers from participating in collective bargaining and implemented agreements with employers that effectively discriminated against excluded workers. Secondly, governments were becoming increasingly interventionist in both social and economic policy and wanted to manage these areas more effectively. Hence, positive action was deemed to be required rather than a blanket policy of non-intervention. Thirdly, the number of strikes that occurred in the 1960’s was crippling both business and the government – between 1964 and 66 190 working days per 1000 employees were lost as a result of strikes. Government action was therefore deemed necessary to remedy these particular problems.
In the 1960’s there therefore originated the first wave of consideration and implementation of equality legislation. The first legislation to be introduced was the Race Relations Act 1965, widely seen as a reaction to the influx of immigrants from the ‘new commonwealth’. Although the 1965 Act didn’t provide employment protection the Race Relations Act 1968 did – albeit on a very limited and complex scale. However, a further stride was taken in 1970 with the passing of the Equality Act. Although this was fairly limited (particularly with reference to the stronger wording of ILO Convention 100 on equal remuneration) it was nevertheless a step in the right direction and when it came into force in 1970 it did so in tandem with the Sexual Discrimination Act 1975 (“SDA 1975”). The SDA 1975 contained for the first time references to direct and indirect discrimination – themselves concepts that had been borrowed from the US Civil Rights Act of 1965. In 1975 individual employees also received the novel right to have recourse to Employment Tribunals for workplace disputes. This was a novel step as prior to this date individuals had to apply to the Secretary of State, who would then pass their matter on to the relevant arbitrator. The Disability Discrimination Act 1995 can also be seen as the child of US statutes, with the Rehabilitation Act 1973 and Americans with Disabilities Act 1990 contributing significantly to its structure and content.
European Community legislation has also had a significant impact on UK equality law, although at a later date than might have been expected. The SDA 1975 was drafted without reference to the Equality Directive that emerged a year later and it was only after Defrenne v Sabena (No 2) in 1976 that the full implications of Article 119 of the Treaty of the European Community were realised. Defrenne held that the EC Treaty was of both horizontal and vertical effect and therefore the individual rights granted under the EC Treaty could be enforced against both governments and individuals. Further, it stated that Article 141 EC, concerning equal pay, was to be directly effective in national law. Post-Defrenne the first significant effects of EC law were felt in 2000 with the passing of the Equality Framework Directive and the European Race Directive. This resulted in the various Employment Equality Regulations of 2003. The Equality Act 2006 was not a product of European law but was first mooted in the early 1990’s by the Commission for Social Justice, with the Commission’s recommendations expanded upon by the Independent Review of the Enforcement of UK Anti-Discrimination Legislation in 2000. The Independent Review recommended that a single Equality Act be introduced to unify and harmonize UK discrimination and equality law. The Equality Act of 2006 moved towards implementing this goal (partly by agglomerating the previous disparate equality commissions into the unified Equality and Human Rights Commission in 2007) but didn’t fully address the inconsistencies rife within the separate pieces of equality and discrimination legislation. Further legislation was therefore deemed necessary and after a further Independent Review, Equalities Review, Discrimination Law Review, Green Paper and White Paper the Equality Bill 2010 received its first reading in the House of Commons in April 2009 and received Royal Assent nearly a calendar year later in April 2010.This resulted in the now-familiar Equality Act 2010.