 |
Work, Empowerment and Equality
by
Bob Hepple
Geneva, November 2000 |
 Introduction
WORK, EMPOWERMENT AND EQUALITY
The Debate
References
IILS PUBLIC LECTURE
Introduction
Padmanabha Gopinath
Counsellor to the Director-General of the ILO
Director of the International Institute for Labour Studies
I welcome you all to this Public Lecture, which happens to fall on a significant occasion. It was 40 years ago that the IILS was
started and I will just briefly recall the purposes for which it was established because it is closely linked to the subject of our
discussion today.
The Institute was established, as many of you would know, to create first a research outfit which would support the Organization's
traditional activities for standard setting and technical cooperation and, second, to create an autonomous space within the ILO for
new thinking, free from the pressures of political negotiation and compromise, a space where ILO constituency and staff could meet
informally with policy makers. There was also an important need to open a window of dialogue between the ILO and the academic
community. The major theme which the Institute has examined over the years has been how social institutions could be created
which would promote the fundamental values of equality and social justice, how such institutions could foster economic growth,
and how they influenced the pattern of development. Last year these activities and this theme took on a new meaning, when the
International Labour Conference endorsed an agenda for the ILO for the 21st Century on Decent Work. Such an agenda emphasises
the promotional and outreach role of the Institute, both with ILO constituency and stakeholders and with the public at large. It also
sets before the ILO the intellectual challenge of presenting Decent Work as a development paradigm for the international
community.
The subject of the lecture today, "Work, Empowerment, and Equality" is central to the notion of Decent Work. What is significant
of the notion is that it covers all those who work, regardless of what their work is, regardless of their work status and the existence,
or otherwise, of a formal employment relationship. It therefore proclaims a basic equality of rights for all those in the world of work
and indeed for all those who seek to enter that world of work, regardless of the nature of work - whether they are self employed,
work in the informal economy or in households. Equality and empowerment have traditionally been thought through regulation and
legislation. But globalization and social change now pose new challenges for these values. Let me mention three. What does
equality and empowerment mean in a global economy, where empowerment is a function of communication and organization, and
where equality is increasingly defined in terms of access to technology, to markets, and to human capabilities? What is the most
effective form of regulation in an economy characterised by globalization or in a society which is marked by a technological
reaffirmation of individual identity? Finally, what is the most effective regulation to achieve equality? And what is the relationship
between regulation and empowerment: can they be made mutually supportive?
These are the issues which we will be discussing this evening and I am very glad to welcome Professor Bob Hepple, the Master of
Clare College and professor of Law at the University of Cambridge, to deliver this lecture. He is uniquely qualified to do so as he is
the author of a new report on Equality in the United Kingdom and of several major works of Comparative Law and Comparative
Labour and Discrimination Law. At the conclusion of the lecture there will be an opportunity to pose questions to the speaker.
I have great pleasure in welcoming Professor Hepple and give him the floor.
WORK, EMPOWERMENT AND EQUALITY
Bob Hepple
Professor of Law and Master of Clare College
Cambridge, United Kingdom
It is a great privilege and pleasure to be invited to give this lecture in a series to mark the 40th anniversary of the International
Institute for Labour Studies. The Institute has established itself as the world's leading centre for research and the dissemination of
knowledge in its field. I can testify from my own experience as an ILO expert in various countries, that the Institute's work is
indispensable to the activities of the ILO, and that it provides inspiration and guidance to policy-makers all over the world.
The Institute has launched an ambitious programme "to lay the conceptual and empirical foundations for a paradigm of Decent
Work." As you know, "Decent Work" is the ILO's exciting new vision to promote "opportunities for women and men to obtain
decent and productive work, in conditions of freedom, equity, security and human dignity".
The three themes of this lecture are that
1. equality is at the heart of the notion of Decent Work;
- that national and local action is increasingly moving away from negative duties to avoid discrimination towards positive and
inclusive duties to promote equality; and
- that the best model of regulation is one which involves the empowerment or participation of the disadvantaged groups.
It will be necessary for me first to deconstruct the idea of equality. I shall then explore this idea in the context of other fundamental
rights and explain why positive duties to promote equality are needed. Finally, I shall examine some different regulatory models for
implementing duties to promote equality and how these can be used as vehicles of empowerment.
The concept of equality
The subject of equality is topical across the globe. The ILO's Discrimination (Employment and Occupation) Convention No.111
(1958), a remarkably far-sighted and comprehensive instrument, is one of the most highly ratified of all ILO conventions, and
continues to inspire national legislation and other measures. The ILO Declaration on Fundamental Principles and Rights at Work of
18 June 1998 declares that "the elimination of discrimination in respect of employment and occupation" is an obligation of all
member States, whether or not they have ratified the relevant Conventions.
In the European Union, a comprehensive anti-discrimination directive addressed to the member States, under article 13 of the
European Community Treaty as amended by the Treaty of Amsterdam, was adopted by the Council of Ministers in October 2000.
The European Union Charter of Fundamental Rights, which is expected to be adopted at Biarritz in December, has a separate
chapter devoted to equality. The Council of Europe opened for signature on 4 November a new Protocol No. 12 to the European
Convention on Human Rights, which plugs a gap in that Convention. At present the Convention is breached only when there is
discrimination in the enjoyment of some other Convention right. Because there is no Convention right to employment, for example,
the Convention affords no protection in respect of employment discrimination. The Protocol now provides a free-standing guarantee
against discrimination which is not dependent upon the breach of some other Convention right.
These instruments, and the provisions of national constitutions and legislative measures provide a bewildering range of concepts of
equality. It is, therefore, necessary for me to explain what I mean by "equality" in the context of "Decent Work". This is not for any
semantic or ideological reason, but because in fashioning a Decent Work programme, it is essential to have regard for the
underlying principles from which legal and social concepts of equality derive.
The concept of equality has two basic dimensions: equality as consistency - likes must be treated alike; and substantive or material
equality.(Endnote 1) The first of these is found in all anti-discrimination laws, and also in Article 1(a) of ILO Convention No.111. It embodies
a notion of procedural justice which does not guarantee any particular outcome. So there is no violation of this principle if an
employer treats women and men equally badly, or sexually harasses women and men to the same extent. A claim to equal treatment
in this sense can be satisfied by depriving both persons compared of a particular benefit (levelling down) as well as by conferring
the benefit on them both (levelling up). So in cases under Article 141 (ex 119 ) of the EC Treaty, which follows ILO Convention
No.100 in guaranteeing equal remuneration for women and men doing work of equal value, employers were allowed by the
European Court of Justice to raise the pension age for women to the same as that for men, rather than lowering the men's pension
age.(Endnote 2) The choice of comparators can also be determinative of a claim to equal treatment. For example, a railway company in the
United Kingdom had a policy of granting travel concessions to the married or unmarried partners (of the opposite sex) of
employees. A female employee with a same sex partner claimed that this was unlawful sex discrimination.(Endnote 3) The European Court of
Justice made a comparison with the way in which the same sex partner of a male employee would have been treated, and concluded
that there was no sex discrimination. A comparison with an unmarried heterosexual would have shown a clear breach of the
principle of equal treatment.
These limitations of the principle of formal or procedural equality have led to attempts to develop the concept of substantive or
material equality. Here we can identify three different, but overlapping, approaches. The first is equality of results. Apparently
consistent treatment infringes the goal of substantive equality if the results are unequal. Inequality of results itself can be understood
in three senses. The first focuses on the impact of apparently equal treatment on the individual. The second is concerned with the
results on a group (e.g. women, ethnic groups, people with disabilities etc.), and the third demands an outcome which is equal, for
example equal remuneration for women doing work of equal value with that of men, or equal representation of women and men in
the same grade.
The concept of indirect or adverse impact discrimination is that an apparently neutral practice or criterion has an unjustifiable
adverse impact upon the group to which an individual belongs. The best-known examples are recruitment, promotion or selection
criteria for lay-offs with which it is significantly more difficult for members of a disadvantaged group to comply. It is thus
results-oriented in the first sense, in that the treatment must be detrimental to an individual, but it also involves equality of results in
the second sense. However, the concept of indirect discrimination is not redistributive in the third sense. If there is no exclusionary
practice or criterion, or if no significant disparate impact can be shown, or if there is an objective business or administrative
justification for the practice, then there is no violation. This concept is usually said to have its origins in case law of the 1960s under
Title VII of the US Civil Rights Act. In fact, the foundation was laid in 1958 in Article 1 of ILO Convention No.111 which covers
any "distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment." The
Convention, like the later case law of the US Supreme Court and the European Court of Justice, goes on to provide that "any
distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to
be discrimination."
An approach which is more results-oriented in a redistributive sense is to define equality in terms of "fair" (sometimes referred to as
"full") participation of groups in the workforce, and fair access of groups to education and training, and to other facilities and
services. This aims to overcome the under-representation of disadvantaged groups in the workplace and to ensure their fair
participation in the distribution of benefits. This may involve special measures to overcome disadvantage. These measures are
described in ILO usage as "affirmative action". Professor Faundez, in his useful ILO study, defines this as "treating a sub-class or a
group of people differently in order to improve their chances of obtaining a particular good or to ensure that they obtain a proportion
of certain goods."(Endnote 4) Once again, it was the far-seeing ILO Convention No.111, which in Article 5 was one of the first instruments to
recognise that "special measures or protection or assistance" for disadvantaged groups should not be deemed to be "discrimination".
The term "affirmative action" is, unfortunately, tarnished by negative experiences with its use in some countries. For this reason, the
notion of " employment equity" was coined in Canada, and "fair participation" or "fair access" in Northern Ireland. The Canadian
Employment Equity Act 1995 uses "employment equity" to denote that equality "means more than treating persons in the same way
but requires special measures and the accommodation of differences". The South African Employment Equity Act of 1998 treats
affirmative action as the means towards achieving employment equity. It provides that "affirmative action measures are measures
designed to ensure that suitably qualified people from [disadvantaged] groups have equal employment opportunities and are
equitably represented in all occupational categories and levels in the workforce."
Affirmative action in this sense is used as a tool of social policy in many countries and is endorsed in international human rights
conventions. An example is legislation in force in Northern Ireland since 1989 which aims to secure greater fairness in the
distribution of jobs and opportunities and to reduce the relative segregation of the two communities in that province. A recent report
on the impact of this legislation reveals that it has led to significant reductions in employment segregation, in the
under-representation of the Catholic community overall and of Protestant and Catholic communities in specific areas, as well as
reduction in the unemployment differential between the two communities.(Endnote 5)
A second way of characterising substantive equality is in terms of equality of opportunity. Convention No.111 uses this concept. It
brings to mind "the graphic metaphor of competitors in a race" and "asserts that true equality cannot be achieved if individuals
begin the race from different starting points. An equal opportunities approach therefore aims to equalise the starting points."(Endnote 6)
However, the use of this concept does not make it clear whether the promotion of equality of opportunity is a narrow procedural
obligation, or a broader substantive one. The procedural view involves the removal of barriers or obstacles, such as word-of-mouth
recruitment or non-job-related selection criteria. This opens up more opportunities but "does not guarantee that more women or
[members of ethnic minorities] will in fact be in a position to take advantage of those opportunities."(Endnote 7) A more substantive approach
would require affirmative action to compensate for disadvantages.
A third approach to substantive equality is based on the broad values of the dignity, autonomy and worth of every individual. Such
an approach is to be found in many national constitutions. In some there is emphasis on equality as the sharing of "common
humanity", or "equal worth". Examples are article 23 of the Belgian Constitution which provides that "everyone has the right to
lead a life worthy of human dignity" (and article 2 of the Greek Constitution which speaks of "respect and protection for the value
of the human being" as the primary obligation of the state). In the field of labour law this is reflected in the idea that "labour is not a
commodity". Since its foundation, the work of the ILO has been based on this principle. Labour is "human flesh and blood". It is
not a commodity to be exchanged since a person's working power cannot be separated from their existence as a human being.
Let me give you an illustration of the importance of human dignity as the starting point of our approach to equality, from the
judgment of 28 September 2000 of the South African Constitutional Court in the case of Hoffmann v South African Airways. The
practice of South African Airways (SAA) - like that of many other airlines - was not to offer employment as cabin attendants to any
person whose blood test showed that he or she was HIV positive. The SAA justified this on safety, medical and operational grounds.
In particular they said that persons who are HIV positive may react negatively to yellow fever vaccinations which cabin crew must
have for world-wide duty, that people who are HIV positive are prone to contracting opportunistic diseases, with the consequent risk
of infecting passengers, and that the life expectancy of HIV positive people is too short to warrant the costs of training. Mr.
Hoffmann, who was refused employment on these grounds, challenged the constitutionality of SAA's practice.(Endnote 8) The Constitutional
Court accepted medical evidence that asymptomatic HIV positive persons can perform the work of a cabin attendant competently,
and that any hazards to which an immunocompetent cabin attendant may be exposed can be managed by counselling, monitoring
and vaccination. The risks to passengers were inconsequential. Even immunosuppressed persons are not prone to opportunistic
infections and may be vaccinated against yellow fever as long as their count of "CD4+ lymphocytes" remains above a certain level.
The Constitutional Court held, on the basis of this evidence, that Mr. Hoffmann's right to equality, guaranteed by section 9 of the
South African Constitution, had been violated and they reinstated him in the job of cabin attendant. Discrimination on grounds of
HIV status, and the question of testing in order to determine suitability for employment is now governed by the South African
Employment Equity Act 1998, but the facts arose before that Act came into force and the issue was solely a constitutional one.
Although section 9 mentions a number of grounds of unfair discrimination, this does not include HIV status. The most significant
feature of the judgment of Justice Ngcobo, concurred in by the full Bench, was his reliance on the human dignity argument. He said
that "at the heart of the prohibition of unfair discrimination is the recognition that under our Constitution all human beings,
regardless of their position in society, must be accorded equal dignity. That dignity is impaired when a person is unfairly
discriminated against."(Endnote 9) He added that South Africa's new democratic era was characterised by respect for human dignity for all
human beings. In this era "prejudice and stereotyping have no place".(Endnote 10) The fact that some people who are HIV positive may, under
certain circumstances, be unsuitable for employment as cabin attendants does not justify the exclusion of all people who are living
with HIV. As a Judge of the Indian Supreme Court recently said: "the State cannot be permitted to condemn the victims of HIV
infection, many of whom may be truly unfortunate, to certain economic death" by denying them employment.(Endnote 11)
It must be obvious from my analysis that the three approaches to substantive equality - equality of results, equality of opportunity,
and equality of human dignity - lie at the heart of the notion of Decent Work. This is not only because the ILO's definition
expressly refers to opportunities for women and men, and to conditions of "freedom, equity, security and human dignity," but also
because of the universality of the concept. The idea of ending untenable distinctions between different categories of workers has a
long history in labour law. This is based on the idea that there must be comparable protection of all those who work. The first
European constitution to recognise social rights, that of the Weimar Republic (1919) in art.158 required the state to create a
"uniform labour law", in particular by linking public and private law. This is reflected in several modern constitutions (e.g. Italian
Republic art.35(1): the Republic "protects labour in all its forms and applications").
What is truly innovative in the ILO's definition of Decent Work, as Amartya Sen pointed out in his address to the 1999
International Labour Conference,(Endnote 12) is that it encompasses all kinds of productive work. Unlike classical labour law, it does not
presuppose the existence of a contract of employment or an employment relationship. It is not limited to "dependent" or
"subordinated" labour on which labour legislation has traditionally been focussed. Labour law has tended to legitimise inequalities
between different categories of employed workers, between the employed and self-employed, and between those who work and
those who are unemployed or are cut off from work on grounds of age. The new objective of Decent Work proclaims the basic
equality of all those who work and who seek work. By utilizing the concept of substantive equality we can keep in mind the needs
of the unemployed as well as the employed and self-employed, the aged as well as the young, and those in the informal as well as
the formal sectors.
Equality in the framework of fundamental rights
How does this idea of equality fit into the framework of the rights which are fundamental to a democratic society? The 1998 ILO
Declaration on Fundamental Principles and Rights at Work focuses on freedom of association and the right to collective bargaining,
the elimination of forced and compulsory labour, and the worst forms of child labour, as well as discrimination. Action against
discrimination aims to achieve equality for disadvantaged groups, such as women, ethnic minorities and people with disabilities.
This may be characterised as horizontal equality between workers. This is a relatively modern concern since the Second World War
and the ending of colonialism. The more traditional focus of labour law, and of the ILO, has been with what may be called vertical
equality between the parties to the employment relationship. Hugo Sinzheimer, one of the founders of labour law in Germany,
argued in 1910 that the "special function" of labour law - "the guardian of human beings in an age of unrestrained materialism" -
was to ensure some substantive equality between employer and worker.(Endnote 13) This conception became part of the common law of
nations as embodied in ILO Conventions on subjects such as forced and compulsory labour, child labour, and by support for
collective organization and collective action in defence of the interests of workers. The principle behind such measures has been
described by Paul van der Heijden as "inequality compensation" - the aim is to compensate by social measures for the economic
inequality between employers and workers.(Endnote 14) So equality is embedded in all elements of the ILO's Declaration, and enables us to
see connections between these fundamental rights.
In considering horizontal equality, it is necessary to distinguish the duty to "eliminate discrimination", in a negative sense, from a
broader positive duty to promote equality. Eliminating discrimination, in the sense of avoiding unfavourable actions against
individuals, is a negative concept. It usually depends upon responding to a complaint or assertion of a right by an individual. That
response may be defensive and adversarial, especially when legal proceedings are brought or threatened. This may leave untouched
the processes, attitudes and behaviour within organizations which lead to prejudice and stereotyping, or to practices which
unwittingly have the effect of putting women, ethnic minorities, disabled persons and other groups at a disadvantage. Where
affirmative action is used, this is seen as a negative exception to the non-discrimination principle. It therefore tends to be sporadic,
contested and limited.
By focusing on positive duties to promote equality one can encourage an inclusive, proactive approach. Organizations which have
positive duties are compelled to devise coordinated strategies to improve diversity in the workforce or to pursue equality policies in
the delivery of services to those who are socially excluded. Instead of passive and defensive responses to complaints of
discrimination, organizations are made responsible for reaching stated goals and targets. This will usually involve reasonable
adjustments or "special measures". Equality of opportunity increasingly depends, not simply on avoiding negative discrimination,
but on monitoring, planning, training and improving skills, developing wider social networks and encouraging adaptability. This
does not, however, mean reverse discrimination, which can often be counter-productive.
ILO Convention No.111 anticipated and encouraged the modern emphasis on positive duties. Article 2 requires member States "to
declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of
opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect
thereof." I would prefer the word "equality", rather than "equality of opportunity" which, as I have explained is ambiguous, and is
only one of the senses in which substantive equality should be understood. However, there can be no doubt that as long ago as 1958
the ILO envisaged positive promotion and not simply negative prohibition. Article 5 provides that "special measures" or "special
protection" for certain groups is not discrimination. This leaves ratifying States who wish to do so to use affirmative action
measures. For reasons which I have advanced, I believe that if discrimination is to be eliminated positive measures will frequently
be essential.
There is another reason why positive duties to promote equality and corresponding rights are now necessary. Decent Work was
devised as a model for socially sustainable development. It means productive work which generates an adequate income with
adequate social protection. There is a growing convergence between the objectives in this respect of the ILO and the World Bank.
The latter, in its World Development Report 2000, acknowledges the need for a broad social agenda. Of particular relevance to this
lecture, is the World Bank's conclusion from the experiences of the 1990s that "inequality is back on the agenda".(Endnote 15) The Report
points out the importance of gender, ethnic and racial inequality as a dimension - and a cause - of poverty. Social, economic and
ethnic divisions are "often sources of weak or failed development. In the extreme, vicious cycles of social division and failed
development erupts into internal conflict, as in Bosnia and Herzegovina and Sierra Leone, with devastating consequences for
people".(Endnote 16) The World Bank's "general framework for action" for reducing poverty, like that of the ILO for Decent Work, obviously
requires positive duties on states to grant rights of access to work, health, education, and social security.
An objection to such positive duties which is frequently heard is that social rights cannot be enforced. It is argued that a clear line
exists between civil and political rights, on the one hand, and economic, social and cultural rights on the other.(Endnote 17) The former are
limitations of governmental power (governments must respect the right not to be discriminated against etc.) whilst the latter require
governments to act ( e.g. to provide minimum income, social security, provision of health services and education etc). Civil rights,
can be made legally enforceable, while it is said that social economic rights cannot be. However the creative decisions of the Indian
Supreme Court and, more recently the South African Constitutional Court, show that the line between the two classes of rights can
become blurred and that it is even possible to give legal effect to certain basic social rights.
An example is the recent South African case of Mrs. Grootboom, one of those many thousands unfortunate people who live in
shacks made of cardboard and hessian. The land on which Mrs Grootboom and many other people lived was subject to flooding and
so she and others moved up the hill on to some private land from which they were very rather brutally evicted under a Court order.
They brought the case to Court relying on section 26 of the new democratic South African Constitution which entitles everyone to
the right of access to adequate housing. This right is not absolute because it is subject to the qualification that "the State must take
reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right." The
Constitutional Court decided on 4 October 2000 that the rights in section 26 oblige the State to provide relief for people who have
no access to land, no roof over their heads and who are living in intolerable conditions or crisis situations. The South African
government and the local authorities concerned had argued that they had a housing programme, and were building houses.
However, the Court reached the conclusion that Mrs Grootboom and the other were entitled to this basic protection. They did so on
the basis of the rights in the Constitution which guaranteed human dignity, freedom and equality. In the words of Yacoob Justice:
"if measures, though statistically successful fail to respond to the needs of those most desperate (like the homeless Mrs Grootboom)
they may not pass the test (of reasonableness)."(Endnote 18) This judgment has great significance for the enforcement of other social rights
such as rights to work, to education, to health services and social security. It suggests that the state can be compelled to act
"reasonably" in giving effect to fundamental social rights, within the constraints of available resources and the progressive
realization of these rights. "Reasonableness" or rationality, requires account to be taken of human dignity, where people are in
intolerable or crisis situations.
I conclude from this discussion, that the ILO Declaration and Convention No.111 must be construed broadly, perhaps even revised.
"Eliminating discrimination" should not be understood simply as a negative duty. It should be refocused, so as to emphasize the
responsibility of governments, organizations and individuals to generate change by positive actions.
Empowerment
This brings me finally to the implementation of positive duties. This involves designing an optimal system of regulation to reduce
inequality by promoting fair representation and eliminating exclusion and institutional barriers to full participation.(Endnote 19)
There are several designs. One concentrates on rights and liabilities allowing individuals to bring legal claims for violation of the
right to non-discrimination (sometimes called the American model), another is that of "command and control" by government or an
independent public agency which sets the standards which organizations are required to meet, and enforces them through
investigation and legal proceedings; a third model relies exclusively on voluntary self-regulation, that is organizations meeting
prescribed targets unilaterally without any threat of coercion; a fourth uses enforced self-regulation, applying legal sanctions against
those who fail to comply voluntarily; and finally, economic incentives - such as withholding public contracts or subsidies - may
encourage compliance.
At one extreme in the debates about the relative advantages and disadvantages of these models are those who want to throw in every
kind of policy and legal instrument to tackle inequality - what has been called a "smørgåsbord" approach.(Endnote 20) Everything is on the
table. Here in this context it rests on the mistaken assumptions that coercion is always necessary and that the resources for
enforcement are unlimited. Experience shows that imposing too many bureaucratic requirements on organizations is not only costly.
They are also likely to engender resistance and adversarialism and are politically unacceptable.
At the other extreme are those who advocate an entirely voluntary approach, encouraging governments and employers to follow best
practice without enforceable duties. The trap into which these advocates of "doing good by doing little" fall is to pose one form of
regulation (e.g. voluntarism) against another (enforced self-regulation). The point is that a voluntary approach may work in
influencing the behaviour of some organization (e.g. a leading edge company whose markets are among communities where an
equal opportunities policy would be attractive), but not to others who for economic or social reasons are resistant to change.
This has led to a theory of "responsive regulation", well developed now in the environmental field, but not yet so well developed in
the field of labour legislation. The idea is that regulation needs to be responsive to the different behaviour of the various
organizations subject to regulation. In a recent Independent Review of the Enforcement of UK Anti-Discrimination Legislation
which I co-directed, we developed a model of an enforcement pyramid (see diagram).(Endnote 21) At the base of this pyramid are what you
might call the voluntary means, that is persuasion, information and so on. When this fails we encourage the organization to have a
voluntary plan and when that fails, we move up to investigation by a public body. Eventually the investigation reveals non
compliance, they are ordered to comply by compliance notice, traditionally enforcement sanctions, ultimately perhaps the loss of
contracts. In order to work, there must be gradual escalation and, at the top sufficiently strong sanctions to deter even the most
persistent offender. The idea is that you will rarely use the most severe sanctions, but if they are not there the rest of the pyramid
will itself collapse.
A crucial element in the design of the enforcement pyramid is to identify the potential participants in the regulatory process. In the
field of equality, enforcement has traditionally been viewed as a dialogue between the state (or in some countries an independent
equality commission) and those who are being regulated (employers, service providers etc.) But it leaves out of account the
disadvantaged groups themselves. Modern regulatory theory offers two critical insights in this respect. The first is that private forms
of social control are often more important in changing behaviour than state law enforcement and more can be achieved by
harnessing the enlightened self-interest of employers and service providers than through command and control regulation. There is,
of course, a strong "business" case on efficiency grounds for equality and diversity. The second insight - which is the one I stress in
this lecture - is that the quality of regulation depends crucially on empowerment. By this I mean bringing into the regulatory
process the experience and views of those directly affected. Groups such as employers' organizations and trade unions, community
associations and public interest NGOs, etc., who act as watchdogs, educate and inform others, and help individuals to enforce their
rights. These groups must be given rights to be informed, consulted and engaged in the enforcement process.
It will be seen that our enforcement pyramid involves a tripartite relationship between those who are regulated (business), those
whose interests are affected (interest groups) and an independent commission as the guardian of the public interest.
Equality enforcement pyramid
A strategy of this kind has been introduced in Northern Ireland, as part of the Good Friday Agreement, in respect of a duty on all
public authorities to promote equality of opportunity. Section 75 of the Northern Ireland Act 1998 attempts to "mainstream"
equality, that is to make equality issues central to the whole range of policy debates and implementation. The reactive and negative
approach of anti-discrimination is replaced by proactive, anticipatory and integrative methods. Public authorities must draw up
equality schemes. These must set goals and targets. Progress has to be monitored. Public authorities cannot ignore or sideline
equality issues.
Central to this new positive duty in Northern Ireland is the empowerment of the local communities themselves. The door has been
opened for the people who are affected to get involved in the decision-making process, through rights to information and
consultation. A similar positive duty on public authorities has now been enacted in the rest of the UK in respect of racial equality,
and the UK Government has announced an intention to do the same for gender equality and for disability.
Does this model of empowerment in the enforcement of a positive duty to equality have any relevance to the global Decent Work
agenda? I suggest that it does. The World Bank has proposed as an essential feature of sustainable development the notion that state
institutions must be made more accountable and responsive to poor people in political processes and in local decision making. If the
barriers that result from distinctions based on gender, ethnicity, race, social status, disability and other disadvantages, are to be
removed legal and political processes need to be reformed in this way.
After 42 years, ILO Convention No.111 still provides a basis for positive policies to promote equality and for the participation of
"other appropriate bodies" as well as employers' and workers' organization in this process (Article 3). This, and the accompanying
recommendation, could now usefully be revised to provide a clearer focus on equality and empowerment. The Decent Work
Programme provides an inspiring framework for fulfilling these objectives.
The Debate
Padmanabha Gopinath - In your analysis and disarticulation , if I may use that term, of the concept of equality between procedural
and substantive equality, I think you have pointed to two new horizons for the ILO in its pursuit of Decent Work. The move from
procedural to substantive equality involves not only the removal of barriers in the negative sense, but also positive measures to
promote equality. This brings in a whole host of ancillary measures, such as networks, skills, adaptability - to quote some of the
ones you mentioned - and including a new accountability of the state. Of the two new horizons you pointed to, the first is the fact
that we have now to find ways and means by which the notions of rights and equality can be built into the development consensus.
And you refer to the increasing convergence of thinking between the Bretton Woods institutions and the ILO in this regard. That of
course is a subject for another analysis and another debate, but you have taken us to the door of that issue. The second area which
we are required to examine is the whole question of how we implement rights and how we promote equality. The notion of
responsive regulation, which you have outlined sets out a new and exciting role for tripartism and tripartite procedures in regulation
and in the implementation of rights. Thank you very much for sharing these insights, but also for pointing signposts for the future.
The floor is now open for questions or comments.
Question - I knew we could rely on the Professor for a masterful summary of a well known Convention but also the way he could
link to so many issues that are current in the ILO at the very moment - obviously the Decent Work agenda, but also other issues
such as voluntary codes or the role of the financial institutions. What interests me in particular is the last section of your lecture,
where you were talking about the implementation problems. One of our ILO teams in Africa where I've been working, was faced
with new affirmative action legislation in Namibia and South Africa. More and more countries are turning to us asking for
legislative advice as they accept that there needs to be a regulatory framework, for instance in taking proactive affirmative action for
employment. This occurs in spite of some employer resistances - particularly in Namibia there was strong lobbying for voluntary
affirmative action. But even where governments bites the bullet and go that way, it was extremely hard, once agreed on a policy, to
define the structure and the procedures. The hard knot always came in at the implementation stage. We started to do some training
of labour courts in Southern Africa, and they always asked for specific training on affirmative action, even people from countries
that don't have it in their labour law. This idea of responsive regulation intrigues me, and I was wondering if you could give us an
example of one country that's actually going down that route, now.
Prof. Hepple - If I may just be permitted to say, the report which I co-authored not only suggests a new framework for the positives
duties. It also suggests that when we think about employment equity - that is private sector employers largely, but all having certain
obligations, we must brake away from this idea we are so fixed with, that the state will tell you what to do; the state will regulate
and you will respond. The way we have to structure anything like positive duties, employment equity, is to put the responsibility on
the organizations themselves. What we are talking about is generating change. As part of our study, we undertook case studies of
employers in Britain, Northern Ireland and the United States, to have a comparison, and we found that, among the leading and large
and medium employers, their practise is already to link all this equality issues together, to take responsibility for devising plans,
monitoring them and so on. Weaknesses, as you say, sometimes comes with the implementation, but you have to have checks and
balances. You have to have other bodies, the interests groups in particular, who will put the on pressure. State agencies will also
come in, but they should come in more as a last resort. The tendency has been towards a bureaucratic requirements: "you must have
a plan; you must get the approval of the plan from some government agency; and the government agency will enforce it." Some of
the employment equity plans that you mentioned have that weakness, They do not work because the state agencies just have piles of
paper coming in from employers, which is never looked at. That is why you have to put this back to civil society, but with the state
agency in the background. This is the importance of the sanctions at the apex of the pyramid. You have to know that if you don't
comply the sanctions will be costly. To resolve the problem of non-compliance, which has always been the weakness of labour
legislation, we have to rethink the nature of regulation. We have to turn to this idea of responsive regulation, has the virtue of
putting the onus back to civil society but with this will not work unless the ultimate sanctions are effective and deterrent.
Q. - Thank you for your very enlightening and inspiring presentation. You mentioned the new developments in World Bank
thinking. My concern is that since the 1960s we have heard many times about community development, participatory approaches,
and so on. There were discussions on poverty at the World Bank for many, many years, but still we are where we were, and that's
rather preoccupying. Another comment concerns state obligations to enforce social rights. I wonder if there is a way to use that in
order to maintain the European social model, which has quite difficult times these days, for instance when it tries to avoid exclusion
in social protection. Today, that is under attack, more than basic rights for decent lives. Various parts of social protection schemes
are under threat and more and more people are excluded as a result of the attacks on the welfare state. This is a major concern. Your
idea about the role of civil society in providing remedies is very important. My last point relates to the future of labour law. How it
could be adapted to the situation described in the very popular Rifkin's latest book on Network Society? In it, he argues on
"commodification" of work, culture and relations between human beings, because of the new "access" society, from which many
people will be excluded if they don't have the qualifications and the means to access the new communication networks. What kind
of regulations or arrangements could be made to guarantee certain basic rights to decent and dignified life?
A. - I won't deal with your first point, because I basically agree with it. As concerns the role of civil society in the development of
enforceable social rights, it will be through the actions of non governmental organizations that these rights can be enforced. Even
though the state cannot be compelled to follow a particular political programme, a democratic government can be persuaded to
decide its priorities in ways that are responsive to popular opinion. But within those programmes we must insist on the values of
human dignity, equality for all people: the Decent Work Programme upholds these values because it is inclusionary and
comprehensive. No state can be allowed to ignore the needs of the most disadvantaged people who are living in the most intolerable
conditions, the so called excluded. There is a difficult line to draw between the role of legal enforcement and the political process.
Without the empowerment of civil society, legal obligations will be unenforced. In response to your third point, you are right to
point out that the new "excluded" class are those who do not have access to the network. The right of access to the new technology
is an essential element of the empowerment of which I am speaking.
Geneva, November 2000
REFERENCES
Barnard,C. and Hepple B. (2000), "Substantive Equality", Vol. 59 Cambridge Law Journal.
Faundez, J (1994), Affirmative Action: International Perspectives (Geneva,ILO).
Fredman, S. (1999), A Critical Review of the Concept of Equality in UK Anti-Discrimination Law, Independent Review of the
Enforcement of UK Anti-Discrimination Legislation, Working Paper No. 3 (Centre for Public Law, University of Cambridge).
Gunningham, N. and Sinclair (1998), "Designing Environmental Policy" in Gunningham et al., Smart Regulation-Designing
Environmental Policy (Oxford, Clarendon Press).
Hepple, B. (1995), "Social Values and European Law", vol. 48-II Current Legal Problems 39-61.
Hepple, B.,Coussey M. and Choudhury T. (2000), Equality: a new Framework. Report of the Independent Review of the
Enforcement of UK Anti-Discrimination Legislation (Oxford, Hart Publishing).
Sen. A. (2000), "Work and Rights", Vol. 139 International Labour Review 119-128.
Sinzheimer, H. (1910), "Die Fortenwicklung des Arbeitsrechts und die Aufgabe der Rechtslehre", Vol. 20 Soziale Praxis, p. 1237.
Van Der Heijden (1994), "Post-industrial labour law in the Netherlands" in Labour Law in the Post Industrial Era (Wedderburn et
al.) (Aldershot, Dartmouth Publishing Co).
World Bank (2000), World Development Report 2000 (Oxford, Oxford University Press).
Endnote 1:
These ideas are elaborated in more detail in Hepple, Coussey and Choudhury (2000, p.27-35), Barnard and Hepple (
2000), and Fredman (1999).
Endnote 2:
Case C-408/92, Smith v Avdel [1994] European Court Reports I-4435.
Endnote 3:
Case C-249/96 Grant v South West Trains [1998] European Court Reports I-621.
Endnote 4:
Faundez (1993), p. 3.
Endnote 5:
House of Commons Northern Ireland Affairs Committee, 1998, paras. 48 et seq.
Endnote 6:
Fredman(1999), para. 3.12.
Endnote 7:
Fredman( 1999), para. 3.13.
Endnote 8:
SAA is an organ of the state, not a private employer.
Endnote 9:
Hoffmann v South African Airways Case CCT/17/00, Judgment 28 September 2000, para.27.
Endnote 10:
Ibid., para. 37.
Endnote 11:
MX of Bombay Indian Inhabitant v M/s ZY and another, AIR 1997 (Bombay) 406 at 431 (Tipnis J).
Endnote 12:
Sen,(2000),pp. 119-128.
Endnote 13:
Sinzheimer (1910).
Endnote 14:
Van der Heijden (1994) pp.135-136.
Endnote 15:
World Bank (2000), p.33.
Endnote 16:
Loc. cit.
Endnote 17:
Hepple (1995).
Endnote 18:
Government of the Republic of South Africa and others v Grootboom, Case CCT 11/00, Judgment 4 October 2000,
para. 44.
Endnote 19:
This draws extensively on Hepple, Coussey, Choudhury (2000).
Endnote 20:
Gunnignham and Sinclair (1998), pp.432-433.
Endnote 21:
Hepple (2000) pp.56-59.
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