25

The Equality Act 2010: Main Concepts

Sue Ashtiany1

Well it happened. In the last days of the UK legislation to address social disadvantage Labour administration in April 2010, Parlia- associated with socio-economic inequality.4 ment managed to complete the passage of So the Act was intended not only to restate, the Equality Act and get it onto the statute clarify and harmonise the law, but also to book. This doesn't necessarily mean that the provide more powers and responsibilities whole Act will actually come into force: the towards greater equality. new Coalition Government has hinted that it doesn't like some aspects, such as compul- The Act is big: 218 Sections and 28 Schedules. sory reporting of gender pay in companies. But it does look as though most of it will be in key concepts which it then applies across the force by October 2010 or April 2011. wholeIt creates piece. a unified Many frameworkof the 28 Schedules based around con- tain important substantial provisions deal- The background for this immense piece of legislation was the government White Paper is a 215 page Guidance Booklet which is in- in 2008, "Framework for a fairer future".2 The tendeding with to specificassist users issues. of the In Act addition, in navigating there paper set out the Labour Government's belief their way through it. The Guidance does not that equality was "necessary" for individu- - als, society and the economy. The aim was to ment Order has given powers to the Equality declutter the law bringing together 9 major andhave Human statutory Rights force. Commission The first to Commence introduce pieces of legislation3 and around 100 statu- statutory Codes of Practice under the Act tory instruments and more than 2,500 pages which do not have the force of law but will be of guidance and codes of practice. The aim taken into account in tribunals and courts for was also to strengthen the law. The White determining whether there has been compli- ance. The stood at 12.6%, disa- bledPaper people indentified were 2½persisting times more equality likely gaps. to One of the most interesting and potentially be out of work, people from minority ethnic wide ranging reforms is the new public law duty to have due regard to socio-economic work than their “white” counterparts, 62% disadvantage when making strategic deci- ofcommunities people over were 50 felt 15.5% discriminated less likely againstto find sions about how to exercise public func- in the job market and 60% of lesbian and gay tions.5 This duty only applies to core govern- school children experienced homophobic ment and administrative bodies and there is bullying: we needed to step up progress to some doubt as to whether it will be brought meet equality goals. The "New Opportunities" into force by the new Government as the White Paper published in January 2009 com- Conservatives do not support it. mitted the then Government to considering

The Equal Rights Review, Vol. Five (2010) 26

The Act establishes key concepts which are There are a number of categories of prohib- applied uniformly across state, commercial ited conduct. Direct is now and civil society bodies. Apart from some ex- less favourable treatment because of a PC.11 ceptions for national security and some com- “on grounds of” a pletely private spaces, nothing is excluded in PC.12 Although no substantive change is in- principle from the ambit of the Equality Act. Thetended, old the definition two concepts was are not necessarily There are eight "characteristics" which are contiguous, and it could be argued that a “be- "protected" (PCs): age, disability, gender re- cause of” test supports the line of authorities assignment, marriage and civil partnership, that are focussed on the reason for the treat- race (there is power to include ''), reli- ment as against a "but for" proximity test.13 gion or belief, sex, and .6 Equality legislation is principally binary, so The Act also protects from discrimination that preferential treatment of one sex, or because of pregnancy and maternity, but one religion, etc. is outlawed except in very narrow circumstances. However there is no from the PCs as the protection derives from a prohibition on more favourable treatment separatethis special legal category basis in EU is law. treated So for differently example of the disabled as against those who are not; there is protection for breastfeeding mothers - in public7 - cause of age is permitted where it is a pro- ing pregnant women and those on maternity portionateand justification means of ofdirect achieving discrimination a legitimate be 14 leave more, and favourably a specific thanprovision men thatis permit treat- aim ("PROMALA"). "Associative discrimina- ted.8 But indirect discrimination protection tion" protection is now extended to all PCs. does not apply.9 So if A experiences discrimination not be- cause of their own status but because of the In addition, the Act protects against dis- - crimination because of "dual characteristics" ity to them, A now has a claim even if he/she doesPC of not someone have any of sufficientlyclaim based close on their proxim own where neither PC alone has led to discrimi- status. nation.10 So an Asian woman who is unable to show that she has been discriminated The Act also sharpens and arguably extends against either as a woman or as an Asian, the indirect discrimination provisions where - the application of a provision, criterion or ination because of being both a woman and practice has or would have a detrimental ef- Asian.may be Thisable to dual show characteristic that she suffers discrimina discrim- and they are wider in scope because they ap- for "minorities within minorities" to bring fect. They specifically include disability cases tion is specifically intended to make it easier ply even in cases of anticipatory discrimina- tion, where the detriment has not yet been into force -- it has caused some unease about felt by the complainant. The PROMALA de- burdenclaims. Twoof litigation. thoughts: Second, first, it if may it does, not comethere fence is replicated as before.15 is a real and perhaps unforeseen litigation consequence. Many people who have one An important conceptual change is in the protected characteristic also have another provisions for harassment and victimisation and surely it would be almost irresponsible which are in separate sections outside the of a legal adviser supporting the best interest - of his/her client not to claim dual discrimi- ther requires a comparator, whether actual nation in all such cases? ordefinition hypothetical. of "discrimination", because nei

The Equal Rights Review, Vol. Five (2010) 27

Harassment provisions are strengthened that corporate entities cannot claim victimi- and broadened. Under the Act any unwanted sation. conduct that is "relevant to" a PC and has At sections 108-112 there are a set of impor- creating an intimidating, hostile, degrading, - the purpose or effect of violating dignity or lary discrimination provisions. These also be unlawful.16 tant and somewhat new definitions of ancil humiliatingand is broader or than offensive hitherto. environment"Relevant to" is will than one alleged discriminator. Section 108 potentially very The broad. test is not person-specific coversdeal with relationships specific situations that have involving ended. It more pro- vides protection from unlawful discrimina- As before, harassment also includes sex- tion, harassment and victimisation arising ual harassment, i.e. "conduct of a sexual out of or in connection with a previous asso- nature"17, and also either ciation, such as employment. So this means or conduct "related to" sex or gender reas- that without limitation in time, an individual signment which occurs as a result of rejec- should be protected from retaliatory action tion of or submission to sexual conduct.18 In that is closely connected with the previous relationship. In addition, the requirement to referred to, all of the following must be taken make reasonable adjustments for the disa- intodeciding account: whether the conduct has the effect bled will continue after the end of the rela- tionship if the substantial disadvantage con- a) The perception of the complainant; tinues and the relationship is treated as still b) The other circumstances of the case; existing.21 c) Whether it is reasonable for the conduct 19 Section 109 replaces similar provisions in previous legislation. It is intended to make This to test have is arguably that effect. more robust than under employers and principals legally liable for the current laws. acts of those over whom they have control.

The victimisation provisions have changed there is strict liability, the employer or prin- completely. Victimisation occurs where the cipalOther has than a defence offences if it canunder show the that Act, it took where "all reasonable steps". for doing something in connection with the Actcomplainant (a "protected suffers act"). retaliatory The new provisions detriment Section 110 is new. It makes the employee no longer require the complainant to show (or agent) who does something unlawful that they have been treated "less favourably" under the Act personally liable as well as the than someone who has not done a protected employer/principal unless he/she can show act. Instead they now provide that victimisa- that s/he reasonably acted in reliance on a tion occurs where A subjects B to a detriment statement that the act in question was not because B does a protected act or A believes that B has done or may do a protected act.20 "knowingly or recklessly" making the state- - a contravention. There is a new offence of pothetical comparator. Protected acts are de- exceeding level 5 of the standard scale (cur- So there is no need to find an actual or hy rentlyment inGBP question, 5000).22 which attracts a fine not by reference to the Act; and it is made clear fined broadly to include any action under or

The Equal Rights Review, Vol. Five (2010) 28

Under Section 111 it is unlawful for A to ed to take a guide dog into a restaurant, the cause, instruct or directly or indirectly in- fact that the guide dog was closely associated duce B to do something unlawful towards C with the blindness was irrelevant: the ques- provided that A is in a position to commit an tion was how the restaurant treated other unlawful act under the Act: both B and C can people who just wanted to take their dogs in complain. with them.

Knowingly helping someone else to contra- Finally, the Act prohibits pre-employment vene the Act is itself unlawful under Section health questions unless they are to assist the 112. There is a defence of reasonable reliance selection process or in respect of an intrin- on a statement by the other person, and an sic element of the post or for diversity man- agement.26 And the duty to make reasonable or recklessly. adjustments is overhauled very thoroughly offence if the statement is made knowingly All these ancillary provisions apply in all sit- There are now three requirements: uations and are not limited to the world of to make it both clearer and more effective. work. Together with the primary provisions ▪ where a provision, criterion or prac- they arguably provide a very comprehensive tice puts a disabled person at a substantial framework of protection. disadvantage, reasonable steps have to be taken to avoid the disadvantage; The Act makes big changes on disability pro- tection. First, in addition to protection from ▪ where a physical feature (widely de- direct discrimination, the Act now provides for protection from indirect disability dis- disadvantage, reasonable steps have to be crimination.23 In addition, the Act sets out takenfined) toputs avoid a disabled the disadvantage; person at a substantial to make it easier for a disabled person to show unlawful discrimination in other cir- ▪ where a requirement would, but for cumstances. So there is a new provision that the provision of an auxiliary aid, put a disa- unfavourable treatment of a disabled person bled person at a substantial disadvantage, which is not a PROMALA and is "because of reasonable steps have to be taken to provide something arising in consequence of B's disa- the auxiliary aid.27 bility" is unlawful discrimination. The section does not apply if A can show that he/she did There are new provisions for not know and could not have been "expected and new and revised exceptions.28 The gen- to know" that B had the disability.24 This is eral positive action provision applies to all intended to remove the problems created by situations in and out of the workplace. If A the 2008 decision of the House of Lords in reasonably thinks that: the case of Malcolm v Lewisham.25 The court found that to determine whether a disabled ▪ - person had been discriminated against for a vantage connected to the characteristic; "disability-related" reason, you had to com- people who share a PC suffer a disad pare him/her with someone to whom the ▪ people who share a PC have needs same reason applied but not related to dis- ability. So for example if a blind person want- who do not share it; or that are different from the needs of persons

The Equal Rights Review, Vol. Five (2010) 29

▪ participation in an activity by persons who share a PC is disproportionately low, exceptions. Some exceptions in respect of then that person or body can take any action certainThere are PCs specific are permitted religion or for religion-related employment which is not direct/indirect discrimination "for the purposes of" an organised religion.30 and is a proportionate means of achieving They must engage the compliance principle, the aim of: i.e. so as to comply with the doctrines of the ◦ enabling or encouraging people who share the PC to overcome or minimise that disadvantage; religion and also the non-conflict principle, religion'si.e. so as followers. not to conflict So for with example strongly a church held ◦ meeting those needs; or canconvictions specify that of a it significantwill not have number a priest of who the is female or one who has re-married while ◦ enabling or encouraging persons who share the PC to participate in that activ- ity. Inhis addition, first wife there was still is a alive.further religious belief This is permissive only, save that there is also OQ which "has regard" to the "ethos" of a a positive duty for public bodies to eliminate particular organisation. In these cases, hav- disadvantage and promote equality. There- ing a particular religious belief can be an OQ fore the existence of the power coupled with provided that the application of the require- the duty may lead to more active changes ment is a PROMALA and the person to whom - it is applied does not have the belief or is rea- sion permitting the recruitment or promo- sonably seen as not having it.31 than hitherto. There is also a specific provi- tions where people with that PC are disad- Apart from these cases, the only other excep- tion of an equally qualified person in situa tions relate to age discrimination.32 These provided there is no general policy to favour range from permitting a default retirement suchvantaged people. or are not participating sufficiently, age, to age-related provisions in pensions schemes and age-related national minima in Finally, regarding the exceptions, there is a wages. general exception for an occupational re- quirement (OQ) the application of which is a The Equality Act 2010 is an accomplished PROMALA, where the person to whom it is and potentially far-reaching reform of equal- applied either does not meet it or there are ity law in Britain. We wait to see how much of the Act is actually brought into force in the s/he does not meet it. This applies across all coming months. thereasonable PCs.29 grounds for being satisfied that

1 Industrial Law Society; former Equal Opportunities Commissioner. Trustee of The Equal Rights Trust; Government Ambassador for Diversity in Public Office; Vice President of the 2 Presented in June 2008 Cm 7431. 3 , Sex Discrimination Act 1975, , Disability Discrimination Act

The Equal Rights Review, Vol. Five (2010) 30

1995, Employment Equality (Religion or Belief) Regulations 2003, Employment Equality (Sexual Orientation) Regulations 2003, Employment Equality (Age) Regulations 2006, Part 2 of the , and Equality Act (Sexual Orientation) Regulations 2007. 4 New Opportunities: Fair Chances for the Future, by Command of Her Majesty, January 2009. Presented to UK Parliament by the Minister for the 5 Section 1 of the Equality Act 2010. 6 Section 4. 7 Section 13 (6) (a). 8 Section 18. 9 Section 19 (3). 10 Section 14. 11 Section 13. 12 See, for example, section 1 of the Sex Discrimination Act 1975 or section 1 of the Race Relations Act 1976. 13 See, for example, the decision of the House of Lords in Shamoon v Constabulary [2003] UKHL 11. 14 Section 13 (2) of the Equality Act 2010. 15 Section 19. 16 Section 26 (1). 17 Section 26 (2). 18 Section 26 (3). 19 Section 26 (4). 20 Section 27. 21 Section 108 (4). 22 Sections 110 (4) and 110 (5). 23 Section 19. 24 Section 15. 25 Malcolm v Lewisham [2008] UKHL 43. The House of Lords was the UK's highest court which has been renamed the Supreme Court since December 2009. 26 Section 60. 27 Section 20. 28 See sections 158 and 159. 29 See Schedule 9, part 1. 30 See Schedule 3, part 7, sub-schedule 29. 31 Schedule 9, part 1, sub-schedule 3. 32 See, for example, section 197.

The Equal Rights Review, Vol. Five (2010)