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The Equality Act 2010: Main Concepts

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The Equality Act 2010: Main Concepts 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 toCommence 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 gender pay gap stood at 12.6%, disa- bledPaper people indentified were 2½persisting times moreequality 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 discrimination 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. tended,The old thedefinition 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 'caste'), reli- ment as against a "but for" proximity test.13 gion or belief, sex, and sexual orientation.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 EUis 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 todual 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 andhumiliating is broader or thanoffensive hitherto. environment "Relevant to" willis 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 sexual harassment 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 undercan show the thatAct, it wheretook "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.
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