The Equality Act 2010

1. The Equality Act 2010 Laura Prince

2. Timetable • Enacted 8 April 2010. • The Equality Act 2010 (Commencement No.4, Savings, Consequential, Transitional, Transitory and Incidental Provision and Revocation) Order 2010 brings the majority of the provisions in the Equality Act into force on 1 October 2010 • The socio-economic inequality duty on public authorities (S.1), dual discrimination i.e. claims combining two protected characteristics (S.14), the requirement on private sector employers to publish gender pay gap information (S.78), positive action in recruitment and promotion (S.159), and the single public sector equality duty (Ss.149-157) have not been included.

3. Aims

4. The Protected Characteristics • Age (s.5) • Disability (s.6 and Schedule 1) • Gender reassignment (s.7) • Marriage and civil partnerships (s.8) • Pregnancy and maternity (s.17 and 18) • Race (s.9) • Religion or belief (s.10) • Sex (s.11) • Sexual orientation (s.12)

5. Age, section 5 • “(1) In relation to the protected characteristic of age – (a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular age group; (b) a reference to persons who share a protected characteristic is a reference to persons of the same age group (2) A reference to an age group is reference to a group of persons defined by reference to age, whether by reference to a particular age or to a range of ages. • Children are excluded from much of the protection afforded by the Act (s.28(1)(a)).

6. Disability, section 6 • Similar definition to that under the Disability Discrimination Act 1995:- “A person (P) has a disability if- (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities” • Keeps requirement for long-term effect (if it has lasted, or is likely to last at least 12 months) (Schedule 1, paragraph 2(1)) • Does not replicate the list of eight capacities (e.g. Mobility or speech, hearing or eyesight) – According to the explanatory note this should make it easier for some people to demonstrate that they meet the definition of a disabled person.

7. Gender Reassignment • Gender Reassignment – the new definition does not require that the process of reassigning one’s sex is undertaken under medical supervision as a condition for protection • No distinction made between those with, and those without a gender recognition certificate (under the Gender Recognition Act 2004). • Exemptions in the Equality Act affecting discrimination against transsexual people are arguably not prescriptive enough having regard to the Gender Recognition Act. • No explicit acknowledgment of the legal effect of a gender recognition certificate which may prove problematic.

8. Race/ Religion or Belief • Race defined inclusively:- • “Race includes- (a) colour; (b) nationality; (c) ethnic or national origins” • A racial group may be defined by more than one “racial characteristic” – e.g. “black Britons”. • Therefore the provisions address some forms of intersectional discrimination. • Power to include “Caste” • Religion and Belief • Religion means any religion and a reference to religion includes a reference to a lack of religion • Belief means any “religious or philosophical belief and a reference to belief includes a reference to a lack of belief” • The 2003 regulations contained a definition which was more limiting “any religion, religious belief, or similar philosophical belief”. Whether the wider definition will embrace wider political and social belief systems has yet to be tested.

9. Dual Discrimination • Equality Bill: Assessing the impact of a Multiple Discrimination Provision, identifies 3 forms of multiple discrimination, the one which wasn’t covered by the previous legislation and is now covered is the third:- • “Where the discrimination involves more than one protected characteristic and it is the unique combination of characteristics that results in discrimination in such a way that they are completely inseparable” • E.g. Black woman treated less favourably because she is a black woman – different to way a black man would be treated or a white woman (Bahl v Law Society). • Only dual discrimination covered, not multiple discrimination – hard to see how this is justified. • Remains to be seen if the new coalition government will bring this provision into force.

10. Prohibited Conduct (1) • Direct Discrimination • wording changed from “grounds of” to “because”; the explanatory note says this is not intended to have a different meaning. • Less favourable treatment because of the victim’s association with someone who has that characteristic is covered • Duty to make Reasonable adjustments • Only applies to disability discrimination • Difficult to reconcile with Coleman v Attridge Law • Disability related Discrimination • Reversing the effect of the House of Lords decision in Lewisham v Malcolm.

11. Prohibited Conduct 2 • Indirect Discrimination • First real harmonising provision, now applies to disability discrimination • Harassment • General harmonising provision • Victimisation • Largely reflects existing protection • Provisions now limited to individual victims (s.27(4))

12. Pay Secrecy • Section 78 of the Act confers a regulation making power on Ministers and regulations may require employers to publish information relating to the pay of employees for the purpose of showing whether by reference to factors of such description as is prescribed there are difference in the pay of male and female employees. • Only apply to private sector employers with 250 employees or more • Outgoing government did not intend to enact them before 2013 – coalition government may never bring them in • Inadequate in any event – long way from the equal pay audits which campaigners sought.

13. Positive Action (s.159) • Can treat a person (A) more favourably in connection with recruitment or promotion than another person (B) because A has the protected characteristic and B does not. • This only applies if:- • A is as qualified as B to be recruited or promoted • P does not have a policy of treating persons who share the protected characteristic more favourably in connection with recruitment or promotion than persons who do not share it, and • Taking the action in question is a proportionate means of achieving the aim referred to in subsection 2) (i.e. Overcoming or minimising disadvantage).