by Charles O'Mahony
Many provisions of the Equality Act 2010 come into force today (1 October 2010). The Act received Royal assent on 8 April 2010 following the completion of its parliamentary process on 6 April under the Labour Government. Harriet Harman the then Leader of the House of Commons first announced the Equality Bill on 26 June 2008. A detailed timeline of the Act is available here. The Equality Act 2010 can be downloaded here and the Equality and Human Rights Commission have produced aides (including codes of practice) to assist in understanding the Act, which are available here. The Act was one of the last pieces of legislation to be enacted under the Labour Government and represents the culmination of years of lobbying by equality campaigners in the United Kingdom. It is interesting to note that there was cross party support for the Act. However, there are a number of important measures that the Government are still considering. The Equality Act 2010 will apply in England, Wales and Scotland. Northern Ireland does not come under the scheme of the Act as the Northern Ireland Assembly has power to legislate in this area. So it seems likely that the current hodgepodge approach to equality law will continue in Northern Ireland as there is inter-party disagreement and division on the issues.
The provisions that came into force today include:
- The basic framework of protection against direct and indirect discrimination, harassment and victimization in services and public functions; premises; work; education; associations, and transport
- Changing the definition of gender reassignment, by removing the requirement for medical supervision.
- Discrimination by association with a person with a protected grounds (e.g. extension of protection from discrimination against carers of persons with disabilities)
- Clearer protection for mothers who breast-feed
- Application of the European Community legal definition of indirect discrimination to all protected grounds
- Applying the detriment model to victimization protection (aligning with the approach in employment law)
- Extending protection from 3rd party harassment to all protected characteristics
- Allowing claims for direct gender pay discrimination where there is no actual comparator
- Making pay secrecy clauses unenforceable
- Extending protection in private clubs to sex, religion or belief, pregnancy and maternity, and gender reassignment
- Introducing new powers for employment tribunals to make recommendations which benefit the wider workforce
- Harmonising provisions allowing voluntary positive action
Specific provisions relating to disability discrimination commenced today include:
- Introducing a new concept of “discrimination arising from disability”, to replace protection under previous legislation lost as a result of a legal judgment
- Extending protection from indirect discrimination to disability
- Harmonising the thresholds for the duty to make reasonable adjustments for persons with disabilities
- Making it more difficult for disabled people to be unfairly screened when applying for jobs, by restricting the circumstances in which employers can ask job applicants questions about their disability or health
The parts of the Act that the Government are not so sure about implementing include:
- The socio-economic duty on public bodies in relation to equality
- Dual discrimination
- Duty to make reasonable adjustments to common parts of leasehold and commonhold premises and common parts in Scotland
- Gender pay gap information
- Provisions relating to auxiliary aids in schools
- Diversity reporting by political parties
- Positive action in recruitment and promotion
- Provisions about taxi accessibility
- Prohibition on age discrimination in services and public functions
- Family property
- Civil partnerships on religious premises
The provision making pay secrecy clauses unenforceable is to be welcomed. However, a decision to drop the provision on gender pay gap information would be unfortunate. The vexed issue of equal pay and the inability to bridge the pay gap between male and female workers, despite decades of EC equality law, is an issue that is unlikely to be resolved by this provision even if implemented. Nevertheless, the provision would be a useful tool in challenging gender based pay discrimination. The issue of civil partnerships taking place on religious premises is also a sensitive issue with some controversy earlier this year when the Pope was critical of the proposal – see here .
The Act is an important innovation in the UK in taking a joined up approach to equality law – where a single body is charged with monitoring and enforcement. The preexisting UK patchwork equality regime was very complex and difficult to navigate, it is therefore intended that this single Act will make the equality laws clearer and deliver greater compliance. Importantly the Act clarifies the definitions of harassment, discrimination and victimization and applies them across all of the protected grounds in the Act. The legislation represents the evolution of equality law in the UK from a formal equality model to a substantive equality model that addresses not only direct discrimination but also more subtle incidences of indirect discrimination, harassment and victimization.
It is unsurprising to see the employers’ representative bodies have criticised the timing of the Act and the financial burdens it places on employers. From an Irish perspective it is interesting to see that many of improvements in UK equality law have been in place in Ireland for for over 10 years, indicating that the anti-discrimination legal framework is well-developed here. However, as we have seen in Ireland the construction of a joined up anti-discrimination legal framework is not necessarily a successful formula for breaking down discrimination. It is also clear that the work of the statutory body responsible for promoting the equality agenda can be subject to political attack. The limits of equality legislation have been discussed in previous blog posts see here for example. However, the Equality Act 2010 offers the potential for the Equality and Human Rights Commission to assume a more prominent role in advocating for equality in the UK. Professor Hepple suggests that “[a]lthough its early performance has been disappointing, the EHRC has the potential to speak with a strong voice on behalf of all disadvantaged groups on the basis of an overarching principle of equality, rather than representing only sectional interests.” See here.
