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Guidance and Codes of Practice

This page links to and discusses official guidance and Codes of Practice on the Equality Act.

In summary: key guidance on the Equality Act

Non-statutory guidance

This tends to be shorter and more accessible

Statutory guidance and Codes of Practice

These must be taken into account by courts, but are not binding - see below Legal effect.

Explanatory Notes

Technical guidance

Like non-statutory guidance, this is not provided for in legislation. However it is more detailed and technical, and looks like a Code of Practice. As at May 2014 they are all in the course of being updated: www.equalityhumanrights.com/publications/guidance

Statutory versus non-statutory

Neither 'statutory' nor 'non-statutory' guidance are authoritative statements of the law. The courts are not bound by either type of guidance. However, 'statutory' guidance (including statutory Codes of Practice) is provided for in legislation, which says that the courts must take it into account.

There are basically four types of Equality Act guidance and Codes of Practice:

Non-statutory guidance

This tends to be shorter and more accessible than other guidance, aimed at lay people rather than lawyers or other professionals. The guidance is 'non-statutory' in the sense that it is not provided for in legislation.

"The non-statutory guidance ... is designed to be a first port of call for everyone who has an interest in equality. It is intended to be practical and accessible.
Wording in Statutory Codes of Practice, explaining how they differ from 'non-statutory guidance'.

Statutory guidance and Codes of Practice

Legislation says tribunals and courts must take these into account - see below Legal effect.

"...[The Statutory Code of Practice] is the authoritative, comprehensive and technical guide to the detail of law. It will be invaluable to lawyers, advocates, human resources personnel, courts and tribunals, everyone who needs to understand the law in depth, or to apply it in practice."
Wording in Statutory Codes of Practice, explaining how they differ from 'non-statutory guidance'.

Statutory Codes of Practice: employment and services

Courts must take these Codes of Practice into account: see below Legal effect. They are issued by the Equality and Human Rights Commission (EHRC), and took effect on 6th April 2011 (SI 2011/857, previous codes were revoked by SI 2011/776). There is more about the Codes of Practice at Equality Act Codes of Practice and Technical Guidance (link to EHRC).

Statutory Guidance on definition of disability

Courts must take this Guidance into account: see below Legal effect. For more on the 2011 guidance as regards stammering, including my comments, see 2011 Guidance on definition of disability. The 2011 guidance took effect from 1st May 2011.(SI 2011/1159).

Legal effect of statutory guidance and codes

'Statutory' guidance and codes are issued under powers set out in legislation, and courts and tribunals are obliged to take them into account.

This does not mean courts and tribunals are bound by them. They are not authoritative statements of law.

SCA Packaging v Boyle, 2009, House of Lords, on the statutory Guidance on meaning of disability. The issue was the meaning of the word 'likely' in the legal definition of disability.
Baroness Hale: "In this House, we start with a clean slate. The Guidance has, of course, to be taken seriously into account when it deals with the factual matters which are relevant to the application of the legal tests. It is common for statutory Guidance to try to explain, not only how the legislation should be put into effect by the people who have to apply it, but also what the legislation means. But that is simply being helpful to practitioners who are not lawyers and may never read the legal texts. Statutory construction remains a matter for the courts, not for Departmental Guidance. If the court considers that the Guidance is a mis-statement or mis-application of what Parliament has enacted, then it must say so." (para 67)

Lord Rodger: "...while the Guidance can helpfully illustrate the way that a provision may work in practice, it cannot be regarded as an authority on a point of statutory interpretation. I would therefore put it on one side." (para 36)

Also, in December 2012 the Employment Appeal Tribunal said the way in which that particular guidance contrasts examples may be misleading: see 2011 guidance on definition of disability: Criticism by EAT.

What is the legal authority for the statutory guidance and codes having to be taken into account?

Pre-Equality Act Codes of Practice

See below Pre-Equality Act Codes of Practice for older Codes of Practice, It is possible these may still be in force.

Explanatory Notes

These were issued with the Equality Act 2010 and give a section by section commentary on the Act, often with examples:

To a certain extent courts can take Explanatory Notes into account as an aid to interpretation of the statute: sixthformlaw.info.

Technical guidance

Technical guidance issued so far

As at May 2014 these are all in the course of being updated: www.equalityhumanrights.com/publications/guidance

Statutory versus non-statutory

What is technical guidance?

Like non-statutory guidance, there is no statutory obligation on courts/tribunals to take technical guidance into account. Even so, courts/tribunals may be willing to look at it and pay some regard to it.

"This guidance is not a statutory Code issued under s.14 EA 2006, however it may be used as evidence in legal proceedings."
Technical Guidance on Further and Higher Education, p.14.

Apart from being non-statutory, 'technical guidance' is similar to a statutory Code of Practice. Accordingly, compared with other non-statutory guidance, technical guidance is more complex, less easily accessible to the lay person.

The Equality and Human Rights Commission started issuing technical guidance in 2012. This is because the Government decided that no more statutory Codes of Practice for Equality Act 2010 should be issued. Apparently the Government sees statutory Codes of Practice as 'bureaucracy' which it is keen to reduce. Statutory codes issued by EHRC can only take effect if approved by the Government.

The EHRC does not agree with the Government's stance and is issuing what would have been Codes of Practice as 'technical guidance' instead (originally the EHRC called them 'non-statutory codes'). The EHRC says:

"Technical guidance is a non-statutory version of a code, however it will still provide a formal, authoritative, and comprehensive legal interpretation of the PSED and education sections of the Act. It will also clarify the requirements of the legislation."
www.equalityhumanrights.com/legal-and-policy/legislation/equality-act-2010/equality-act-codes-practice-and-technical-guidance

For more on technical guidance, see 'Technical Guidance Introduction' heading on Equality Act Codes of Practice and Technical Guidance (link to EHRC).

Note that unless revoked, it seems the existing pre-Equality Act statutory codes on schools, further and higher education and the Public Sector Equality Duty may also continue in force. See above Pre-Equality Act Codes of Practice.

Pre-Equality Act Codes of Practice

It is possible that older statutory Codes of Practice on the Disability Discrimination Act 1995 may remain in force until revoked. So far as I know, those below have not been revoked. Whether or not they remain in force as statutory codes, in practice it seems more likely courts will look at the 2006 transport code, and 2007 code on trade organisations, qualification bodies etc, since there is no newer technical guidance replacing them,

In any event, it must be borne in mind that they are not updated for changes made by the EqA. The EHRC website says the ERHC "would ask you to bear in mind that they do not set out clearly and precisely the requirements under the Equality Act 2010 although they may be of assistance in providing guidance where the law has not changed substantially."

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Last updated 15th June 2014