Equality Act 2010

Codes of Practice on employment and provision of services came into force on 6th April 2011. New statutory guidance on the definition of disability came into force on 1st May 2011. Non-statutory guidance on the Equality Act is also available. Results are awaited from previous consultations on a draft Code for further and higher education and draft Codes of Practice for schools.

When did the Act come into force?

Most of the Equality Act, "90% or more", came into force on 1st October 2010, as intended by the previous Labour government. However, some parts such as the single public sector equality duty have or will come into effect later, and some provisions will not come into effect at all. For more, see Equality Act 2010: when does it come into force?

Transitional arrangements

Regarding how to decide whether discrimination falls within the DDA as before 1st October 2010, or within the Equality Act as after 1st October 2010, see my page Which Act applies: Equality Act or DDA? - and the Government guidance Equality Act 2010: Transitional Arrangements (link to GEO site archived at National Archives).

How does the Act change the law?

Some of the main changes relating to disability discrimination law are as follows:

Objective justification test

For some types of discrimination, an employer or service provider etc has a defence if it can 'justify' how it treated the disabled person. The tests previously used are replaced by a single objective 'justification' test, namely the employer, service provider etc must show that its conduct was a 'proportionate means of achieving a legitimate aim'.

• In employment, this should be a higher threshold than the previous justification test. Employers will not find it so easy to justify less favourable treatment of employees and job applicants;
• As regards provision of services (by shops, banks, public authorities etc), comparison with the previous justification test is more difficult. Under the new test, service providers may sometimes find it easier to at least put up an argument that less favourable treatment of someone who stammers is justified.

The new objective justification test came into force on 1st October 2010. (More on objective justification test.)

More detail on changes to: Employment Services Who is protected Education Disability equality duty

Remedying the Malcolm case

A decision by the House of Lords in LB Lewisham v Malcolm severely curtailed some rights to claim for disability discrimination. However, the Equality Act aims to shift the position back to a more balanced approach, giving disabled people wider rights, but subject to the employer etc being able to 'justify' its conduct. This is being achieved by the introduction of new ways to claim for disability discrimination - called 'discrimination arising from disability' and 'indirect discrimination'. Came into force: 1st October 2010. (More on New heads of discrimination.)

Pre-employment inquiries

There is a new rule against employers asking job applicants disability-related questions. The rule is subject to important exceptions. Came into force: 1st October 2010. (More on pre-employment enquiries)

Single equality duty

Until April 2011 there were three separate 'public sector equality duties' applying to public bodies. The duties covered race, disability and gender. Under Equality Act 2010, from 5th April 2011 there is a single public sector equality duty which also embraces other grounds such as sexual orientation and religious belief, as well as race, disability and gender. Not only the scope but also the content of the duty is changed - at least in England 'equality schemes' will no longer be required. Came into force: 5th April 2011 for the 'general' public sector duty, but later in England and Scotland for the 'specific' duties. (More on single Public Sector Equality Duty.)

Discrimination by perception

Direct discrimination or harassment based on 'perceived' disability is probably made unlawful (or, for employment, possibly more clearly unlawful). This may help a claimant if, for example, an employer argues that the effects of an impairment on normal day-to-day activities are not substantial. The employer (or service provider etc) may be liable even if the effects are not substantial, on the basis it perceived there to be a disability. Came into force: 1st October 2010. (More on discrimination by perception.)

Discrimination by association

Direct discrimination or harassment based on association is made unlawful, or in the case of employment more clearly unlawful. This might apply for example where a friend of a disabled person is harassed. This change implements a European Court decision in Coleman v Attridge Law, but also goes beyond it. Came into force: 1st October 2010. (More on discrimination by association.)

Treating disabled person more favourably

Treating a disabled person more favourably was not prohibited by the Disability Discrimination Act. However, the right to do this may have been restricted by the Equality Act. Broadly, it is still lawful under the Equality Act to treat disabled people in general more favourably than non-disabled people. But it may be that one can only prefer people with a particular impairment (or class of impairments) if that is permitted by some particular provision in the Equality Act. Came into force: 1st October 2010. For more: Direct discrimination: Treating disabled person more favourably.

Reasonable adjustments by service providers

It is now easier to claim reasonable adjustments from service providers. Came into force: 1st October 2010. (More on lower threshold for reasonable adjustments).

Definition of disability

The Act removes the list of 'capacities' Came into force: 1st October 2010. (More on changes to definition of 'disability'...)

Recommendations by Tribunals

Under the Equality Act a tribunal can make a recommendation benefiting the wider workforce, even if it is no longer relevant for the individual claimant. This is most likely to happen where the individual has left the employer. Came into force: 1st October 2010. (More on recommendations.)

Dual discrimination

Claims for direct discrimination on two combined grounds (but no more than two) were to be allowed - e.g. discrimination for being a disabled woman. However this provision is now not going to be brought into force. (More on dual discrimination.)

Liability for harassment by customers etc

In some circumstances employers are now liable if staff are being harassed by third parties, such as customers or suppliers. Came into force: 1st October 2010. (More on harassment)

Auxiliary aids as reasonable adjustment for schools

Schools and LEAs will have a duty to provide an auxiliary aid or service where reasonable. A Scottish consultation document was issued in October 2011. Coming into force: 1st September 2012? (More on new auxiliary aid duty...)

Statutory guidance and Codes of Practice

Statutory guidance on the definition of disability, and also Codes of Practice, have particular legal relevance in that legislation says tribunals and courts must take them into account. However, the guidance and Codes are not authoritative statements of law.

Codes of Practice: employment and services

The Equality and Human Rights Commission (EHRC) has published two Equality Act 2010 Codes of Practice relevant to disability, which came into effect on 6th April 2011:

Equality Act Code of Practice on employment (pdf, link to EHRC website)
Equality Act Code of Practice on services, public functions and assocations (pdf, link to EHRC website)

The previous Codes are revoked by SI 2011/766 (link to legislation.gov.uk), and the new Codes are brought into effect by 2011/857 (link to legislation.gov.uk). There are some transitional provisions in the revocation order, saying that the old Codes of Practice will still apply to DDA claims where the act complained of occurs wholly before 1st October 2010, and in some other limited circumstances.

Tribunals are obliged under s.15 Equality Act 2006 to take the Codes of Practice into account. Before 6th April 2011, the pre-Equality Act Codes of Practice remained in force.

EHRC Chair Trever Phillips describes each Code as "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... The Code draws on case law and precedent to illustrate where and how different provisions can be brought to bear in real-life situations."

A key feature of the Codes is that all the discrimination strands (sex, race, disability etc) are covered in the one document, like the Equality Act itself. There are no longer separate Codes of Practice on disability.

There is more about the Codes on the EHRC website's Equality Act Codes of Practice page.

Statutory Guidance on definition of disability

In February 2011 the Office for Disability Issues published revised 'Guidance on matters to be taken into account in determining questions relating to the definition of disability', to reflect Equality Act 2010. This 2011 guidance took effect from 1st May 2011. However, the previous 2006 guidance still applies where the act complained of happened before 1st May 2011, or is a continuing act which began before 1st May (SI 2011 No. 1159 (link to legislation.gov.uk)).

Download 2011 guidance on definition of disability (link to ODI website, pdf).

For more on the 2011 guidance as regards stammering, including my comments, see 2011 Guidance on definition of disability.

Article 13 of SI 2010 No. 2317 (link to legislation.gov.uk) said that the 2006 version of the guidance continues in effect even for Equality Act 2010, until the new 2011 guidance comes into force as described above.

Consultation on Codes of Practice for Schools

In January 2011 the EHRC published consultation draft Equality Act Codes of Practice for Schools, one for England and Wales and one for Scotland. The consultation closed on 22nd April. The consultation draft Codes are at www.equalityhumanrights.com/legal-and-policy/equality-act/equality-bill-consultations/. Final versions are due to be published and laid before Parliament by April 2012 (source: EHRC website: Codes of Practice).

The draft Codes include an example of harassment related to stammering:

From consultation draft Codes of Practice on Schools, para 8.14
A pupil who is extremely shy is teased by a teacher about not being confident enough to answer questions in class. The teacher mimics him in front of the class by speaking with a stutter. Although the teacher knows the pupil does not have a speech or language disability, this conduct could still amount to disability related harassment under the Act.

The Schools Codes above, and the Further and Higher Education Code below, for Equality Act 2010 are not yet in force - and indeed not yet finalised. In the meantime the pre-Equality Act Codes of Practice remain in force (see 'Are the Codes of Practice issued by the DRC, CRE and EOC now obsolete?' (link to EHRC website))

Consultation draft Code of Practice on Further and Higher Education

A consultation on this ran until 31st December 2010. The consultation draft is available at www.equalityhumanrights.com/legal-and-policy/equality-act/equality-bill-consultations/closed-consultations/. The final version of the Code will "hopefully" be laid before Parliament by Spring 2012 (source: EHRC website: EqA Codes of Practice, 11/12/11). In November the estimated date given was late Autumn 2011, but this has evidently been delayed.

Consultation draft Code for PSED?

The Code of Practice for the Public Sector Equality Duty "is being prepared" (source: EHRC website: EqA Codes of Practice, 11/12/11). In November a consultation draft was expected to be available for consultation in Autumn 2011, but this has evidently been delayed.

Non-statutory guidance

Short guides to the Equality Act have been produced by the Government Equalities Office and ACAS. More detailed guidance has been produced by the Equality and Human Rights Commission.

This guidance is 'non-statutory' in the sense that it is not provided for in legislation, unlike the guidance on definition of disability and the Codes of Practice above.

"Equality Act 2010: What do I need to know?"

The Government Equalities Office is publishing a series of guides which it calls Equality Act 2010: What do I need to know? (link to homeoffice.gov.uk).

It includes summary guides and "Quick Start" guides to the key changes in the law, and is produced by the Government Equalities Office in partnership with the British Chambers of Commerce, Citizens Advice, ACAS and the Equality and Diversity Forum. There are guides for individuals, businesses, public sector, and voluntary and community sector

ACAS guide for employers

ACAS has published a 'Quick Start Guide for Employers' (link to ACAS).

EHRC guidance

The Equality and Human Rights Commission has published more detailed guidance to help explain the Equality Act and provide practical examples on how the law has changed: www.equalityhumanrights.com/advice-and-guidance/equality-act-guidance/

Other consultations

Exam boards

Ofqual issued a consultation on Specifications in Relation to the Reasonable Adjustment of General Qualifications, ending 15th August 2011. This covers GCSEs, A-levels etc in England.

Ships and hovercraft

The DfT issued a consultation on services relating to ships and hovercraft. The consultation closed on 7th April 2011.

Single equality duty - Scotland

In September 2011 a consultation was published on specific duties for Scotland, under the Public Sector Equality Duty. The consultation closes on 25th November. More: PSED: specific duties in Scotland.

Drafting problems in Equality Act

There seem to me to be some drafting problems in the Equality Act 2010 which will need to be resolved by the courts or otherwise, They include the following (if anyone disagrees let me know: atyrer2000@yahoo.co.uk):

• uncertainty as to how far an employer has a 'lack of knowledge' defence in the reasonable adjustment duty;
• issues with the reasonable adjustment rules for employment services;
• in the new rules against pre-employment enquiries, there is odd wording in the 'reasonably believes' test for intrinsic job functions and reasonable adjustments;
• a well publicised issue is that the drafting on independent legal advice for compromise agreements is confusing.

Though not exactly a drafting problem, an issue to be resolved is how far if at all one disabled person can be treated more favourably than another disabled person (unless a specific exception applies such as 'positive action' or 'occupational requirement'). The Government's intention seems to be that disabled people can be treated more favourably than non-disabled people, but (unlike previous legislation) one disabled person cannot be treated more favourably than another disabled person. See Treating disabled people more favourably.

Passage through Parliament

For some of the changes and clarifications made to the Equality Bill during its passage through Parliament, see Equality Bill: passage through Parliament.

Equality Act 2010 menu

Main pages:

Equality Act 2010
Equality Act or DDA?
When come into force?

Particular areas:

Disability
Employment
Services
Education
Disability Equality Duty
Remedying Malcolm