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Guidance and Codes of Practice: Equality Act 2010

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Last updated 19th January 2019.

Official guidance and Codes of Practice on the Equality Act. They are not binding on the courts.

In summary: key guidance on the Equality Act

Non-statutory guidance

This tends to be shorter and more accessible, a lay person’s guide:

More below: Non-statutory guidance.

Statutory guidance and Codes of Practice

These should be taken into account by courts as regards how the Equality Act should be applied, though not necessarily how it should be interpreted: see Legal effect of statutory codes and guidance.

More below: Statutory guidance and Codes of Practice.

Technical guidance

Like non-statutory guidance, technical guidance is not provided for in legislation. However it looks like a Code of Practice. It is more detailed and technical than other non-statutory guidance. Technical guidance is linked off www.equalityhumanrights.com/en/advice-and-guidance/equality-act-technical-guidance and includes:

  • Public sector equality duty;
  • Schools;
  • Further and higher education.

More below: Technical guidance.

Explanatory Notes

More below: Explanatory Notes.

Non-statutory guidance

This tends to be shorter and more accessible than other guidance It is aimed at lay people rather than lawyers and 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

Courts and tribunals are obliged to take these into account as regards how the Equality Act should be applied, but not necessarily how it should be interpreted. See separate page on Legal effect of statutory guidance and codes.

“…[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 provision of services

The Employment and Services Codes of Practice both have Supplements (at the same links above) identifying later legal developments up to March 2014. The Supplements are not part of the statutory Codes. This is presumably because the government is not willing to approve new statutory Codes of Practice, as discussed below under Technical guidance.

The statutory Codes were 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 (link to EHRC).

Statutory Guidance on definition of disability

As regards the obligation of courts to take this into account, see separate page Legal effect of statutory guidance and codes. 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).

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. They 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.

Technical guidance

Summary

This is detailed guidance by the Equality and Human Rights Commission (EHRC). It covers education and also the public sector equality duty. The courts can take the guidance into account, and it looks similar to statutory Codes of Practice, but it does not have the legal basis of statutory Codes of Practice (above). The EHRC page on it is www.equalityhumanrights.com/en/advice-and-guidance/equality-act-technical-guidance

Technical guidance issued

Technical guidance issued by the Equality and Human Rights Commission is linked off the EHRC website at www.equalityhumanrights.com/en/advice-and-guidance/equality-act-technical-guidance. It includes:

  • Further and higher education. This area is dealt with on my Further and Higher Education pages.
  • On schools, technical guidance for schools in England and Scotland, and a guide for Wales. Also ‘Reasonable adjustments for disabled pupils – Auxiliary Aids Technical Guidance’. My Equality Act in schools page is not yet updated for the new technical guidance.
  • Public Sector Equality Duty in England, Scotland, and Wales. See PSED.

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 cannot take effect unless approved by the Government.

The EHRC did not agree with the Government’s stance and has issued what would have been Codes of Practice as ‘technical guidance’ instead. 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/en/advice-and-guidance/equality-act-technical-guidance

For more on technical guidance, see the ‘Technical Guidance Introduction’ heading at that link.

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 below 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 that courts will look at those old codes for which there is no newer technical guidance, namely the 2006 transport code, and the 2007 code on trade organisations, qualification bodies etc.

In any event, it must be borne in mind that they are not updated for changes made by the Equality Act!

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