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Legal effect of statutory guidance and codes

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Last updated 31st May 2021.

These must be taken into account by courts where relevant – but are not definitive – in deciding how the Equality Act should be applied. However it is not clear whether they are at all relevant in deciding how the Act should be interpreted.

Summary

  • The Equality Act (EqA) statutory Guidance and Codes of Practice, linked off my Statutory guidance and Codes of Practice page, cover the meaning of ‘disability’, and discrimination as regards employment and services.
  • It is a common misconception that whatever the statutory Guidance and Codes say is authoritative, that what they say must be right. This has never been true. The Equality Act only says that courts should take the Guidance and Codes into account, not that they are binding. Some statements in them turn out to be incorrect.
    • A 2021 case has emphasised that tribunals should start from the wording of the Equality Act itself, and that the Guidance and Codes should not be read as statutes (below). The court said the Guidance and Codes were most likely to be useful where the answer under the wording of the Equality Act was unclear.
  • Some judges have said that the courts should not take the Guidance and Codes into account at all when it comes to interpreting the meaning of the EqA, for example when deciding whether “likely” in the Act means “more likely than not” or something else.
    • It is not clear whether the Guidance and Codes are relevant here. If they are relevant in interpreting the meaning of the EqA, it seems to be not because of what the Equality Act says about taking them into account, but just as documents evidencing the intention of the government and legislature when the Equality Act was passed. Below Are Guidance and Codes relevant to interpreting the meaning of the Equality Act?
  • Whether or not they have a role when interpreting the meaning of the EqA, it does seem that the Guidance and Codes should, where relevant, be taken into account by the courts (but not read as a statute, see above) as regards how the EqA should be applied in practice. For example: what effects of an impairment are more than “minor or trivial” so as to make it a disability, and what adjustments may be “reasonable”? Examples given in the Guidance and Codes may be particularly relevant. Below Are Guidance and Codes relevant to interpreting the meaning of the Equality Act?
  • The EAT has said that the way in which the Guidance on the meaning of disability contrasts examples may be misleading: see 2011 guidance on definition of disability> Criticism by EAT.

Guidance and Codes should not be read as statutes

There is an open question as to whether the Guidance and Codes are relevant at all as regards interpretation of the Equality Act, as opposed to how it should be applied in practice – see below Are Guidance and Codes relevant to interpreting the meaning of the Equality Act?

However even where the Guidance and Codes are relevant, they do not bind courts like a statute. It is a common misconception that whatever the statutory Guidance and Codes say is authoritative, that they must be right. Legislation only says that courts should take them into account, not that they are binding. Some statements in them turn out to be incorrect, in the light of later decisions by the courts.

The EAT emphasised this in the Elliot case below. The EAT said that in deciding whether an impairment was a disability, the employment tribunal should have started from the wording of the Equality Act, ie whether or not the effect of the impairment on normal day-to-day activities was “minor or trivial”. The Guidance and Code were most likely to be useful where the answer under the wording of the Act was unclear. Also, if the Guidance or Code was inconsistent with the Act, the Act must prevail.

Elliot v Dorset County Council, Employment Appeal Tribunal (EAT), 2021.
The issue was whether the claimant’s Asperger’s syndrome had a “substantial” effect on his ability to carry out normal day-to-day activities, so as to be a disability under the Equality Act. The Act defines substantial as meaning “more than minor or trivial”. The EAT emphasised the importance of starting from the statutory wording – namely “minor or trivial”. It said tribunals should not view the 2011 guidance as a statute. The 2011 guidance says the requirement that the effect be substantial “reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people”. The employment tribunal in Elliot had applied this statement, holding that the claimant’s Asperger’s syndrome was not a disability partly because the claimant did not find it substantially harder than other people to speak in public and to socialise. The employment tribunal had said that many people find public speaking and socialising difficult, and many people adjust their behaviour to manage these occasions. The EAT overruled the tribunal’s decision, partly because the tribunal had not focused on assessing whether the effect of the impairment was “minor or trivial” compared with how that individual would be without the impairment. The EAT said:

“31. … I do not downplay the great assistance that the Code and Guidance often provide; but they are not to be followed without thought, to be construed as if statutes; and must always give way to the statutory provisions if, on a proper construction, they differ from the Code or Guidance. Where consideration of the statutory provision provides a simple answer, it is erroneous to find additional complexity by considering the Code or Guidance.

32. There is a statutory definition of the word “substantial” as “more than minor or trivial”. The answer to the question of whether an impairment has a more than minor or trivial effect on a person’s ability to carry out day-to-day activities will often be straightforward. The application of this statutory definition must always be the starting point. We all know what the words “minor” and “trivial” mean. If the answer to the question of whether an impairment has a more than minor or trivial adverse effect on a person’s ability to perform day-to-day activities is “yes”, that is likely to be the end of the matter. It is hard to see how the answer could be changed from “yes” to “no” by further pondering the Code or Guidance. …

34. The Guidance and Code are most likely to be useful where the answer to the question is unclear. If the answer is clear it may not be necessary to consider the Guidance or Code at all. ….”

Are Guidance and Codes relevant to interpreting the meaning of the Equality Act?

Are the Guidance and Codes relevant at all as regards the interpretation of the Equality Act, as opposed to how it should be applied in practice? I summarise the result of what follows in the Summary above.

2011 guidance on meaning of disability

As regards the 2011 guidance on meaning of disability, EqA Sch1 para 12 says the court “must take account of such” of the 2011 guidance “as it thinks is relevant”. However in a 2009 case the House of Lords held that when it comes to interpreting the meaning of legislation (then the Disability Discrimination Act) the court must leave the Guidance aside and “start with a clean slate”:

SCA Packaging v Boyle, House of Lords, 2009.
The issue was the meaning of the word “likely” in the legal definition of disability. Did it mean “more probable than not” as the then statutory guidance said? The House of Lords held no, it was sufficient that something “could well happen”. On the relevance of the statutory guidance on meaning of disability, the court said:

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)

Accordingly, as regards what is now the 2011 guidance on meaning of disability:

  • In light of the comments above by Baroness Hale and Lord Rodger, the courts seem likely to take the guidance into account “when it deals with the factual matters which are relevant to the application of the legal tests”, “how the legislation should be put into effect”, and “the way that a provision may work in practice”. The House of Lords distinguished this from deciding what the legislation means, on which it said a court should not take the guidance into account – although see the later Grosset case below in which the majority thought statutory Codes could be an aid to interpretation.
  • Tying in with this distinction, I suggest that courts are more likely to take into account examples in the 2011 guidance, which EqA Sch1 para 11 specifically says the guidance may include. Paragraph 11 says the guidance may give “examples of (a) effects which it would, or would not, be reasonable, in relation to particular activities, to regard as substantial adverse effects; and (b) substantial adverse effects which it would, or would not, be reasonable to regard as long-term.” The provision which immediately follows para 11, EqA Sch1 para 12, is the one which says the court “must take account of such” of the 2011 guidance “as it thinks is relevant”, and might be read as being in the context of para 11. This would mean for example that courts would be obliged to “take account of” the example on stammering at para D17 where relevant – though courts would presumably not be bound by the examples.

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

Codes of Practice on Employment and Services

The statutory Codes of Practice on employment and services, linked off my Statutory guidance and Codes of Practice page, are issued under s.14 Equality Act 2006 and “shall contain provision designed (a) to ensure or facilitate compliance with the Equality Act 2010…, or (b) to promote equality of opportunity.” Under s.15(4) Equality Act 2006 a failure to comply with a provision of a code shall not of itself make a person liable, but the code “shall be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant”. Also under EqA Sch 13 para 7 a person subject to the reasonable adjustment duty must have regard to relevant provisions of a statutory Code of Practice under s.14 EqA 2006 in deciding whether a step is reasonable.

In the Grosset case below the court considered the relevance of a statutory Code of Practice. Importantly the court’s views were only provisional as the issue was not argued before it. The majority of the court did see the Code as being an aid to the interpretation of the Equality Act. However this was not by virtue of s.15(4) EqA 2006, whose effect was that the Code is a “guide as to [the Act’s] proper application”. The minority, Arden LJ, instead saw the Code as irrelevant to interpreting the Act, like the House of Lords in SCA Packaging above.

City of York Council v Grosset Court of Appeal, 2018
The Court of Appeal decided that on a claim under s.15 EqA 2010 for discrimination arising from disability, the employer (assuming it knows of the disability) can be liable even though it does not know of the causal link between the disability and the reason for dismissal, eg misconduct or underperformance (on this aspect of the case see Knowledge of disability>Need not know of causal link with disability).

The majority in the Court of Appeal reached this conclusion not just (and indeed not primarily) on the basis of the Code of Practice. However it saw the Code as relevant:

“42. ….In the [Employment Tribunal], the EAT and before us it has been common ground between the parties that the Code of Practice is a relevant aid to interpretation of the EqA. There was no detailed examination on this appeal of the basis for this common approach. It seems to me that it is probably best explained by the facts that the Code of Practice was issued shortly after the promulgation of the EqA and was presumably the product of deliberation between the Commission and the department which sponsored the legislation, so that it can be regarded as a form of contemporanea expositio and a legitimate aid to interpretation: see Bennion on Statutory Interpretation, 7th ed., D. Bailey and L. Norbury, section 24.17. Contrary to what appeared to be suggested at some points in the argument, I do not think that section 15 of the Equality Act 2006, referred to below, has the effect that the Code of Practice is constituted an aid to interpretation of the statute, as distinct from a guide as to its proper application. However, since the appeal proceeded on the basis of an agreement between the parties that the Code of Practice could be treated as an aid to interpretation of the EqA, it is not necessary to examine the precise basis for this any further in this judgment. Arden LJ is right to point out at para. [68] below that we did not have the benefit of argument about it.”

Lady Justice Arden agreed with the majority on the interpretation of s.15 EqA 2010 (as regards knowledge of the causal link), but disagreed on using the Code of Practice as an aid to deciding its interpretation. She said:

“68. My provisional and respectful view, however, is that to use the Commission’s code of practice as an aid to construction, as Sales and Peter Jackson LJJ have done as a supplementary basis for their decision on this point, would be contrary to authority, the terms of section 15(4) of the Equality Act 2006 and the separation of powers, but as this matter was not argued I would leave this point open. It can then be considered in a case in which the issue needs to be decided (when it may be appropriate to invite submissions from the Commission itself).”

The upshot is that it is currently unclear whether a statutory Code of Practice is relevant in interpreting the meaning of the Equality Act. If it is relevant, it seems likely to be not because of any status as a ‘statutory’ code (ie not because the Equality Act says it should be taken into account), but just as one of the documents evidencing the intention of the government and legislature when the Act was passed. It would only be as an aid to the court, and the court may or may not follow what the Codes say.

In theory the position of Codes of Practice may be different from the 2011 statutory guidance on meaning of disability (above), whose predecessor the court said in SCA Packaging (above) is not relevant to interpretation. However in practice the courts are likely to reach a common, or very similar, approach for both the guidance and the Codes of Practice.

The majority in Grosset (and Arden LJ did not disagree) suggested that s.15(4) EqA 2006 constitutes the statutory Code of Practice as a guide to the proper application of the Equality Act, so presumably s.15(4) obliges the courts to take it into account as such. This seems consistent with the courts having to take a statutory Code into account in the same type of circumstance as set out in SCA Packaging above: namely “when it deals with the factual matters which are relevant to the application of the legal tests”, “how the legislation should be put into effect”, and “the way that a provision may work in practice”.

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