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Legal effect of statutory guidance and codes

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Last updated 19th January 2019.

These must be taken into account by courts in deciding how the Equality Act should be applied, but not necessarily as to how it 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 employment and services.
  • It is a common misconception that whatever the statutory Guidance and Codes say is authoritative, that they say must be right.
  • This has never been true. Legislation 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, in the light of later decisions by the courts.
  • Some judges, but not all, have gone further however when it comes to interpreting the meaning of the EqA, for example does ‘likely’ mean ‘more likely than not’ or something else. They have said that here they must not take the Guidance and Codes into account at all.
  • If the Guidance and Codes are relevant in interpreting the meaning of the EqA, it seems likely to be not because of any status as a ‘statutory’ code, but just as one of the documents evidencing the intention of the government and legislature when the Act was passed.
  • It does seems probable that the statutory Guidance and Codes must be taken into account by the courts as regards how the EqA should be applied in practice. For example: what effects of an impairment are ‘substantial’ so as to be a disability, and what adjustments may be ‘reasonable’? Examples given in the guidance and codes may be particularly relevant.
  • 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.

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:

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 (now president of the Supreme Court) 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 may not take the guidance into account – though 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.

Also, in December 2012, the Employment Appeal Tribunal said 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, but importantly the court’s views were provisional as the issue was not argued before it. The majority of the court did see the Code as 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 (link to bailii.org) Court of Appeal, 2018
The Court of Appeal in this case 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 (see Knowledge of disability on this aspect of the case).

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:

’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, 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 try 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, which would presumably mean that 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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