I’m going to level with you, dear reader(s), I’m a bit late with this one. In my defence, I point to the fact that the Act as printed is around 250 pages long, consisting of 218 sections and 28 schedules. The explanatory notes run to over 160 pages. There is then a further 650 pages in the associated codes of practice, as well as some non-statutory guidance. While this may not be the weightiest piece of legislation ever, it certainly is something of a Behemoth. Anyway, it’s not as if we hadn’t warned you that it was coming.
Large parts of it are now in force. While it is inevitably the effects of the Act on the workplace that have garnered the most attention (I’m not going to link to some of the more rabid nonsense that was flying around during the passage of the Bill through Parliament, but the Law Society Gazette recently reported fears that Employment Tribunals are going to be submerged by the Act – perhaps it is more Leviathan than Behemoth), the Act’s reach is going to be far wider than employment law. Indeed, it could be argued that the more interesting developments over the coming years will not be found in employment disputes, but in other areas – perhaps even housing law.
As is often the way, what hasn’t been brought into force is just as interesting as what has been commenced.*
Top of that particular pile is s.1 – the public sector duty regarding socio-economic inequalities. Polly Toynbee has been widely credited/blamed for calling this “socialism in one clause”, but it was apparently a member of the then cabinet who came up with the pithy description and should therefore take the blame for its lack of any grounding in recognised political theory. But I digress. While this was always a fairly weak duty, it is hardly surprising that the current Government has not brought it into force. While it was never intended that this would be brought into force before April 2011, I wouldn’t expect to see this one being implemented any time soon.
Perhaps more importantly, ss.149-157 are not yet in force. These contain the public sector equality duty. J has recently written about the existing provisions in relation to disability. The duty contained in the Act is potentially wide-reaching and general. The intention was always that this would be filled in with specific duties imposed under s.153. The new Government has put this out to consultation, with a strong hint that they favour an extremely light touch approach and will not be prescribing how public bodies should go about their business (see para 1.2). This is all due to come into force in April 2011. It was originally proposed that the TSA would be added to the list of bodies covered by the duty, although it’s probably not worth it now.
Another big, “headline”, provision that isn’t effective yet is s.14, which covers dual discrimination. This was designed to tackle the problems in the existing legislation, as identified in Bahl v Law Society  EWCA Civ 1070. This wasn’t in the Bill as originally introduced, but was added in a bit of a rush further down the line. To the best of my knowledge this is still due to be implemented in April next year.
The provisions covering age discrimination in services and public functions are still being considered by the Government. Presumably this has not been considered enough in the Discrimination Law Review; the consultation on ‘A framework for fairness’; the GEO’s consultation ‘Equality Bill: Making it work – Ending age discrimination in services and public functions’; the age equality in health and social care review; and an HMT Experts’ Working Group.
Also still being considered, and a bit of a niche one this, is s.36, insofar as it imposes a duty to make reasonable adjustments to common parts of leasehold and commonhold premises. I am none the wiser as to whether this will eventually see the light of day (or commencement).
Finally, for our purposes, ss.198-201 which would abolish a husband’s common law duty to maintain his wife and the presumption of advancement are yet to be brought into force.
So that’s a lot that hasn’t been commenced, but what actually has? Well, most of it, but it’s important to remember that the majority of the Act is not really anything new – it is consolidating and creating consistency, with the aim of all equality legislation being in one place.
For instance, there are some changes in terminology. We now have the “protected characteristics” of age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation (s.4). Direct discrimination is defined by s.13 to occur where “A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.” This is a change from previous legislation, which used the phrasing “on grounds of”. Note that s.13(2) allows for objective justification of direct age discrimination. This preserves the status quo.
What is actually new, rather than being moved about and/or tinkered with? Disability discrimination is now covered in two new ways. The Office for Disability Issues originally proposed simply extending indirect discrimination to cover disability, which is done by s.19, but after consultation the ODI was persuaded to introduce a new provision dealing with discrimination arising from disability. This is s.15:
(1) A person (A) discriminates against a disabled person (B) if—
(a) A treats B unfavourably because of something arising in consequence of B’s disability,
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate
(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have
been expected to know, that B had the disability.
While we’re on the subject of disability discrimination, the Office for Disability Issues is consulting (for just a few more days) on the guidance on matters to be taken into account in determining questions relating to the definition of disability. The draft guidance is here and the consultation paper is here, but move fast – the consultation closes on the 31st of October.
Following on from the ECJ’s decision in Coleman v Attridge Law protection from discrimination by association is covered by s.13 across the board, except for the protected characteristic of marriage/civil partnership.
The Equality and Human Rights Commission has produced three Codes of Practice, which were laid before Parliament on 12th October. These cover Equal Pay; Employment; and Services, Public Functions and Associations.
The EHRC has also produced some non-statutory guidance. These have been dedicated to Clare Cozens, who was responsible for producing the Guidance, and sadly died three days before it was published. If I can be excused a personal note, I only came into contact with Clare a couple of times, but from those instances I would agree that the wonderful things said about her are well put.
Transition provisions are in effect – I’m running out of steam, but the GEO has some details.
There may be interesting times ahead in seeing how all of this works and whether the remaining provisions are brought into force, while bubbling away in the background is the EC’s draft Directive. I haven’t heard anything about this for a while, anyone know what’s going on?
*Total levels of interest are relative and may depend on one’s legal-geekiness. Here at NL Towers some of us would cancel a good night out to read something like The Income-related Benefits (Subsidy to Authorities) (Temporary Accommodation) Amendment Order 2010. Tastes, of course, may vary.