Chapter 1
THE EQUALITY ACT 2010
The Letter and the Spirit of the Law
Jo Honigmann
INTRODUCTION
This chapter has been written specifically to set the context for the rest of the book, and as such serves as a useful source for anyone wishing to read an accessible guide on the Equality Act 2010 (‘the Act’) as it relates to the provision of services and the exercise of public functions (Part 3 of the Act). Subsequent chapters develop the practice, operational and managerial requirements to ensure compliance in relation to each protected characteristic. This chapter is deliberately rich in detail and ensures that readers will have in one place both legal and technical information on the content of the Act (contained in this chapter) and also the issues to consider in implementation (in subsequent chapters).
THE BACKGROUND TO THE ACT
The Equality Act 2010 (which covers England, Wales and, with some exceptions, Scotland) is the latest development in a history of discrimination legislation, starting with the Race Relations Act back in 1965. It brings together all the existing discrimination legislation into one statute; as its explanatory notes explain, it has ‘two main purposes – to harmonise discrimination law, and to strengthen the law to support progress on equality’ (explanatory note 10 to the Act). Familiar statutes such as the Race Relations Act 1976, the Sex Discrimination Act 1975 and the Disability Discrimination Act 1995 have now been repealed.
The Act received Royal Assent on 8 April 2010 and the majority of its provisions came into force on 1 October 2010, with some key provisions such as the public sector Equality Duty following in 2011. Protection from age discrimination in the provision of goods and services for people aged 18 and came into force on 1 October 2012. At the time of writing, additional key provisions which the Labour Government intended to bring in have been rejected by the Conservative-Liberal Democrat, namely the socio-economic duty and dual discrimination. The Government’s Red Tape Challenge1 is threatening the continued existence of the public sector Equality Duty and the positive action provisions.
The protections the Act contains echo the intent behind the guiding principles of the Code of Practice to the Mental Health Act 1983 and the tenets of the Human Rights Act 1998. They provide a framework in which mental health service providers must operate to avoid unlawful (even if unintentional) discrimination.
OVERVIEW OF THE ACT
The Act offers protection to people if they are discriminated or harassed on the basis of a protected characteristic, or if they are victimised as a result of action taken in connection with the Act, in different contexts including employment, access to services, the exercise of public functions (such as the exercise of statutory powers under mental health legislation), education and premises.
There are nine protected characteristics listed in s4 of the Act: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. Not all of these characteristics are protected in every context; for example, a person is protected from discrimination by virtue of being married or in a civil partnership if they are an employee, but not if they are seeking to access services or education, nor in relation to premises. These protected characteristics are explained in more detail below.
There are several different types of discrimination (set out in ss13–22 of the Act): direct (including by association or perception), indirect, pregnancy and maternity discrimination, discrimination arising from disability and a failure to make reasonable adjustments for disabled people. There are additional prohibitions on harassment (s26 of the Act) and victimisation (s27 of the Act). It is also unlawful to instruct, cause or induce discrimination.
In addition to duties towards individuals, public bodies listed in Schedule 19 of the Act (and those exercising a public function) also have a duty to improve equality outcomes across all the protected characteristics2 from within their organisation in the form of the public sector Equality Duty (s149 of the Act). This has two parts: a general duty on all those listed bodies and those exercising a public function referred to above; and specific duties on those bodies listed in Schedules 1 and 2 of the Equality Act 2010 (Specific Duties) Regulations 2011. The NHS and local authorities are covered by both the general and the specific duties.
All types of organisations now have the opportunity to adopt positive action measures to improve equality outcomes, not only for their employees (s159 of the Act in relation to recruitment and promotion) but also for their clients/service users with protected characteristics who experience a disadvantage, have particular needs or a disproportionately low participation rate arising from their protected characteristic (s158 of the Act).
Individuals who think they have been discriminated against can bring a claim under the Act; this may be in a county court (sheriff court in Scotland) or a tribunal, depending on the context. If the claim is in connection with non-compliance with the public sector Equality Duty, any affected person/s (as well as the Equality and Human Rights Commission, EHRC), can bring a High Court (Court of Session in Scotland) action known as a judicial review.
The EHRC also has a variety of other enforcement powers, which are covered in the section on enforcement below.
Key points arising from these different provisions of the Act are considered in more detail in the following sections, but this is by no means an exhaustive explanation of the Act’s provisions.
The EHRC has produced statutory3 and non-statutory4 guidance for different areas of the Act; some statutory guidance such as that in relation to the public sector Equality Duty has yet to be finalised and other codes have yet to be commenced. The Government’s Office for Disability Issues based in the Department for Work and Pensions has produced non-statutory guidance as has the Government’s Equalities Office based in the Home Office which leads on the Act.
This chapter focuses on the work of all those involved in mental health services provision, both as service providers (as opposed to employers) and when exercising a public function (such as commissioning decisions about service priorities); in practice, the Act’s duties in relation to the provision of services and the exercise of public functions operate in a very similar way. Part 3 of the Act covers services and the exercise of public functions.
PROTECTED CHARACTERISTICS
The protected characteristics covered by Part 3 of the Act at the time of writing are discussed below. The ban on age discrimination in the provision of services and public functions is coming into force on 1 October 2012 but will only apply to people aged 18 and over.
Disability (s6 and Schedule 1 of the Act)
The definition of disability under the Act is essentially the same as under the Disability Discrimination Act 1995 as amended (the DDA); namely, a person is disabled if they have a physical or mental impairment which has a substantial long-term adverse effect on their ability to carry out normal day-to-day activities. As under the DDA (as amended by s18(2) of the Disability Discrimination Act 2005), a mental impairment does not have to be clinically well recognised in order to satisfy the definition. What has changed is that there is no longer a list of capacities (such as speech, hearing or eyesight, memory or ability to concentrate, learn or understand, or perception of the risk of physical danger), at least one of which a person had, under the DDA, to show was affected in order to prove that their ability to carry out normal day-to-day activities was affected by their impairment.
Certain conditions are specifically excluded from the Act, including addiction to, or dependency on, alcohol, nicotine, or any other substance (other than in consequence of the substance being medically prescribed).
Non-statutory guidance on how the definition is applied, including detailed information about how recurring conditions such as depression are treated, has been issued by the Government’s Office for Disability Issues (2011).
Gender reassignment (s7 of the Act)
People who are proposing to undergo, or are undergoing a process (or part of a process) to reassign their sex by changing ‘physiological or other attributes of sex’ (s7(1) of the Act) are covered by the protected characteristic of gender reassignment. The Act does not consider this as a medical process; there is no requirement for someone to have had medical treatment in order to receive the Act’s protection. As long as they have proposed...
