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The Equality Act 2010 is now in effect for the last 11 years and in that time, it has been used a number of times by claimants to enforce remedies under the law primarily aimed at preventing discrimination. This dissertation critically analyses the working of the Act in the last 11 years to assess whether the creation of Equality Act 2010 has achieved the desired purpose. This dissertation finds that the law has managed to achieve the purpose of anti-discrimination to a great degree. However, there are areas where the Equality Act 2010 does fall short, which are also identified in this dissertation.
Equality Act 2010 was the outcome of 14 years of lobbying by different groups of civil society, prominent amongst which were human rights organisations and equality specialists. It can therefore be considered that it is an important piece of legislation in terms of how it was projected by these groups to be a significant method for eliminating discrimination and achieving equality for different groups of people and communities in the society.
The Equality Act 2010 is one of the most significant legislations in recent British legislative history in the context of promoting equality and preventing and addressing discrimination. The law was enacted to address the problem of piecemeal legislation in the sector of equality and anti-discrimination. When the law was enacted, there were a number of anti-discrimination legislations in the UK which were used to address specific forms of discrimination. One of the significant changes made by the Equality Act 2010 is that it put an end to the piecemeal legislation approach to anti-discrimination law with its overriding aim to achieve “harmonisation, simplification and modernisation” of the anti-discrimination law.
Since the law has been in effect for more than a decade, important questions can now be raised as to its effectiveness in eliminating discrimination and whether it has been able to achieve the desired purposes for which it was enacted. While assessing the effectiveness of the Equality Act 2010, care has been given to the argument made by Butler who noted that evaluation of equality laws in the UK is very difficult because the “standard differs depending on the strand of equality that underpins the protection in question.” Based on this argument, the dissertation assesses the effectiveness of this law based on the different standards applied to the different strands of equality. For this purpose, this dissertation assesses the effectiveness of the law based on specific areas such as, gender justice specifically related to equal pay and disability. This does keep the discussion focussed on assessment of the law limited to certain areas but makes it possible to make such an assessment.
This dissertation asks the following overarching question: “does the Equality Act 2010 have a constructive impact of eliminating discrimination and is this desired purpose achieved?” The research questions seek to give direction to this dissertation by limiting the scope of research to two questions, which are whether the provisions of the Equality Act 2010 have the constructive impact of eliminating discrimination and whether the law has been able to achieve this desired purpose.
Literature on Equality Act 2010 in the 11 years since it has come into effect has done one of two things: it has explained the scope of the law; and it had critiqued the law on a number of issues. This dissertation takes this literature into account and collates it for arriving at certain conclusions with regard to how far the Equality Act 2010 has achieved the purpose of eliminating discrimination. The dissertation has adopted a qualitative research approach because there is complex and multi-layered data on this issue. Being open and subjective in nature, qualitative research method in this dissertation takes into account this multi-layered data and analysis this data by applying a thematic approach all the while keeping into account the research questions.
For this research, both primary and secondary data has been collected. Secondary data was collected from books and journal while the primary data is contained in the Equality Act 2010 and the case law related to the Equality Act 2010. This data helped the researcher to arrive at conclusions with regard to the research question, that is, whether the Equality Act 2010 is enacted to constructively eliminate discrimination and whether this desired purpose is achieved. The secondary and primary data has allowed the researcher to assess the working of this law on the basis of literature and existing research as well as analysis of case law to assess how courts have been able to improve the implementation of the equality and anti-discrimination provisions due to the provisions of the Equality Act 2010.
Structure of the dissertation
The next chapter of the dissertation is explanatory in nature and it concerns with explaining the background, provisions and scope of the Equality Act 2010 in order to set the background of the law. The chapters after this are concerned with an analytical and critical discussion on the Equality Act 2010. The final chapter concludes the findings of the research by responding to the research questions.
At the time when Equality Act 2010 was enacted, it was stated that the overriding aim of the legislation is to achieve “harmonisation, simplification and modernisation” of the law relating to equality and prevention of discrimination. This is the first point of significance that can be discussed here because it points to the one of the important purposes of the Equality Act 2010. The Introductory Text to the act notes that the aim for the enactment of the Equality Act 2010 is to reform and harmonise the law in this area. It may be noted here that there were a number of laws that were related to the provision of equality and the prevention of discrimination including inter alia, Equal Pay Act 1970, Sex Discrimination Act 1975, Race Relations Act 1976, and Disability Discrimination Act 1995. There were in all nine legislations and four EU Directives in the area of equality and prevention of discrimination and these have now been implemented through the Equality Act 2010.
It can be said that as far as harmonising the law is concerned, the Equality Act 2010 does manage to include the existing piecemeal legislation within the ambit of one legislation. Thus, one of the issues for consideration is whether the Equality Act 2010 reforms the existing law and makes it more effective with regard to elimination of discrimination.
While the Equality Act 2010 has consolidated the existing legislation in this area, there are also some areas where the Equality Act may be distinguished from previous legislation. Equality Act 2010 includes discrimination by association; this means that the law protects individuals who associate with others with protected characteristics. The Equality Act 2010 also extends indirect discrimination to disability discrimination and gender reassignment discrimination, which is different from the previous legislation. The Equality Act 2010 also protects individuals from harassment by third parties. In these areas, one can argue that the law provides an effective machinery for addressing discrimination in relation to different protected characteristics. Another difference is that the Equality Act 2010 includes hypothetical comparators to assess gender pay claims. These are some of the important differences between the earlier legislation and the Equality Act 2010.
It can be said that the Equality Act 2010 is an attempt to also improve the existing laws on discrimination and to that end, there are certain key differences between the Equality Act 2010 and the earlier legislation. Thus, for disability discrimination, the Equality Act 2010 extends the definition of direct discrimination to address a situation where a person has been given favourable treatment because of an incorrect belief that they have disability. The Equality Act 2010 also provides a wider definition for gender reassignment discrimination as compared to the Sex Discrimination Act 1975 so that the individual can claim protection of the law even if they have not undergone a gender reassignment process.
Hepple writes that the principal aims, and purposes of the Equality Act 2010 are to reduce different kinds of inequalities in the society, such as socio-economic inequalities, racial inequality, and gender equality; prohibition of victimisation based on certain protected characteristics; and providing equality of opportunity to individuals and groups of people. Indeed, the law does provide categories under which discrimination can occur and enumerates certain protected characteristics such as race, disability gender, and sexual orientation. There are nine protected characteristics in total: pregnancy and maternity; marriage and civil partnership; sexual orientation; sex; religion or belief; race; gender reassignment; disability; and age. These are discussed here briefly to understand the nature of these characteristics.
Provisions of the Equality Act
Age is a protected characteristic which is engaged with respect to employees who belong to a particular age group. However, employers may be able to justify both direct and indirect discrimination under certain circumstances; this is under section 13(2), which allows the employer to take defence where such discrimination is a “proportionate means of achieving a legitimate aim”. This is seen in one case where a solicitor was made to retire at 65, but the employer was held to have legitimate aims of retention of associate solicitors and workforce planning. This may be seen as a way of weakening the protection of the employee, but it can be counterargued that this is a way of balancing interests of the employees and the employers by providing the employers with some means for addressing their legitimate business concerns.
Disability is also a protected characteristic under the Equality Act 2010. Section 6 describes disability as any physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. There have been cases where diseases have not allowed to be shown as disabilities; for instance, in one case an employee was held to not have disability simply because they have type 2 diabetes. On the other hand, obesity was held to be disability if its effect is substantial and long term in impairing a person’s physical capacities and impedes in the ability to carry out day to day activities. There is a problem in how disability may be defined and how social model of disability may not be applied by courts in the absence of a clear definition of disability under the law. It may be noted that there is a lack of consensus on definitional issues related to in the medical community and the World Health Organisation. Therefore, it may be noted that there is potential for disregard of rights of those who have disabilities that are not clearly agreed upon under the law and by the medical fraternity. Under the Equality Act 2010, employers have been put under a duty to make reasonable adjustments which would make a job suitable for persons with disabilities. This is a positive duty relating to make a provision, criterion or practice applied by the employer, duty to make the physical features of a building conducive to disabled employees and providing auxiliary aids or services. One of the potential areas of concern with relation to disability rights protection under the Equality Act 2010 is that there is lack of recognition of chronic diseases. For instance, Oliver writes that despite considerable development in the social model of disability, which has led to much success for those who are afflicted with disabilities in different areas of their lives including employment, access to services, and promotion of disability as a civil rights issue, there is “increasing scrutiny both from disabled people and from others working in the field of chronic illness” in the area of non recognition of chronic diseases as disabilities.
Gender reassignment is a protected characteristic under section 7. It relates to transition of a man to a woman or vice versa, even though the person has not actually started the process of reassignment. Marriage and civil partnership as a protected characteristic under section 8. For example, an employee successfully argued that her dismissal was unfair because she was married to a particular man. Pregnancy and maternity is a protected characteristic under section 18. Therefore, during the protected period of pregnancy and even for a time after childbirth, unfavourable treatment because of her pregnancy, or pregnancy-related illness or maternity leave rights, would be considered to be a direct discrimination. The Equality Act 2010 uses a comparator for the assessment of whether treatment is discriminatory so that in case of dismissal, if the same decision would have been taken on the same grounds for the male employee, then the dismissal of the female employee is not a discriminatory act of the employer.
Race is a protected characteristic under section 9. It is considered to be one of the most common areas for discrimination. Previous to the Equality Act 2010, the relevant law was the Race Relations Act 1976. Race can be a complex phenomenon to define in a multicultural society like Britain; this is reflected in one case where Sikhs were held to be a racial group by reference to ‘ethnic origin’. It may be mentioned here that racial group has been defined in section 3(1) of the Race Relations Act 1976 as a “group of persons defined by reference to colour, race, nationality or ethnic or national origins”. One area of concern in this context is that of ethnicity and caste not being defined exactly in the context of race, which is discussed in the later part of the dissertation. At this point, this concern is being highlighted and later it will be discussed in greater depth.
Religion or belief is a protected characteristic under section 10. A number of decisions related to religious discrimination demonstrate the extent to which religious beliefs and rights are protected in the English legal system. For instance, in a case involving a magistrate who raised objections to sitting as a judge in cases involving custody of children with same sex couples based on his philosophical and religious objections, the court refused to agree that his religious beliefs were engaged because these did not impact how he lived his life. In a different case, the court allowed the engagement of belief in the matter where the claimant’s beliefs on environment were impacting how he led his life and therefore were considered to be worthy of legal protection. What these two cases indicate is that the courts should be satisfied in that the religion or belief of the claimant is important to how they live their lives. Interestingly, the court did not think so in Eweida v United Kingdom, in which a British Airways employee alleged discrimination for not being permitted to wear her Cross outside of her uniform. These cases can be seen as providing confusing or contradicting approaches to how courts view religion as a protected characteristic. This could also be due to the conflict between religion and belief as a protected characteristic of one individual with the rights of another individual.
Sex is a protected characteristic under section 1. Sex can be a ground for discrimination where a person is subjected to less favourable treatment based on their sex. In one case, the issue of sex discrimination against male employees was raised on the ground of a more restrictive dress code for male employees who were told that it was mandatory for them to wear collar and tie. However, the court held that sex discrimination was not engaged. Sexual orientation is a protected characteristic under section 12. This refers to the orientation towards persons of the same sex, persons of the opposite sex, or persons of either sex. In the context of sex discrimination, some of the important areas relate to rights of women. One of the areas of concern in this respect is the lack of pay parity which can has been expressed to be the “most glaring indicator of gender inequality in the labour market”. Although these words were expressed in the Canadian context, they can also be applied to any other country that has as yet not achieved pay parity. In this dissertation, this is one of the areas that is used to assess the working of the law.
The purpose of enumerating the protected characteristics is to provide the basis on which individuals may be able to assess whether some discrimination has occurred against them. Moreover, the protected characteristics are adopted to make sure that the question of discrimination is not left to be as open-ended as it is under the European Convention of Human Rights. In other words, discrimination has to be assessed based on these protected characteristics only and does not relate to any other grounds. What may constitute discrimination in context of the grounds of discrimination is therefore not open to interpretation. As there are nine clear protected characteristics, the individuals as well as organisations are able to identify the grounds of discrimination and the protected characteristics. It is possible for someone to be discriminated against under two or more protected characteristics, which is recognised by the Equality Act 2010. There are seven categories of discrimination under the Equality Act 2010. This includes direct and indirect discrimination.
Under the Equality Act 2010, there are provisions that make it clear that certain kinds of acts or conduct will be prohibited. Such conduct includes the different acts of discrimination which are unlawful under the Act. Direct discrimination is prohibited under section 13 and this occurs if a person treats another person less favourably than they treat or would treat a third person because of a protected characteristic. What is vital under the Equality Act 2010 is that the treatment must be because of the protected characteristic and that is why it would be prohibited. If the unfavourable treatment does not link to a protected characteristic, then the Equality Act 2010 is not engaged and one cannot claim direct discrimination. Discrimination need not always be direct and at times it can also be classified under the Equality Act 2010 as an indirect discrimination which is defined by section 19 as a rule which the employer applies to everyone but which has more impact on some groups than on others leading to a disadvantage caused by such differentiation; moreover, the claimant should feel it personally, as well as to the larger group to which he belongs. There is a comparator requirement made under section 23, for both the cases of direct as well indirect discrimination. This requires that the claimant be compared with someone else whose circumstances are not materially different from the claimant, apart from the protected characteristic. The purpose is to assess if a ‘like for like’ comparison can be made where the claimant was treated differently only because of the protected characteristic. Therefore, what is required in these cases of direct, indirect or dual discrimination is that the claimant must be compared with someone whose circumstances are not materially different from the claimant barring in the context of the protected characteristic.
The Equality Act 2010 defines discrimination arising from disability under section 15 as treating a person unfavourably because of reasons that arise in consequence of their disability. One of the important aspects to note here is that the employer is allowed to justify the discrimination if it is a proportionate means of achieving a legitimate aim. The Equality Act 2010 prohibits harassment which is defined in section 26 as offensive or intimidating behaviour towards a person, including use of sexist language or racial abuse, which aims to humiliate, undermine or injure a person or has that effect of injuring a person. However, it is not always simple to assess harassment in a given situation because there may be instances where the claimant may have misunderstood or even acted in an oversensitive manner. Therefore, as pointed out in one case, the tribunals are adopting an approach where they consider whether some behaviour was offensive or intimidating or not based on factual assessment of the tribunal. In Richmond Pharmaceuticals v Dhaliwal, the EAT held that while making such assessments, it is important for the tribunal to have regard to all the relevant circumstances as well as the context of the conduct in question.
Victimisation is defined in section 27 as detriment to a claimant who has done one of the protected acts. Victimisation may mean treating somebody less favourably than others because they tried to make, or made, a complaint about discrimination. To be clear, victimisation is defined in a narrow sense to include acting detrimentally to those who have brought discrimination proceedings or are giving evidence or information in such proceedings, or are doing any other thing for the purposes of or in connection with the Act, or are making an allegation of breach of the Equality Act 2010. Importantly, post-employment victimisation has also been termed as unlawful by the Court of Appeal.
One of the potential problems associated with the Equality Act 2010 is related to the Public Sector Equality Duty (PSED) under section 29 because it has been pointed out that the phrasing of the provision leaves the public sector officials with discretion as to the steps taken to achieve equality goals. This is because section 29 provides that the public sector officials have the duty to give ‘due regard’ to the need to achieve goals and not really to take active steps to achieve such goals. This makes for a situation where the public officials and bodies have discretion regarding the application of section 149 as they do not have the duty to take positive steps but merely to give due regard. Nevertheless, it is useful to consider the scope of the Public sector Equality Duty in Section 149 with reference to the police forces as this duty applies to require that police forces avoid unlawful discrimination, harassment, or victimisation against people with relevant protected characteristic. Therefore, it is unlawful for police officers to discriminate against individuals or harass or victimise them. It is also notable that the Equality Act 2010 (Specific Duties) Regulations enacted on 9 September 2011, requires public authorities to publish information on how they have complied with the public sector equality duty and to identify one or more objectives which they thought they should work to achieve.
In this section, the dissertation has discussed the provisions of the Equality Act 2010. To summarise this discussion, the Act identifies certain protected characteristics like race, gender, and disability. The Act prohibits the discrimination of any individual on the basis of their protected characteristics. The Act also provides certain remedies and protections to the individuals with protected characteristics. Both direct and indirect discrimination are prohibited under the law. Victimisation is also prohibited, which means that a person who complains against discrimination cannot be victimised for such complaint. In the next section, the dissertation will discuss the application of the law in various contexts and whether this law has been effective to achieve the goals of the Act.
In this section, the dissertation will discuss the application of the law in various contexts and whether this law has been effective to achieve the goals of the Equality Act 2010. The goals of Equality Act 2010, which is relevant to all organisations, are related to elimination of discrimination, harassment, and victimisation of people; advance equality of opportunity for all, including those with protected characteristics; and also foster good relations across all protected characteristics. The White Paper, ‘Framework for a fairer future’ set out the belief of the government that equality is "necessary" to individuals, society and the economy. This White Paper was a precursor to the increase in public debate on the enactment for such a law that would harmonise the existing piecemeal legislation and also strengthen the equality and anti-discrimination law of the UK. The ‘Framework for a fairer future’ White Paper identified persisting equality gaps in the society, including the following:
“gender pay gap stood at 12.6%, disabled people were 2½ times more likely to be out of work, people from minority ethnic communities were 15.5% less likely to find work than their “white” counterparts, 62% of people over 50 felt discriminated against in the job market and 60% of lesbian and gay school children experienced homophobic bullying: we needed to step up progress to meet equality goals.”
Some points that were made out in the White Paper were related to gender pay gap, racial discrimination in the obtaining of jobs, and homophobic based discrimination. These points provide us with some issues based on which Equality Act 2010 can be assessed for its effectiveness.
The first area that is taken in this section for the assessment of the Equality Act 2010 is gender pay gap. Gender justice has been a part of the wider discussion on equality and the issue of gender pay parity is considered to be a significant indicator of gender justice. The absence of pay parity has been based on empirical data that historically depicts lack of pay parity in the UK. A 2009 report of the European Commission Employment pointed out that one of the reasons for gender pay gap in the UK is the increasing employment of women in the part time jobs, while a higher proportion of men have access to full time jobs. Research also indicates that women are affected by child birth and women lose nine percent of their wages after the first child and sixteen percent after the second. The UK has addressed this problem first with the Equal Pay Act 1970, and now with the Equality Act 2010. As discussed in the dissertation before, it may be reiterated that the purpose of the law was to reduce inequalities and prevent victimisation at workplace. There are pay parity provisions being applied to both the private and public sector. The question is how this law is applied to ensure pay parity in the UK work sector.
In the UK, the application of pay parity has not been only with the Equality Act 2010 provisions but also with the European Union law, predominantly the Treaty for the Functioning of the European Union (TFEU), Article 157 (1). Also applicable is the Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the Implementation Of The Principle Of Equal Opportunities and Equal Treatment of Men and Women in Matters of Employment and Occupation also called the Recast Directive. These provisions have also been applied in the UK for security of pay parity for women, which makes it necessary to consider how the issue of pay parity is dealt with in the Equality Act 2010 and the EU law.
Article 157 (1) of the TFEU makes it is duty for all member states to ensure that the principle of equal pay for male and female workers for equal work or work of equal value. Importantly, in the UK, the jurisprudence around equal pay is also impacted by the EU courts’ jurisprudence on equal pay because this has been applied in the UK courts as well; thus, the word pay includes basic or minimum wage or salary and any other consideration in cash or in kind and the word workers is also interpreted by the European Court of Justice in broad terms. Practically, it is important to see the decisions of the European Court of Justice and domestic courts together for understanding how equal pay is protected because both are relevant to understanding how the law has been applied by these courts. The European Union law had primacy over the UK, which led to the practice evolving from the approaches developed by the Court of Justice. For example, a woman employee made a claim for equal pay under Article 157 (1) on the ground that her male predecessor was paid more than her for the same value of work and this claim was allowed by the court. At the time when this case came before the court, the Equal Pay Act 1970 was applicable, but Article 157 (1) of the TFEU, and not the Equal Pay Act 1970 was applied to direct the British court to dis-apply the national law and apply Article 157 (1). The terms ‘worker’ and ‘pay’ have also been interpreted broadly by the European Court of Justice; worker is “a person who, for a certain period of time, performs services for and under the direction of another person in return for which he or she receives remuneration”. In Eileen, the Court of Justice held that even travel facilities are included in the term pay. Pay has been interpreted to mean overtime supplements; and, bonuses.
The above jurisprudence is developed before the passage of the Equality Act 2010. This law provides that sex equality clause is included in terms of employment which do not already contain one as per Section 66(1). The sex equality clause applies to all terms of employment so that each term will be comparable as per Section 66(2)(a). In terms of equal pay for equal work, Section 65 is a replication of Equal Pay Act 1970 where one person’s equality of pay is compared with that of the comparator who does the same work, or work that is rated as equivalent, or work of equal value. Thus, the right to equal pay for equal work is applied where a person is employed on work that ‘is equal to the work that a comparator of the opposite sex does’ as per Section 64(1). The effect of the provisions is that if in a female employee’s contract, there is no term conferring a benefit on her that is contained in the comparable man’s contract, then the term is deemed to be included in the woman’s employment contract as well under Section 66(2)(b). Therefore, equal pay is calculated not on the basis of the worth of the overall contract in comparison with the man’s contract, but on the basis of each individual item taken in isolation. The concept of work that is comparable with the work being done by the comparator; the focus is on the job and not on the person performing it. Therefore, in practice, what is required for an employee to establish unequal pay is to establish that their work is of the same or broadly similar nature as that of a person of the opposite sex. The defence that is available to the employer in such cases is to prove that any differences are not related to sex and are a proportionate means of achieving a legitimate aim; this is a ‘material factor’ defence under Section 69 of the Equality Act 2010.
It is submitted that sex equality clause in Section 66 strengthens the gender equality regime at workplace beyond what is done under the European jurisprudence. Because the comparator is clearly provided in the law and the courts are able to assess whether some terms that are included in the comparator’s contract should also be inferred into the female employee’s contract.
The Equality Act 2010 also provided two other provisions to reduce the gender pay gap. Section 78 enables the Minister to make regulations requiring employers with at least 250 employees to publish information about the differences in pay between their male and female employees. However, this section did not come into force when the other parts of the Equality Act 2010 came into force because the government emphasised on a voluntary approach rather than a mandatory one. The Small Business, Enterprise and Employment Act 2015 and S 147 created a duty to make regulations, within 12 months, to bring Section 78 into force. Finally, this provision was made effective in 2017 with the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017, which requires all UK-based employers with 250 or more employees to calculate the gaps in pay between their female and male employees each year on a fixed date. There is some research to show that the reporting has led to positive changes for the increase in pay parity in UK based companies; thus, it can be said that in this respect, the Equality Act 2010 has been successful. However, this is limited to bigger organisations because it is applicable only to companies with at least 250 employees.
Second, the law also makes terms that try to prevent the person from disclosing or seeking to disclose information about his or her work as unenforceable in relation to making pay disclosures according to Section 77. If any action is taken by the employer against the employee as a result of this protection will be treated as victimisation under Section 27. These two measures aim to persuade employers to publish information about the steps that they have taken to provide equal pay for equal pay, and to protect the exchange of information between employees regarding the terms of their pay.
It is argued that the although the Equality Act 2010 seeks to provide a simple legislative formulation, it has given rise to considerable difficulties in employment tribunals and appellate courts. This argument is made on the basis of the difficulties that courts and tribunals still face with respect to the scope of the provisions when defences like the material factor defence and the extent of the defence allowed to the employers when the phrase ‘a legitimate aim’ for the company is not explained anywhere in the law.
In a recent case, the Court of Appeal held that for the comparator purpose, shop workers can be compared with warehouse staff. This is an important case because it also reflects on the way in which occupational gender segregation can be the reason for the pay gap between male and female employees. In this case, thousands of shop workers, who were mostly female, claimed historic pay inequity because of their work as shop workers being less paid for work of equal value to the work undertaken by their predominantly male colleagues working at depots. The occupational gender segregation angle is clear in this case because there is concentration of women employees in shops and male employees in depots and the latter were paid better than the former. In this case, the preliminary issue was whether or not the shop workers could compare their pay with the pay of workers at the depots. The Court of Appeal held that they were entitled to compare their pay with the pay of depot workers because common terms of employment apply. This is an important point because it adds another dimension to gender pay parity where female employees who are historically segregated in a less paying occupation are able to compare their pay with their male colleagues who are historically concentrated in a more paying occupation within the same organisation and with common employment terms. In this case, it can be seen how the Equality Act 2010 is allowing the courts to take a broad view of pay parity between male and female employees and to set up the conditions in which the female employees are able to achieve pay parity with their male colleagues even in the situations where the male colleagues may not be direct comparators of the female.
Another area in respect to which Equality Act 2010 can be assessed with respect to effectiveness is disability. One positive aspect of the law is that it does include ‘reasonable accommodation’ principle so that there are responsibilities and duties for employers to incorporate practices that aim to reduce the disadvantage that individuals with disability face “by application to them of conventional requirements or systems.” The purpose of anti-discrimination legislation would be to provide legal duties to provide reasonable accommodation to disabled persons.
One of the areas of practice where weaknesses in the law is exposed is that of the non recognition of the chronic diseases as disability which is seen in how the court has held that an employee cannot allege disability for type 2 diabetes. This is criticised because it fails to adopt the social model of disability. However, this may not be justified because the courts have accepted some diseases, particularly obesity, on the basis of the Section 6 which provides that substantial and long term impairment of physical capacities and impediment in the ability to carry out day to day activities is disability. This decision also suggests that the courts can be expected to explain what is disability based on the technical definition in Section 6, and in that sense there can also be inclusion of the social model of disability as seen in the case of obesity being included in the definition of disability.
Racial discrimination is another area where Equality Act 2010 can be assessed. Some evidence does suggest that there has been positive impact of the law for the reduction of discrimination on the basis of race. On the other hand, there is also research that suggests that students and staff of the black and ethnic minority continue to be disadvantaged in higher education institutions. One of the problems that is identified in research is that there is still a significant proportion of individuals of these communities not knowing about the protected characteristics in the Equality Act 2010.
Another criticism of Equality Act 2010 is that it does not include caste as a protected characteristic. This criticism becomes more substantiated because of the Enterprise and Regulatory Reform Act 2013 under which the British Government has committed to incorporating caste as ‘an aspect of’ the protected characteristic of race. However, there is a contested view of caste as a protected characteristic. The difficulty with not including caste in the list of protected characteristics is reflected in cases that have come before the Employment tribunals where people have been discriminated against on the basis of their caste, but the tribunal either decided that it could not define the treatment as discriminatory on the basis of caste (subsumed in race), or that it could define the treatment as discriminatory on the basis of treatment being discriminatory because of ethnic origins. The problem that can be seen here is that the court has to assess whether caste would fall into the scope of race but the court has decided to read this issue into the ethnic origin and does not conclusively decide that caste is part of race.
A criticism of Equality Act 2010 is that the expansion of number of characteristics leads to a situation where courts are not able to address the issues arising from all the protected characteristics not being equal and are increasing conflicts between different equality rights; the case of Ladele v Islington London Borough Council, is instructive in illustrating this point because in that case the protected characteristic of religion failed to protect the rights of the applicant because it conflicted with the right of others to a non-discriminatory registration of civil partnerships. In this case, the applicant had objections to civil partnerships on the basis of Christian faith but these objections were not taken into account. In any case, for the protected characteristic to arise, religious beliefs must be engaged; and in a case where the magistrate raised religious and philosophical objections to sitting as a judge in cases involving custody of children with same sex couples; this was disregarded. On the other hand, the European Court of Human Rights has taken a different approach from the English courts in Eweida v United Kingdom, where the court held that the British Airways decision to deny the right to an employee to wear her Cross outside of her uniform was discriminatory.
The conflict of rights that reflects on the hierarchy of rights is most visible in the area of the workplace rights and the balancing of conflicting interests is seen to be a challenge for the courts. The counterargument to this is that the hierarchy allows the courts to balance conflicting interests by giving some rights more pre-eminence than the others. What is seen in the decisions of the courts is that there is at times cases where the court may decide in favour of a right which is not even protected in the Act as seen in Redfearn v Serco Ltd, wherein a BNP candidate was dismissed on grounds of potentially racist beliefs, but the ECtHR held that right to association was allowed to prevail over protected characteristics.
Another criticism against the Equality Act 2010 is that the proliferation of rights under the Equality Act 2010 with its nine protected characteristics, give rise to more conflicts in the workplace. However, it is also argued that in such cases the court can decide on the legitimacy of discrimination and the admissibility of the claim. It can be submitted here that there is a way to reduce the likelihood of conflict between different rights given the proliferation of rights, is by not leaving the nature of protected characteristics open-ended. This is an important aspect of adoption of specific protected characteristics under the Equality Act 2010, in that the protected characteristics are specific in nature. The question of what constitutes discrimination is not open-ended and is not left open to interpretation by the courts; however, this appears to have been done by clearly pinpointing and identifying the nine protected characteristics so that the courts are not left in any ambiguity as to the protected rights under the law.
It can be argued that the criticism of the Equality Act 2010 on the basis that there is a proliferation of rights under the law and that this comes in the way of effectiveness of the is not justified because the courts can assess the ways in which they will balance the conflicting rights between different parties where both have claims to certain protected characteristics. This can be seen in the case of Ladele v Islington London Borough Council, where the public servant was not allowed to use his protected characteristic of religion to deny to perform his public duty of registering civil marriages. This can be seen as an example of how courts can balance rights even when two protected characteristics are in conflict. Therefore, in this regard, the Equality Act 2010 can be said to be effective in reducing discrimination by creating a structure that allows the courts to balance conflicting protected characteristics and protect individual rights.
There are cases where the protected characteristics may also conflict with rights of others. An example can be seen in the case of Smith v Trafford Housing Trust. In this case, an employee had been demoted due to views on gay marriages; the court held that exercise of a rights cannot be denied simply because these rights conflict with a protected characteristic. Even prior to the Equality Act 2010, the courts were at times required to balance such rights and they have done so; for example, in Croft v Royal Mail group plc, the court held that the employee’s claim of constructive dismissal after her request to start using the female toilet even while her gender reassignment was underway was denied, was not maintainable because the employer was well within the right to consider balancing of rights of the employee and female employees who may not be comfortable with the male employee undergoing gender reassignment visiting the same toilet. What this shows is that the task of balancing of conflicting interests is a given, with or without Equality Act 2010 and the listing of a number of protected characteristics in the Act does not lead to such conflicts, but that such conflicts are inevitable.
What is a positive attribute of the Equality Act 2010 is that it has definitely listed the protected characteristics, defined the contours of direct and indirect discrimination, and linked these to the concept of equality. This allows the courts to have certain and unambiguous principles on the basis of which the courts can protect the rights of those who claim these on protected characteristics.
Another weakness that is noted in the Equality Act 2010 with respect to elimination of discrimination is with respect to appearance. Appearance relates to the physical attributes of a person’s body which could be attributes that people are born with or even those that are a product of our choices where discrimination happens “when a person is treated better or worse on the basis of one or more of these physical attributes, in virtue of the visual perceptions they cause and the meaning or significance that is attached to them.” This is another area where the Equality Act 2010 can be said to have fallen short.
The recent Race Report published by the Commission on Race and Ethnic Disparities is also worth considering at this point as this report has observed that there is no significant institutional racism in the UK anymore. Although it is too soon to assess the academic response to this report, it is interesting that the findings suggest that there is little to no institutional racism in the UK. In the event that with time these findings are found to be justified, it could also be related to the effectiveness of the Equality Act 2010.
The assessment of Equality Act 2010 in this dissertation suggests that there are a number of positive outcomes of this legislation with respect to elimination of inequality. This is visible from the case law where the courts have been able to decisively pronounce in the favour of an individual claiming discrimination because of the clear identification of protected characteristics and the defining of the scope of discrimination and victimisation. This allows courts not only to protect people from being discriminated against but also to prevent victimisation on the basis of complaints of such discrimination by the individual.
While there are positive outcomes of this law, there are also some areas where the law is found to be wanting in preventing or reducing discrimination. It may be admitted freely before proceeding to list the areas of positive outcomes of the law for the anti-discrimination regime as well as the areas of concern that it is not possible to conduct a wide review of Equality Act 2010 in the space of a dissertation such as this one. The different strands of equality included in this law have different kinds of standards so that assessment of the effectiveness of all these standards is a significantly extensive task. As this was not possible for this researcher, the emphasis was on identifying some of the areas that could be assessed. This dissertation has focussed on the literature on Equality Act 2010 to identify the areas where the law has been found to be effective and others where the law has been thought to be wanting. These are enumerated in this section of the dissertation.
The one area where most academics have agreed with regard to the Equality Act 2010 is that it has been successful in consolidating the existing piecemeal legislation in the field of anti-discrimination regime. Prior to this law, there were many laws dealing with different contexts of equality. It is submitted that the benefit or advantage of this consolidation is that the principles underlying the different strands of equality may remain distinct to some extent, but the overarching principle remains the same. The overarching principle in the Equality Act 2010 is that of the protection of people against discrimination, harassment or victimisation. The case law studied for this dissertation has suggested that the courts are able to navigate the somewhat wide field of Equality Act 2010 with its nine protected characteristics, each involving different standards, by ensuring that the ultimate objective of preventing discrimination is achieved. This allows the courts to take a liberal approach to interpretation in some cases. For example, in this dissertation, the case of Asda Stores Ltd v Brierley was discussed, where the Court of Appeal was able to take a liberal interpretation of work to provide equal pay to female employees who had been historically paid lesser than their male peers because of gender based occupational segregation. It can be argued here that the consolidation of the anti-discrimination regime is not just beneficial from the perspective of practitioners who are provided ease of practice, but also for the ultimate objective of equality protection because the overarching principles of prevention of discrimination remain applicable to the different strands of equality in the same way.
Another point of appreciation for the Equality Act 2010 is that it improves on the existing legislation, including in some ways, the European law for equality. There are specific provisions in the Act such as inclusion of discrimination by association, extension of indirect discrimination to disability discrimination and gender reassignment discrimination, broader definition of gender assignment, and prevention of harassment by third parties where the Equality Act 2010 takes an improved approach to addressing discrimination in relation to different protected characteristics. Thus, it can be said that the Equality Act 2010 is an attempt to improve the existing laws on discrimination. Unlike the European Convention of Human Rights, the Equality Act 2010, the Equality Act 2010 does not leave the question of discrimination as open-ended so that what may constitute discrimination is not left open to interpretation. This works to aid both the employer and the employee, who are not left in any doubt as to the protected characteristics and the grounds of discrimination. If an employee has been discriminated against based on any of the characteristics, the courts are also clear on how such discrimination can occur based on the law.
With reference to specific strands of equality, the law does appear to have some areas of concerns that are revealed by literature and analysis of court decisions. One such area identified in the literature is with respect to disability discrimination. On one hand, the positive aspect of the law with respect to disability is that it includes ‘reasonable accommodation’ principle so that there are responsibilities and duties for employers to incorporate practices that aim to reduce the disadvantage that individuals with disability face “by application to them of conventional requirements or systems. On the other hand, the area of concern is that there is an absence of social model of disability approach because the definition of disability does not clearly incorporate this approach; the effect is that the model is not being applied by courts in the absence of a clear definition of disability under the law. This is an area where the law may have to be reconsidered because there has been considerable development in the social model of disability, and acceptance of this model for assessing equality in the context of employment, access to services, and promotion of disability as a civil rights issue. Chronic diseases have been recognised as causing disability under this model; however, the case law in the UK courts suggests that chronic diseases may not be recognised as disability causing.
Another area of concern is that of confusing or contradicting approaches as to how courts view religion as a protected characteristic. While part of the reason for this could be due to the conflict between religion and belief as a protected characteristic of one individual with the rights of another individual, this may need some reconsidering or reclarifying on when one individual’s belief overrides the belief or religion of another. With respect to gender equality, this dissertation found that there are some of the provisions of the law that have been effective in increasing the protection of rights of women in workplace. This is relevant to the outcomes in pay parity. It is also notable that the sex equality clause in Section 66 strengthens the gender equality regime at workplace beyond what is done under the European jurisprudence. Because the comparator is clearly provided in the law and the courts are able to assess whether some terms that are included in the comparator’s contract should also be inferred into the female employee’s contract. The law with respect to gender equality is strengthened by the Small Business, Enterprise and Employment Act 2015 and Section 147 read with the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017, which requires all UK-based employers with 250 or more employees to calculate the gaps in pay between their female and male employees each year on a fixed date. While research suggests that the reporting requirement has led to positive changes for the increase in pay parity in UK based companies, the weakness is that it is only applicable to bigger with at least 250 employees. With respect to race as a protected characteristic, one weakness that is noted in the law is with respect to caste which is not expressly included in protected characteristics, but which is demonstrated by literature to be a significant factor for discrimination for certain communities in the UK.
Some of the weaknesses in the law are practical in nature. For example, it is not always simple to assess harassment in a given situation because there may be instances where the claimant may have misunderstood or even acted in an oversensitive manner. Courts and tribunals have tried to navigate this difficulty by adopting an approach where they consider whether some behaviour was offensive or intimidating or not based on factual assessment of the tribunal. To that extent, it can be argued that the Equality Act 2010 allows courts to make such assessments. Indeed, the cases discusses in this dissertation do suggest that the Equality Act 2010 does allow the courts to take a broad view of certain provisions, such as seen in the pay parity cases where courts have taken broad view of comparators and work.
Finally, an important gap in the law is that there is still a significant proportion of individuals of communities that have protected characteristics that do not know about the protected characteristics in the Equality Act 2010. This was revealed recently in a study done by Hannah Atkinson et al, for the Royal Historical Society 2018.
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