The Equality Act 2010 a decade on
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Marc Bloomfield
Catherine Casserley looks back over 10 years of the Act, highlighting its successes and failures.
When asked to write on the past 10 years of the Equality Act 2010 – highs and lows – I had to start by thinking overall about achievements. What has it done for equality (or, rather, inequality)? Legislation is, of course, only one tool to use in tackling systemic and ingrained inequality. But the current state of affairs has been encapsulated fairly neatly in a report published in October 2019 by UCL entitled Structurally unsound – exploring inequalities: igniting research to better inform UK policy. It states in its introduction:
[S]uccessive governments have put considerable resources into outlawing unacceptable behaviour and promoting a more inclusive society.
And there is much to show for this effort. The gender pay gap for full-time employees has fallen from over 17 per cent in the late 1990s to 8.6 per cent today, and the introduction of mandatory gender pay gap reporting is likely to drive yet further improvements. There have also been big improvements in public representation of minority groups with the number of black, Asian and minority ethnic (BAME) members of parliament growing from just 14 in 2005 to 52 in 2017. And the proportion of female BAME members of parliament has grown from just two, prior to 2010, to 26 in 2019.
Yet large inequalities remain. At 67.6 per cent, the proportion of BAME adults in work has increased significantly from the rate of 61.7 per cent recorded just a decade ago. But it still lags behind the rate recorded for the white population by 10.6 percentage points. And it is a similar picture on pay. In raw terms, the average hourly pay of black male graduates is 24 per cent lower than that recorded among white male graduates. And even when we control for the characteristics of the two populations and the jobs they do – the gap remains in place. That is, where we compare workers and jobs that differ only in terms of the colour of their skin, a pay gap of 17 per cent is still recorded.
Other examples abound. The disability employment gap remains stubbornly high at around 30 per cent, while single-parent households face the highest rates of poverty at 45 per cent and households headed by female single parents comprise almost half of all statutorily homeless households.
The persistence of such gaps reflects the fact that inequalities are deeply embedded in our society, permeating throughout our social structures and institutions (page 5).
I have no doubt that the Equality Act 2010 has enabled people to assert rights in areas that, not so long ago, were not covered by any anti-discrimination provisions at all.
So there has been some improvement, though to what degree that is a result of the legislation is questionable. I have no doubt, however, that the Equality Act 2010 has enabled people to assert rights in areas that, not so long ago, were not covered by any anti-discrimination provisions at all.
It is difficult to pick out single cases in those 10 years – some will have particular legal significance, others perhaps societal – but below are a few of what I consider to be the highlights, along with some of the lows, and the gaps that remain.
Highs and lows
In the context of disability, FirstGroup Plc v Paulley [2017] UKSC 4; May 2017 Legal Action 26 saw the Supreme Court consider the importance for wheelchair users of access to the space on the bus that is (nominally) reserved for them. Though it did not afford disabled people the absolute priority sought, it was an important case in that it required bus companies to do more and highlighted the reasonable adjustment duty and its anticipatory nature in the context of service provision (ie, service providers must think in advance about the changes they need to make to their services so as to make them accessible).
However, in Williams v Trustees of Swansea University Pension & Assurance Scheme and another [2018] UKSC 65; May 2019 Legal Action 23, the Supreme Court gave short shrift to the claimant and his claim of unfavourable treatment in respect of an ill-health retirement pension enhancement. The lead judgment, while emphasising the low threshold required to justify treatment under s15, went on to say that the unfavourable treatment had to be identified, which in this case was the awarding of the pension, and there was nothing intrinsically unfavourable or disadvantageous about this. The claimant’s argument depended on an artificial separation between the method of calculation and the award to which it gave rise. The only basis on which he was entitled to any award at this time was by reason of his disabilities. Had he been able to work full time, the consequence would have been not an enhanced entitlement, but no immediate right to a pension at all. In those circumstances, the award was not in any sense ‘unfavourable’, nor (applying the approach of the Equality Act 2010 code of practice: employment (Equality and Human Rights Commission (EHRC), January 2011)) could it reasonably have been so regarded.
This was a disappointment to those who had hoped that the Act could make a substantive difference to the way in which the broader impact of disability could be addressed – in this case, the practical consequences of having to work part time and thus having reduced income prior to taking ill-health retirement.
The two grounds that were already fairly well established in equality law – race and sex – continued to be the subject of considerable litigation. Race cases tend to be based on indirect discrimination. However, one of the most high-profile and impactful cases of direct discrimination – and an example of the Equality Act 2010 and the EHRC working in tandem – was the employment tribunal case of Howard v Commissioner of Police of the Metropolis Case Nos 2200184/2013 and 2202916/2013, 30 June 2014. The claimant brought claims of race and sex discrimination as a result of her treatment by the Met, her employer. She was subjected to discrimination over a period of nearly a year and the investigation into her grievance removed key findings about her treatment, which had been calculated in its effect. She received nearly £37,000 in injury to feelings (including aggravated damages) – an extremely high award.
As a result of the decision in this case, the EHRC launched an investigation into how staff at the Met were treated in respect of their complaints about discrimination. It found consistently poor practice and an expectation among staff that in raising discrimination complaints, you were ‘putting your head above the parapet’ (Section 20 investigation into the Metropolitan Police Service, EHRC, 8 September 2016, page 47).
In Chandhok and Chandhok v Tirkey UKEAT/0190/14/KN, 19 December 2014, meanwhile, it was held that ‘caste’ discrimination is capable of falling within the scope of s9 (race) for the purposes of a discrimination claim.
Meanwhile, in the field of sex discrimination, perhaps some of the most significant achievements have been in litigation based on equal pay and/or discrimination, which has seen mass claims brought on behalf of workers initially in the public sector and now in the private sector (most recently Asda). These, coupled with recent success in cases such as Ahmed v BBC Case No 2206858/2018, 10 January 2020 and the gender pay gap reporting requirements that have been brought into force, mean that there may at last be a positive shift towards equality in pay.
Despite the plethora of litigation, ageism remains one of the most overt and prevalent forms of discrimination.
As for the ‘newer’ grounds, which had been contained in regulations prior to the Equality Act 2010 consolidating the provisions, much of the litigation was initially taken up with age discrimination. These cases established the nature of justification for direct discrimination (different from indirect discrimination) and the scope of the test for indirect discrimination. Most significant of all (ironically) has been the lengthy litigation on pensions for judges – see, in particular, O’Brien v Ministry of Justice [2013] UKSC 6; [2013] 1 WLR 522, where, importantly, budget considerations were held not to be sufficient to justify discrimination. Yet despite the plethora of litigation, ageism remains one of the most overt and prevalent forms of discrimination – headlines such as ‘Age discrimination is rife in Britain, UCL study finds, as one in four over 50s report being unfairly treated’ (Telegraph, 4 April 2019) and ‘Over a third of Britons admit to discriminating against people because of their age’ (Independent, 19 August 2019) remain common.
In relation to religion and belief, there has been a gradually increased use to which the latter has been put, and a commensurate increase in publicity and thus awareness, ensuring that those whose lives are governed by their beliefs are protected in their employment from discrimination based on them. In Costa v League Against Cruel Sports Case No 3331129/2018, 21 January 2020, the employment tribunal held that the claimant’s veganism was a protected belief and subsequently the case was settled, with any damages being confidential, but the employer accepting that Mr Costa's actions were driven by his beliefs. Though the respondent did not contest that the belief was protected, the claim received huge publicity. It has resulted in others stepping forward to claim that their beliefs should be protected (most recently nudists - though this related to hate crime, it came hot on the heels of publicity over the Costa case).
There remains much to be determined in this area, though. For example, in Forstater v CGD Europe and others Case No 2200909/2019, 18 December 2019, it was held that the claimant’s ‘gender-critical’ belief did not satisfy what is known as the Grainger test for determining whether or not a belief is protected,1Grainger Plc and others v Nicholson UKEAT/0219/09, 3 November 2009. as it was not worthy of respect in a democratic society (this was because of the impact on trans women in particular). The claimant has sought permission to appeal from the Employment Appeal Tribunal.
One of the most high-profile sexual orientation cases was that of Bull and another v Hall and another [2013] UKSC 73. Though initially brought under the Equality Act (Sexual Orientation) Regulations 2007 SI No 1263, by the time it reached its end, the Equality Act 2010 was in effect and the Supreme Court referred to that Act’s provisions as well. It concerned the refusal of a double bed by B&B owners (who said that they ran their business along Christian lines and that the B&B was also their home) to a gay couple who had entered into a civil partnership. The court at first instance found direct discrimination on the basis of sexual orientation. The couple who ran the B&B appealed unsuccessfully to the Court of Appeal ([2012] EWCA Civ 83) and the Supreme Court.
A significant – and also, it seems, one of the most controversial – provision of the Equality Act 2010 has been the definition of gender reassignment, relying as it does not on a medical process of reassignment of gender but on where an individual is ‘proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex’ (s7) – a very different test from that in the Gender Recognition Act 2004. In De Souza E Souza v Primark Stores Ltd Case No 2206063/2017, 22 December 2017, the claimant, who was a trans woman, was awarded £25,000 for injury to feelings, plus other damages, for harassment and direct discrimination when she was ‘outed’, by being called Alexander instead of Alexandra, and was also misgendered, as well as having other insults directed at her. The legislation afforded comprehensive rights for those who are trans.
And then there were the cases that had to be brought because of the apparent drafting errors – for example, in victimisation. In Jessemey v Rowstock Ltd and another [2014] EWCA Civ 185; September 2014 Legal Action 38, the Court of Appeal stepped into the breach, stating that ‘on a natural reading of the relevant provisions of the 2010 Act, taken on their own and without reference to any contextual material, post-termination victimisation is not proscribed’ (para 28) but that ‘once the proper contextual materials are considered it seems … equally clear that that is not the result which the draftsman intended’ (para 29).
The public sector equality duty (PSED – s149), meanwhile, has had its ups and downs as far as achieving change is concerned (and the wording leaves something to be desired), but there have been some real successes in which government and public authorities have been held to account for failing to consider the equality implications of their decisions. See, for example, Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345; May 2014 Legal Action 33, the first and successful challenge to the decision to close the independent living fund for disabled people, and more recently R (Ward and others) v Hillingdon LBC and Equality and Human Rights Commission (intervener); R (Gullu) v Hillingdon LBC and Equality and Human Rights Commission (intervener) [2019] EWCA Civ 692; May 2019 Legal Action 44, which involved a breach of the PSED in respect of a housing policy that required residence requirements adversely affecting Travellers and refugees.
Not there yet
The duty contained in s1, requiring public authorities to take socio-economic inequality into account in respect of their policies, remains uncommenced in England.
There remain provisions of the Equality Act 2010 that have yet to be brought into force. While the duty contained in s1, requiring public authorities to take socio-economic inequality into account in respect of their policies, has been implemented in Scotland, and there is a consultation currently underway relating to it in Wales, it remains uncommenced in England. Meanwhile, despite the extensive consultation that has already been carried out, disabled people have yet to see the reasonable adjustment duty implemented, permitting them to make adjustments to the common parts of premises (Sch 4 para 5). Discrimination on the basis of more than one protected characteristic (s14) also remains on the statute but is unimplemented.
And some significant provisions were repealed following the coalition government’s Red Tape Challenge that began in 2011: questionnaires (s138);2Questionnaires enabled those who considered that they may have been the subject of unlawful treatment to ask questions of potential respondents/defendants to find out more information. This could potentially confirm the basis of a case or rule it out. and recommendations that go beyond the individual complainant, thus removing the power to make systemic change (s124(3)).
Meanwhile, there are areas that have been brought into force but remain underused. For example, the prohibition on pre-application questions in respect of disability (s60) has seen little case law on its use.
Looking ahead
There are also areas that pose challenges for the future. For example, while those who are transgender fall within the definition in s7, those who are gender-fluid, non-binary or intersex do not readily fit within that definition, nor would they find protection in any other part of the Act (it is unlikely that they would fall under – or indeed wish to bring themselves within – the scope of s4 (belief)); and those who volunteer on a structured basis but fall outside the scope of employment remain uncovered by the Act’s provisions (see in this respect X v Mid Sussex Citizens Advice Bureau and another [2012] UKSC 59; [2013] 1 All ER 1038).
Nevertheless, the Equality Act 2010 is, despite its flaws, a vital piece of legislation, affording rights and imposing responsibilities that are essential to the workings of a just society. Given the new landscape in which we find ourselves, it will be important to ensure that its provisions are not subject to further repeal, but that they are improved at the least.
 
1     Grainger Plc and others v Nicholson UKEAT/0219/09, 3 November 2009»
2     Questionnaires enabled those who considered that they may have been the subject of unlawful treatment to ask questions of potential respondents/defendants to find out more information. This could potentially confirm the basis of a case or rule it out. »

About the author(s)

Description: Catherine Casserley - author
Catherine Casserley is a barrister at Cloisters.