Equality Act 2010 (Equality Bill)

Non-statutory guidance and also draft statutory guidance/Codes on the definition of disability and on employment and services have been published.

When does it come into force?

Most of the Equality Act is to come into force on 1st October 2010, as intended by the previous Labour government. However, some parts such as the single public sector equality duty will come into effect later, and some provisions may not come into effect at all. Around 27th August the Government published more detail as to what is to come in on 1st October, and which provisions the Government is still considering. For more, see Equality Act 2010: when will it come into force?

How will the Act change the law?

Some of the main changes relating to disability discrimination law are as follows:

Objective justification test

For some types of discrimination, an organisation (employer, service provider etc) has a defence if it can 'justify' how it treated the disabled person. The different tests currently used will be replaced by a single objective 'justification' test. The organisation will have to show that its conduct was a 'proportionate means of achieving a legitimate aim'.

• In employment, this should be a higher threshold than the present justification test. Employers will not find it so easy to justify less favourable treatment of employees and potential recruits (More on new justification test for employment..);
• As regards discrimination in providing services (by shops, banks, public authorities etc), comparison with the present test is more difficult. Under the new test, service providers may sometimes find it easier to at least put up an argument that less favourable treatment of someone who stammers is justified. (More on new justification test for service providers..).

The new justification test is to come into force on 1st October 2010.

More detail on changes to: Employment Services Who is protected Education Disability equality duty

Remedying the Malcolm case

A decision by the House of Lords in LB Lewisham v Malcolm severely curtailed some rights to claim for disability discrimination. The full effect of the case has yet to be established by the courts.

However, the Equality Act aims to shift the position back to a more balanced approach, giving disabled people wider rights, but subject to the employer etc being able to 'justify' its conduct. This is being achieved by the introduction of new ways to claim for disability discrimination - called 'discrimination arising from disability' and 'indirect discrimination'. Expected to come into force: 1st October 2010. (More on New heads of discrimination.)

Pre-employment inquiries

There are new rules against employers from asking job applicants disability-related questions, though this is subject to major exceptions. Expected to come into force: 1st October 2010. (More on pre-employment enquiries)

Single equality duty

At the moment there are three separate 'public sector equality duties' applying to public bodies. These are for race, disability and gender. Under the Equality Act 2010 there is to be a single public sector equality duty which will also embrace other grounds such as sexual orientation and religious belief, as well as the existing grounds. Not only the scope but also the content of the duty will be changed, for example there is likely to be a requirement to publish workforce disability information. A consultation document was issued in August 2010. Expected to come into force: April 2011 and (in part) April 2012 (More on single Public Sector Equality Duty.)

Discrimination by association and perception

Direct discrimination or harassment based on association or perception are to be made unlawful, or in some cases more clearly unlawful. This might apply for example where a friend of a disabled person is harassed, or where an impairment does not actually have a substantial effect but someone thinks it does. This change implements a European Court decision in Coleman v Attridge Law, but also goes beyond it. Expected to come into force: 1st October 2010. (More on discrimination by association and perception...)

Reasonable adjustments by service providers

It will be easier to claim reasonable adjustments from service providers Expected to come into force: 1st October 2010. (More on lower threshold for reasonable adjustments).

Definition of disability

The Government is not broadening the definition of disability as recommended by the Disability Rights Commission, but the Act will remove the list of 'capacities' Expected to come into force: 1st October 2010. (More on changes to definition of 'disability'...)

Recommendations by Tribunals

A tribunal will be able to make a recommendation benefiting the wider workforce, even if it is no longer relevant for the individual claimant. This is most likely to happen where the individual has left the employer. Expected to come into force: 1st October 2010? (More on recommendations.)

Dual discrimination

Claims for direct discrimination on two combined grounds (but no more than two) are to be allowed - e.g. discrimination for being a disabled woman. Expected to come into force: possibly April 2011, but not yet decided. (More on dual discrimination.)

Auxiliary aids as reasonable adjustment for schools

Schools and LEAs will have a duty to provide an auxiliary aid or service where reasonable. It is not yet known when the provision will come into force. (More on new auxiliary aid duty...)

Statutory guidance and Codes of Practice

Statutory guidance on the definition of disability, and also Codes of Practice, have particular legal relevance in that legislation says tribunals and courts must take them into account. However, the guidance and Codes are not authoritative statements of law.

Draft guidance on definition of disability - consultation

The Government Equalities Office has published for consultation a revised draft of the 'Guidance on matters to be taken into account in determining questions relating to the definition of disability', to reflect the Equality Act 2010. The consultation closes on 31st October 2010: www.odi.gov.uk/working/equality-bill.php.

I haven't read the draft yet, but it seems to include two examples on stammering (pages 19 and 42) similar to those in the present 2006 version of this guidance.

Draft Codes of Practice: employment and services

The Equality and Human Rights Commission (EHRC) has published consultation drafts of two Codes of Practice relevant to disability, one on employment, and the other on services, public functions and associations. Final versions of these Codes should be available soon.

The consultation drafts are at www.equalityhumanrights.com/legislative-framework/equality-bill/equality-bill-codes-of-practice-consultation/. The consultations closed in April.

A key feature of the draft Codes is that all the discrimination strands (sex, race, disability etc) are covered in the one document, like the Equality Act itself. There are no longer to be separate Codes of Practice on disability. The next stage is that the EHRC will lay final versions of the Codes before Parliament.

Draft Codes of Practice on education, the public sector equality duty, transport and housing have yet to appear.

Non-statutory guidance

Short guides to the Equality Act have been produced by the Government Equalities Office and ACAS. More detailed guidance has been produced by the Equality and Human Rights Commission.

This guidance is 'non-statutory' in the sense that it is not provided for in legislation, unlike the guidance on definition of disability and the Codes of Practice above.

"Equality Act 2010: What do I need to know?"

The Government Equalities Office is publishing a series of guides which it calls Equality Act 2010: What do I need to know? (link to equalities.gov.uk).

It includes summary guides and "Quick Start" guides to the key changes in the law, and is produced by the Government Equalities Office in partnership with the British Chambers of Commerce, Citizens Advice, ACAS and the Equality and Diversity Forum. There are guides for individuals, businesses, public sector, and voluntary and community sector

ACAS guide for employers

ACAS has published a 'Quick Start Guide for Employers' (link to ACAS).

EHRC guidance

The Equality and Human Rights Commission has published more detailed guidance to help explain the Equality Act and provide practical examples on how the law has changed: www.equalityhumanrights.com/advice-and-guidance/equality-act-guidance/

There are guidance documents (Word doc and ,pdf) and also web-based guidance. That published so far is for

• employers,
• workers,
• service providers and
• service users.

Guidance for education providers and students is due to be added in September.

Other consultations

Single equality duty

A consultation document was issued in August 2010 setting out details of the Coalition Government's proposals for the Single Equality Duty.

Streamlined questionnaire procedure

There was a Government Equalities Office consultation on a new streamlined procedure for obtaining information about potential discrimination cases - the 'questionnaire procedure'. One way in which the Equality Act 2010 streamlines discrimination law is by replacing a series of nine individual questionnaires about possible discrimination (for sex, disability, sexual orientation etc), with a single set of paperwork (guidance and forms) for all types of discrimination. The consultation is at www.equalities.gov.uk/news/new_streamlined_procedure_for.aspx

Passage through Parliament

For some of the changes and clarifications made to the Equality Bill during its passage through Parliament, see Equality Bill: passage through Parliament.

Proposed changes menu

Main pages:

Proposed changes
Equality Act 2010

Particular areas:

Disability
Wider 'disability' definition?
Employment
Services
Education
Disability Equality Duty
'NEFB Framework'
Basic equality statement
Remedying Malcolm
DDA 2005