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Guidance and Codes of Practice

Official guidance and Codes of Practice on the Equality Act 2010.

In summary: key guidance on the Equality Act

Non-statutory guidance

This tends to be shorter and more accessible, a lay person's guide:

More below: Non-statutory guidance.

Statutory guidance and Codes of Practice

These must be taken into account by courts as regards how the Equality Act should be applied, though not necessarily how it should be interpreted (below Legal effect):

More below: Statutory guidance and Codes of Practice and Legal effect.

Technical guidance

Like non-statutory guidance, this is not provided for in legislation. However it is more detailed and technical, and looks like a Code of Practice. It is linked off www.equalityhumanrights.com/en/advice-and-guidance/equality-act-technical-guidance and includes:

More below: Technical guidance.

Explanatory Notes

More below: Explanatory Notes.

Non-statutory guidance

This tends to be shorter and more accessible than other guidance, aimed at lay people rather than lawyers and professionals. The guidance is 'non-statutory' in the sense that it is not provided for in legislation.

"The non-statutory guidance ... is designed to be a first port of call for everyone who has an interest in equality. It is intended to be practical and accessible.
Wording in Statutory Codes of Practice, explaining how they differ from 'non-statutory guidance'.

Statutory guidance and Codes of Practice

Courts and tribunals are obliged to take these into account as regards how the Equality Act should be applied, but not necessarily how it should be interpreted. See below Legal effect of statutory guidance and codes.

"...[The Statutory Code of Practice] is the authoritative, comprehensive and technical guide to the detail of law. It will be invaluable to lawyers, advocates, human resources personnel, courts and tribunals, everyone who needs to understand the law in depth, or to apply it in practice."
Wording in Statutory Codes of Practice, explaining how they differ from 'non-statutory guidance'.

Statutory Codes of Practice: employment and services

As regards the obligation of courts to take the statutory Codes of Practice into account, see below Legal effect of statutory guidance and codes. They are issued by the Equality and Human Rights Commission (EHRC), and took effect on 6th April 2011 (SI 2011/857, previous codes were revoked by SI 2011/776). There is more about the Codes of Practice at Equality Act Codes of Practice (link to EHRC).

The Employment and Services Codes of Practice both have Supplements (at the same links above) identifying later legal developments up to March 2014. The Supplements are not part of the statutory Codes, presumably because the government is not willing to approve new statutory Codes of Practice - see below Technical guidance.

Statutory Guidance on definition of disability

As regards the obligation of courts to take this into account, see below Legal effect of statutory guidance and codes. For more on the 2011 guidance as regards stammering, including my comments, see 2011 Guidance on definition of disability. The 2011 guidance took effect from 1st May 2011.(SI 2011/1159).

Pre-Equality Act Codes of Practice

See below Pre-Equality Act Codes of Practice for older Codes of Practice, It is possible these may still be in force.

Explanatory Notes

These were issued with the Equality Act 2010 and give a section by section commentary on the Act, often with examples:

To a certain extent courts can take Explanatory Notes into account as an aid to interpretation of the statute.

Technical guidance

Summary

This is detailed guidance by the Equality and Human Rights Commission (EHRC), covering education and also the public sector equality duty. The courts can take the guidance into account, and it looks similar to statutory Codes of Practice, but it does not have the legal basis of statutory Codes of Practice. The EHRC page on it is www.equalityhumanrights.com/en/advice-and-guidance/equality-act-technical-guidance

Technical guidance issued

Technical guidance issued by the Equality and Human Rights Commission is linked off the EHRC website at www.equalityhumanrights.com/en/advice-and-guidance/equality-act-technical-guidance. It includes:

What is technical guidance?

Like non-statutory guidance, there is no statutory obligation on courts/tribunals to take technical guidance into account. Even so, courts/tribunals may be willing to look at it and pay some regard to it.

'This guidance is not a statutory Code issued under s.14 EA 2006, however it may be used as evidence in legal proceedings.'
Technical Guidance on Further and Higher Education, p.14.

Apart from being non-statutory, 'technical guidance' is similar to a statutory Code of Practice. Accordingly compared with other non-statutory guidance, technical guidance is more complex, less easily accessible to the lay person.

The Equality and Human Rights Commission started issuing technical guidance in 2012. This is because the Government decided that no more statutory Codes of Practice for Equality Act 2010 should be issued. Apparently the Government sees statutory Codes of Practice as 'bureaucracy' which it is keen to reduce. Statutory codes issued by EHRC cannot take effect unless approved by the Government.

The EHRC did not agree with the Government's stance and has issued what would have been Codes of Practice as 'technical guidance' instead. The EHRC says:

'Technical guidance is a non-statutory version of a code, however it will still provide a formal, authoritative, and comprehensive legal interpretation of the PSED and education sections of the Act. It will also clarify the requirements of the legislation.'
www.equalityhumanrights.com/en/advice-and-guidance/equality-act-technical-guidance

For more on technical guidance, see the 'Technical Guidance Introduction' heading at that link.

Note that unless revoked, it seems the existing pre-Equality Act statutory codes on schools, further and higher education and the Public Sector Equality Duty may also continue in force. See below Pre-Equality Act Codes of Practice.

Legal effect of statutory guidance and codes

Summary

Cases and discussion

2011 guidance on meaning of disability

SCA Packaging v Boyle, House of Lords, 2009.
The issue was the meaning of the word 'likely' in the legal definition of disability. Did it mean 'more probable than not' as the then statutory guidance said? The House of Lords held no, it was sufficient that something 'could well happen'. On the relevance of the statutory guidance on meaning of disability:

Baroness Hale: 'In this House, we start with a clean slate. The Guidance has, of course, to be taken seriously into account when it deals with the factual matters which are relevant to the application of the legal tests. It is common for statutory Guidance to try to explain, not only how the legislation should be put into effect by the people who have to apply it, but also what the legislation means. But that is simply being helpful to practitioners who are not lawyers and may never read the legal texts. Statutory construction remains a matter for the courts, not for Departmental Guidance. If the court considers that the Guidance is a mis-statement or mis-application of what Parliament has enacted, then it must say so.' (para 67)

Lord Rodger: '...while the Guidance can helpfully illustrate the way that a provision may work in practice, it cannot be regarded as an authority on a point of statutory interpretation. I would therefore put it on one side.' (para 36)

Accordingly, as regards what is now the 2011 guidance on meaning of disability:

Also, in December 2012, the Employment Appeal Tribunal said the way in which the guidance on the meaning of disability contrasts examples may be misleading: see 2011 guidance on definition of disability: Criticism by EAT.

Codes of Practice on Employment and Services

These are issued under s.14 Equality Act 2006 and 'shall contain provision designed (a) to ensure or facilitate compliance with the Equality Act 2010..., or (b) to promote equality of opportunity.' Under s.15(4) Equality Act 2006 a failure to comply with a provision of a code shall not of itself make a person liable, but the code 'shall be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant'. Also under EqA Sch 13 para 7 a person subject to the reasonable adjustment duty must have regard to relevant provisions of a statutory Code of Practice under s.14 EqA 2006 in deciding whether a step is reasonable.

In the Grosset case below the court considered the relevance of a statutory Code of Practice, but importantly the court's views were provisional as the issue was not argued before it. The majority of the court did see the Code of Practice as an aid to the interpretation of the Equality Act. However this was not by virtue of s.15(4) EqA 2006, whose effect was that the Code is a 'guide as to its [ie the Act's] proper application'. The minority, Arden LJ, instead saw the Code as irrelevant to interpreting the Act, like the House of Lords in SCA Packaging above.

City of York Council v Grosset (link to bailii.org) Court of Appeal, 2018
The Court of Appeal in this case decided that on a claim under s.15 EqA 2010 for discrimination arising from disability, the employer (assuming it knows of the disability) can be liable even though it does not know of the causal link between the disability and the reason for dismissal, eg misconduct or underperformance (see Knowledge of disability on this aspect of the case).

The majority in the Court of Appeal reached this conclusion not just (and indeed not primarily) on the basis of the Code of Practice. However it saw the Code as relevant:

'42. ....In the [Employment Tribunal], the EAT and before us it has been common ground between the parties that the Code of Practice is a relevant aid to interpretation of the EqA. There was no detailed examination on this appeal of the basis for this common approach. It seems to me that it is probably best explained by the facts that the Code of Practice was issued shortly after the promulgation of the EqA and was presumably the product of deliberation between the Commission and the department which sponsored the legislation, so that it can be regarded as a form of contemporanea expositio and a legitimate aid to interpretation: see Bennion on Statutory Interpretation, 7th ed., D. Bailey and L. Norbury, section 24.17. Contrary to what appeared to be suggested at some points in the argument, I do not think that section 15 of the Equality Act 2006, referred to below, has the effect that the Code of Practice is constituted an aid to interpretation of the statute, as distinct from a guide as to its proper application. However, since the appeal proceeded on the basis of an agreement between the parties that the Code of Practice could be treated as an aid to interpretation of the EqA, it is not necessary to examine the precise basis for this any further in this judgment. Arden LJ is right to point out at para. [68] below that we did not have the benefit of argument about it.'

Lady Justice Arden agreed with the majority on the interpretation of s.15 EqA 2010 (as regards knowledge of the causal link), but disagreed on using the Code of Practice as an aid to deciding its interpretation:

'68. My provisional and respectful view, however, is that to use the Commission's code of practice as an aid to construction, as Sales and Peter Jackson LJJ have done as a supplementary basis for their decision on this point, would be contrary to authority, the terms of section 15(4) of the Equality Act 2006 and the separation of powers, but as this matter was not argued I would leave this point open. It can then be considered in a case in which the issue needs to be decided (when it may be appropriate to invite submissions from the Commission itself).'

The upshot is that it is currently unclear whether a statutory Code of Practice is relevant in interpreting the meaning of the Equality Act. If it is relevant, it seems likely to be not because of any status as a 'statutory' code, but just as one of the documents evidencing the intention of the government and legislature when the Act was passed. It would only be as an aid to the court, and the court may or may not follow what the Codes say. In theory the position of Codes of Practice may be different from the 2011 statutory guidance on meaning of disability, whose predecessor the court said in SCA Packaging (above) is not relevant to interpretation. However in practice the courts are likely to try to reach a common, or very similar, approach for both the guidance and the Codes of Practice.

The majority in Grosset (and Arden LJ did not disagree) suggested that s.15(4) EqA 2006 constitutes the statutory Code of Practice as a guide to the proper application of the Equality Act, which would presumably mean that s.15(4) obliges the courts to take it into account as such. This seems consistent with the courts having to take a statutory Code into account in the same type of circumstance as set out in SCA Packaging above: namely 'when it deals with the factual matters which are relevant to the application of the legal tests', 'how the legislation should be put into effect', and 'the way that a provision may work in practice'.

Pre-Equality Act Codes of Practice

It is possible that older statutory Codes of Practice on the Disability Discrimination Act 1995 may remain in force until revoked. So far as I know, those below have not been revoked. Whether or not they remain in force as statutory Codes, in practice it seems more likely that courts will look at those old codes for which there is no newer technical guidance, namely the 2006 transport code, and the 2007 code on trade organisations, qualification bodies etc.

In any event, it must be borne in mind that they are not updated for changes made by the Equality Act!

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Last updated 19th January 2019