The Equality Act 2010 Lessons learned from Great Britain Glynis Craig Senior Lawyer 1 July 2011

The Evolution of the Act Discrimination Law Review (DLR) launched Feb 2005 Equalities Review launched Feb 2005 to examine persistent inequalities DLR consultation proposals June 2007 with three goals: Simplifying the law Harmonising the law across protected characteristics Making the law more effective e.g. Disability arising from discrimination, disability and health questionnaires, increased scope (association); new tribunal powers

The Evolution of the Act Improvements to existing equality law were necessary to: Simplify : Replacing 40 years of discrimination law - 35 acts, 52 statutory instruments, 13 codes of practice, 16 EC directives with one piece of legislation a large volume of equality legislation seeks to harmonise upwards the levels of protection Improve effectiveness: the Act creates enhanced mechanisms to overcome systematic discrimination by improved public sector duties and positive action measures Modernise: the Act introduces a range of new measures to modernise equality law and make it fit for the 21 st century

The Evolution of the Act 26 June 2008: Harriet Harman announced the government’s proposals for the Equality Bill. 27 April 2009: the Government published the Equality Bill. 6 April 2010: the Equality Bill completed its parliamentary process, as MPs approved all Lords amendments. 8 April 2010: the Bill received Royal Assent. 12 April 2010: Parliament dissolved pending General Election

The Key Achievements The proposed improvements in the bill as enacted can be grouped as follows: -Improved protection for particular groups -Increased scope of prohibited discrimination -New Public duties to reduce systemic inequality and discrimination; -Improved positive action provisions; -Improved powers of tribunals.

The Key Achievements Improved protection for particular groups Disabled people Age groups Women Lesbian gay and bisexual people Transsexual people People with/without religious or philosophical beliefs People from ethnic minorities

The Key Achievements Increased scope of prohibited discrimination Equality law has been modernised by the: -Extension of discrimination by association and perception to all protected groups in relation to direct discrimination and harassment (this includes carers); -Positive Action - On 6 April 2011 Provisions in the Equality Act 2010 related to positive action in recruitment and promotion were commenced. These voluntary provisions cover the use of positive action in matters of recruitment and employment and can be used by an employer to address under-representation or other forms of disadvantage within the workforce in a tie break situation

The Key Achievements Improved powers of tribunals In terms of changes practices in society, the Act has improved the powers of Employment Tribunals. They will be able to: -provide remedies to the claimant; -Make recommendation to the employer for the benefit of the claimant; -Make recommendations to the employer which are directed at reducing adverse impact on the wider workforce. For example recommendations could be made to: -Introduce an equal opportunities policy; -Retrain staff on equality issues.

Public sector equality duty - General duty Scheduled public authorities must, in the exercise of their functions, have due regard to the need to - –Eliminate discrimination, harassment, victimisation and any other conduct prohibited by the Act –Advance equality of opportunity –Foster good relations Duty applies to bodies which are not public authorities but which exercise public functions

What does ‘due regard’ mean? Advancing equality of opportunity –Removing or minimising disadvantages experienced by persons who share a protected characteristic –Taking steps to meet the needs of persons who share a protected characteristic –Encouraging persons who share a protected characteristic to participate in public life or other activity in which participation is disproportionately low Good relations –Tackling prejudice between groups –Promoting understanding between groups

Specific duties Section Ministerial power to make regulations impose specific duties to help public authorities meet their ‘general duty’ The initial proposals for the specific duties – –Transparency – public authorities required to publish data on equality in relation to their workforce and services they provide –Equality outcome objectives - public authorities will be required to set equality outcome objectives, informed by the evidence and data they publish

PSED Proposals- regression or progression? The existing PSED Applies to race, gender and disability Emphasis on promoting equality of opportunity and good race relations Specific duties prescriptive Restricted to public authorities and in relation to disability bodies carrying out public functions. The new PSED Integrated - applies to all protected characteristics Emphasis on advancing equality of opportunity and fostering good relations Specific duties less prescriptive Applies to any body which carries out a public function.

Specific Duties -Different nations have approached the matter differently. Welsh duties in place. England and Scotland are awaiting new regs to be drafted. -The Government say – “The new draft regulations will focus on cutting bureaucracy and increasing transparency in order to free up public bodies to do what is appropriate in their circumstances, to take responsibility for their own performance and to be held to account by the public”. -Courts are primarily interested in due regard and will not find that a public authority has acted unlawfully because it has failed to follow the regulations. However, failure to follow the regs can constitute evidence that due regard has not been had.

Commencement of the Act 1 October 2010: Most of the Act came into force April 2011: single, integrated Public Sector Equality Duty – Government consulting now on specific duties Government is still considering: –auxiliary aids in schools –age discrimination in services and public functions and associations –diversity reporting by political parties –Civil partnerships on religious premises –liability on employers for harassment of their employees by their parties over whom they have no direct control

Not to be brought into force Provisions relating to dual discrimination The socio-economic duty Gender pay reporting measures. Government is working with business to encourage the publication of equality workforce data on a voluntary basis.

Areas of uncertainty/challenges Discrimination because of association with someone who is perceived to have a protected characteristic Harassment on grounds of sexual orientation, religion and belief, pregnancy, maternity and gender reassignment Proposing to undergo gender reassignment Gender recognition certificates and single sex services/insurance Religion and belief GOR Exclusions - immigration

Conclusions Too early for cases reaching the higher courts The importance of political will Significant achievement and an important piece of legislation to act as a model for other jurisdictions.

‘Building a society built on fairness and respect where people are confident in all aspects of their diversity.’