Equality Act in force today, but ‘socialism’ clause looks doomed

1 October 2010 by Adam Wagner

Most of the Equality Act 2010 comes into force today. But whilst 90% of its provisions are now operating, the Act has been controversial and some key aspects may never see the light of day.

The Equality and Human Rights Commission have published a fully featured online guide to the Act, a video, guidance on good practice and an Equality Act starter kit. Afua Hirsch in the Guardian summarises the main provisions here, as does the BBC and the Human Rights in Ireland Blog. The Law Society has produced a practice note for solicitors.

The progress of the Act, which was passed in the last days of the New Labour government, has been somewhat rocky. Its aim was to consolidate what until now has been a messy jigsaw of 116 pieces of legislationand further harmonise UK law with the four key EU Equal Treatment Directives. It is no secret that the Conservative Party were opposed to some of its provisions (see our previous post), including the those forcing public authorities to take socio-economic factors into account when allocating their resources.

The ‘public sector equality duty‘ is one provision which will not come into force today, and may never do so, at least in the form originally intended. Section 1 of the Act imposes a duty on public bodies to “have due regard to the desirability of exercising [their functions] in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage”. Polly Toynbe, a commentator, called this “socialism in one clause“. It could also be seen as the often mooted human right to money. The duty was due to come into force in April 2011.

But, unsurprisingly, the socialism clause is to be effectively scrapped (see our post). The new government has been rapidly distancing itself from the public sector equality duty and, in the introduction to a recently announced consultation on the clause, said that it does not intend to “prescribe how public bodies go about their business“, but rather will put in place a framework that “empowers citizens to scrutinise the data and evidence on how their public services perform.”

So the duty has been transferred to the Big Society (that is, the public) ,which will have to do the legwork in order to hold authorities to account on equalities. This will be a blow to equalities campaigners, but public bodies will be relieved to be free of a potentially onerous and time-consuming duty.

Other duties, such as the requirement for big businesses to report on gender pay gaps, are also being reviewed. The Fawcett Society, an equalities campaigning group, have branded the Act “toothless” for omitting this as well as the positive action clause, which allows companies to positively discriminate in recruitment. The society argue that “Watering down equality law in a recession weakens what little protection some of the most marginalised have.” But again, businesses will be relieved at having escaped an extra financial burden.

Teresa May, the minister for women and equality as well as home secretary, puts the government’s case in this editorial. She says that the Act represents a “milestone” in the journey towards equality, but also stresses that “we also need to recognise that changes in the law alone will not be enough – we need to use many different levers to help close the gender pay gap“. In other words, imposing new rules should be only one plank of a larger equalities strategy.

The provisions which are coming into force today are:

• The basic framework of protection against direct and indirect discrimination, harassment and victimisation in services and public functions; premises; work; education; associations, and transport.
• Changing the definition of gender reassignment, by removing the requirement for medical supervision.
• Levelling up protection for people discriminated against because they are perceived to have, or are associated with someone who has, a protected characteristic, so providing new protection for people like carers.
• Clearer protection for breastfeeding mothers;
• Applying the European definition of indirect discrimination to all protected characteristics.
• Extending protection from indirect discrimination to disability.
• Introducing a new concept of “discrimination arising from disability”, to replace protection under previous legislation lost as a result of a legal judgment.
• Applying the detriment model to victimisation protection (aligning with the approach in employment law).
• Harmonising the thresholds for the duty to make reasonable adjustments for disabled people.
• Extending protection from 3rd party harassment to all protected characteristics.
• Making it more difficult for disabled people to be unfairly screened out when applying for jobs, by restricting the circumstances in which employers can ask job applicants questions about disability or health.
• Allowing claims for direct gender pay discrimination where there is no actual comparator.
• Making pay secrecy clauses unenforceable.
• Extending protection in private clubs to sex, religion or belief, pregnancy and maternity, and gender reassignment.
• Introducing new powers for employment tribunals to make recommendations which benefit the wider workforce.
• Harmonising provisions allowing voluntary positive action.

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Related posts:

• E-disclosure rules finally enter the 1990s
• Goodbye to the public sector equality duty?
• Major new equality laws under threat from new government