Equality Act 2010

Introduction

The Equality Act 2010 is the principal legislative framework for protecting individuals from discrimination and promoting equality in the United Kingdom. It consolidated and harmonised over 116 separate pieces of anti-discrimination legislation, including the Equal Pay Act 1970, the Sex Discrimination Act 1975, the Race Relations Act 1976, and the Disability Discrimination Act 1995. The Act creates a unified legal framework covering nine protected characteristics, establishes different types of unlawful discrimination, imposes a public sector equality duty, and creates the Equality and Human Rights Commission. The Act represents a major constitutional statement of the value of equality and the commitment to eliminating discrimination in all its forms.

Protected Characteristics

The Equality Act 2010 protects individuals from discrimination on the basis of nine protected characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race (including colour, nationality, and ethnic or national origins), religion or belief (including lack of belief), sex, and sexual orientation. The scope of protection varies by characteristic: for example, the duty to make reasonable adjustments applies only to disability, and the protection against direct discrimination applies to all characteristics while indirect discrimination does not apply to pregnancy and maternity. The Act provides protection across a range of contexts, including employment and occupation, education, the provision of goods, facilities and services, the exercise of public functions, premises, and associations (including private clubs).

Types of Discrimination

The Act prohibits several distinct forms of discrimination. Direct discrimination occurs when a person is treated less favourably because of a protected characteristic. Indirect discrimination occurs when a provision, criterion, or practice puts persons sharing a protected characteristic at a particular disadvantage compared with others, and the provision cannot be justified as a proportionate means of achieving a legitimate aim. Harassment is unwanted conduct related to a protected characteristic that has the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment. Victimisation occurs when a person is subjected to a detriment because they have done a protected act (such as bringing a discrimination claim or giving evidence). The Act also prohibits discrimination arising from disability (treating a disabled person unfavourably because of something arising from their disability, without justification) and imposes a duty to make reasonable adjustments for disabled persons. Combined discrimination (discrimination on the basis of a combination of two protected characteristics) was initially provided for but the relevant provision was never brought into force and was subsequently repealed.

Public Sector Equality Duty

Section 149 of the Equality Act 2010 imposes a public sector equality duty (PSED) on public authorities and on private bodies exercising public functions. The duty requires that, in the exercise of their functions, public authorities must have due regard to the need to eliminate discrimination, harassment, victimisation, and any other prohibited conduct, to advance equality of opportunity between persons who share a relevant protected characteristic and those who do not, and to foster good relations between such persons. The duty covers all protected characteristics except marriage and civil partnership (which is covered only for the elimination of discrimination). The duty is a process duty rather than a results duty: it requires public authorities to consider equality implications when making decisions, but it does not dictate particular outcomes. The courts have developed extensive case law on the PSED, holding that due regard must be exercised consciously, rigorously, and with an open mind, and that it must be exercised before the decision is made rather than as a retrospective justification. The PSED has been applied in a wide range of contexts, including budget decisions, planning, education, and healthcare.

Equality and Human Rights Commission

The Equality and Human Rights Commission (EHRC) was established by the Equality Act 2006 and began operating in 2007. It is the statutory body responsible for enforcing the Equality Act 2010 and promoting human rights in England and Wales (with separate commissions for Scotland and Northern Ireland). The EHRC has a range of enforcement powers, including the power to conduct inquiries into unlawful discrimination, to issue unlawful act notices, to enter into binding agreements with organisations to secure compliance, and to bring judicial review proceedings. The Commission also has powers to bring proceedings in the employment tribunal in its own name in cases of serious or persistent discrimination. The EHRC issues statutory codes of practice and guidance on the Equality Act, which are admissible in evidence in legal proceedings. The Commission has been active in major strategic cases and inquiries, including its inquiry into racial discrimination in the workplace and its role in challenging the Windrush scandal. The EHRC was designated as the national equality body under EU law (prior to Brexit) and continues to fulfil this role under domestic law.

Positive Action

The Equality Act 2010 permits positive action measures designed to alleviate disadvantage or to meet the particular needs of persons sharing a protected characteristic. Section 158 permits positive action where the action is a proportionate means of achieving a legitimate aim, and where the persons in question are at a disadvantage, have particular needs, or are under-represented. Section 159 specifically permits positive action in recruitment and promotion, allowing an employer to treat a person more favourably because of a protected characteristic where the candidates are equally qualified and the employer reasonably thinks that the protected group is under-represented or suffers a disadvantage. These provisions are carefully circumscribed to avoid unlawful positive discrimination, which remains prohibited. The permissive character of the positive action provisions means that employers and public authorities may take action but are not required to do so. The provisions have been used in a range of contexts, including outreach programmes, targeted training, and guaranteed interview schemes.

Exceptions and Justifications

The Equality Act 2010 contains a number of exceptions and justifications that limit the scope of protection. Occupational requirements allow employers to require that a person has a particular protected characteristic where this is a genuine and determining occupational requirement (such as employing a woman to provide personal care for women). Organisations relating to religion or belief are permitted to restrict employment to co-religionists in certain circumstances. Age discrimination is capable of objective justification (unlike other protected characteristics), reflecting the recognition that age-based distinctions can be legitimate (such as age-based pricing or the national minimum wage age bands). The Genuine Occupational Requirement exception is narrowly construed. The Act also provides for national security exemptions, which can be invoked where the application of the Act would be contrary to the interests of national security.

Conclusion

The Equality Act 2010 is a landmark piece of constitutional legislation that created a unified framework for the protection of equality in the United Kingdom. By consolidating numerous earlier statutes, the Act simplified a complex area of law and extended consistent protection across nine protected characteristics. The public sector equality duty has embedded equality considerations into the decision-making processes of public authorities. The Equality and Human Rights Commission provides independent enforcement and strategic guidance. The Act remains a central component of the UK’s constitutional framework, reflecting the fundamental value of equal treatment and the prohibition of discrimination in the exercise of public power.