Equality Act 2010
1. Introduction
The Equality Act 2010 (the 2010 Act) sets out rights and duties intended to prohibit discrimination and to promote equality, not only in the workplace but also in the provision of services, the performance of public functions, in access to premises, in education and in the conduct of private associations. The 2010 Act includes provisions placing duties on public bodies, which are anticipatory rather than reactive, and permitting positive action.
The 2010 Act seeks to prohibit discrimination on nine specific grounds, called protected characteristics, as defined in part 2, chapter 1, namely age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
Part 2, chapter 2 of the 2010 Act defines and regulates different types of prohibited conduct, namely direct discrimination, indirect discrimination, harassment and victimisation, with two additional forms of prohibited conduct applying to the protected characteristic of disability only, namely the failure to make reasonable adjustments and discrimination arising from disability.
Part 8 of the 2010 Act deals with ancillary forms of prohibited conduct relating to relationships which have ended, instructing and aiding contraventions of certain parts of the Act.
This chapter provides an overview of the protected characteristics, the definitions and scope of prohibited conduct, as well as the public sector equality duty and positive action provisions.
For further reading consult Blackstone’s Guide to the Equality Act (published by OUP Oxford, 2021). Hepple, Equality: The Legal Framework (OUP, 2014), although dated, provides an excellent narrative about the Act, and for detail, again dated, Monaghan on Equality Law (OUP, 2013) is also recommended. For up-to-date detail, consult IDS Handbooks on Discrimination at Work, Disability, Maternity and Parental Rights and Atypical Workers (Sweet and Maxwell). For practical guidance, consult the Codes of Practice issued by the Equality and Human Rights Commission.
2. Protected characteristics
Age
Age is defined by reference to a person’s age group (section 5 of the 2010 Act). An age group can be either a particular age or a range of ages, such as ‘persons over 40’, or an undefined range such as ‘middle aged’. Unlike other protected characteristics, age is not binary, but a continuum which changes over time.
Disability
A person has the protected characteristic of disability if they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities (section 6 of the 2010 Act). A physical or mental impairment includes things such as sensory impairments, learning disabilities, mental health conditions and mental impairments such as autism and dyslexia. Formal medical diagnosis is not necessary, but a person must show substantial (more than minor or trivial) and long-term (lasting 12 months of more) adverse effect on their ability to carry out day-to-day activities. The impact of the impairment will be assessed as if the person was not receiving medical treatment or using auxiliary aids. Protection is extended to people who do not have a disability in certain limited circumstances, such as when a person is perceived to have a disability or is associated with a person who has a disability, for instance if they are a carer, and they may then be protected against harassment or victimisation.
Gender reassignment
A person who is undergoing, has undergone, or intends to undergo a process or part of a process to reassign their sex by changing physiological or other attributes of sex has the protected characteristic of gender reassignment (section 7 of the 2010 Act). Protection is not predicated on having a gender recognition certificate. Gender reassignment is a personal not a medical process, and no medical intervention is required for protection. Although the Act refers to people who have the protected characteristic of gender reassignment as ‘transsexuals’, that terminology is outdated in day-to-day life. Generally, the term now used is ‘trans’ or ‘transgender’. Protection does not extend to those holding other gender identities, such as non-binary, or to those who cross-dress for reasons not related to gender reassignment (although there may be protection if they are perceived to be transgender).
There are additional protections for transgender people; if they are absent from work because of gender reassignment, it is unlawful to treat them less favourably than they would be treated if they were absent due to an illness or injury (section 16 of the 2010 Act).
Marriage and civil partnership
A person has the protected characteristic of marriage and civil partnership if they are married or in a civil partnership (section 8 of the 2010 Act). This protection does not apply to those who are single or cohabiting, nor those who are engaged, widowed, or divorced or to those have had their civil partnership dissolved, so it does not protect people from marital status discrimination. It can be relied on to establish only direct or indirect discrimination in the context of employment.
Pregnancy and maternity
There is no definition of pregnancy and maternity in chapter 1 and the scope of protection is limited to direct discrimination, not indirect (although victimisation could be argued), and it does not extend to harassment either. Nor does it apply to discrimination based on association or perception (although that may well be sex discrimination which could be used as the basis of such a claim, as it could be for harassment).
The protection simplifies the evidential requirements because no comparator is required, and where it is established that treatment was because of pregnancy or maternity, no defence can be relied on. There are separate provisions relating to pregnancy and maternity discrimination in the work and non-work context. A person discriminates against a woman if they treat her unfavourably because of her pregnancy or for reasons related to that or taking maternity leave in the protected period, that is until any maternity leave ends, or for non-work cases for 26 weeks after the birth (see sections 17 and 18 of the 2010 Act).
Race
The protected characteristic of race includes colour, nationality and ethnic or national origins, and potentially caste (section 9 of the 2010 Act). Protection is established by reference to a person’s ‘racial group’. A group could comprise two or more distinct racial groups, for example it could be Scottish and British, or both Pakistani and Scottish, and indeed the group does not need to be named, so there would be protection for those in the non-EU group.
Ethnic or national origins refers to such things as community background, descent, or heritage, for example Roma background or Chinese heritage. The two terms overlap but are not interchangeable: for instance, the English and the Scots have been regarded as having shared national origins without being ethnic groups (British Airways v Boyce 2001 SC 510).
A person’s nationality must be distinguished from their national origins, which is defined by the state of which they are a citizen or subject (although they may overlap). As to ethnic group, this must have a long shared history and a cultural tradition of its own, and may have a common language, literature, religion and/or geographical origin or be a minority or oppressed group (Mandla v Dowell Lee [1983] 2 AC 548). Sikhs, Jews, Romany Gypsies and Scottish Travellers have been held to meet these requirements, but not Muslims or Rastafarians.
Religion or belief
The protected characteristic of religion means any religion and includes a lack of religion. Belief means any religious or philosophical belief and includes a lack of belief (section 10 of the 2010 Act). Neither religion nor belief is given any detailed definition in the Act. However, the concept of religion is broad, going beyond the well-known religions, so long as the belief is sincerely held by an individual and intrinsic to their faith. Denominations and sects may amount to a religion in themselves.
Humanism, agnosticism, and atheism are philosophical beliefs, but the definition extends wider than that, to include, for example, a belief that climate change is human caused and a commitment to animal rights. A philosophical belief must have sufficient impact on the person that it affects how they live their life or perceive the world in order to be protected. To qualify, it must: i) be genuinely held; ii) be a belief, not an opinion or viewpoint based on the present state of information available; iii) relate to a weighty and substantial aspect of human life and behaviour; iv) attain a certain level of cogency, seriousness, cohesion and importance; and v) be worthy of respect in a democratic society, not incompatible with human dignity, and not in conflict with the fundamental rights of others (Grainger Plc v Nicholson [2010] ICR 360). It has been held by an employment tribunal to encompass Scottish nationalism (McElney v MOD ET 2019) but not supporting Rangers Football Club (McClung v Doosan Babcock ET 2022).
Sex
Section 11 of the 2010 Act states that the reference to the protected characteristic of sex is a reference to a man or a woman. No further definitions of the terms ‘woman’ or ‘female’ or ‘man’ or ‘male’ are provided, beyond the provision that ‘woman’ means a female of any age and ‘man’ means a male of any age (see section 212(1)).
The term ‘sex’ rather than gender is used throughout the 2010 Act, except for section 78 where reference is made to gender pay gap information. The term ‘sex’ has been interpreted to address both discrimination because of biological sex as well as the social construction of gender (see dicta of Lord Justice Clerk in Fair Play for Women Ltd v Register General for Scotland 2022 SC 199).
Sexual orientation
The protected characteristic of sexual orientation means a person’s orientation towards persons of the same sex, persons of the opposite sex or persons of either sex (section 12 of the 2010 Act). Therefore, it covers orientations which are gay, lesbian, bisexual or heterosexual. A person who manifests their sexual orientation through conduct or behaviour or other external indicators such as accent or physical appearance will be protected.
3. Prohibited conduct
Direct discrimination
Section 13 of the 2010 Act provides that a person discriminates against another if they treat them (or would treat them) less favourably than a person in the same or similar circumstances because of a protected characteristic. Direct discrimination cannot generally be justified, except where the protected characteristic is age. There are, however, several exceptions whereby direct discrimination is permitted. It will encompass discrimination by perception, where a person believes that another has a protected characteristic even if they do not, and discrimination by association, where a person is treated less favourably because they associate with someone with a protected characteristic.
Indirect discrimination
Section 19 of the 2010 Act provides that a person discriminates against another where they apply a policy, criterion, or practice (PCP) to those who do not share the complainer’s protected characteristic, which puts or would put those who share the complainer’s protected characteristic at a particular disadvantage; and puts the complainer at that disadvantage. If a complainer can prove particular disadvantage, then the burden of proof will shift to the respondent to show that the PCP is a proportionate means of achieving a legitimate aim.
Harassment
Harassment will occur where a person engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of violating the complainer’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment (section 26(1) of the 2010 Act). This includes unwanted conduct of a sexual nature (section 26(2) of the 2010 Act). Where there is unwanted conduct which meets the definition, harassment will also occur where the person has rejected or submitted to the conduct, and as a result the person treats the complainer less favourably (section 26(3) of the 2010 Act).
Where the conduct has the proscribed purpose, then a complainer will succeed. If it has that effect, then the court or tribunal must take into account the perception of the complainer, whether it is reasonable for the conduct to have that effect, and the other circumstances of the case: that is both a subjective and objective test.
As there is no requirement for a comparator, the conduct simply needs to be ‘related to’ the protected characteristic of sex, which is more extensive than conduct ‘because of’ a protected characteristic (English v Sanderson Blinds [2009] 2 CMLR 18).
Conduct which is self-evidently offensive can amount to harassment even if the complainer has not expressly objected (see, for example, Insitu Cleaning v Heads [1995] IRLR 4 EAT) and a one-off incident or comment can amount to harassment (Richmond Pharmacology v Dhaliwal [2009] ICR 724).
Victimisation
A person victimises another if they subject them to a detriment because they have done, or believe they have done, a protected act (section 27 of the 2010 Act). The focus is not on the protected characteristic but rather on the complainer’s conduct, which can be pursuing or giving evidence in relation to a claim under the 2010 Act, or anything else in connection with that Act. There may be more than one reason for any detriment suffered, and it is enough that the protected act had a significant influence on the outcome. There is no time limit within which the detriment must occur following the protected act, although a long gap may make it more difficult to prove the necessary causal link between the detriment and the protected act.
Discrimination arising from disability
Section 15 of the 2010 Act provides discrimination arising from disability will occur when a complainer is subject to unfavourable treatment because of something arising in consequence of disability. In contrast with direct discrimination, no comparator is required and the reason for the treatment is not the disability itself but something arising from, or in consequence of, the complainer’s disability. For example, a complainer may be refused entry because they have an assistance dog, which is a consequence of their disability, but not because they are blind. A respondent will not be liable if they did not know, or could not reasonably be expected to know, that the complainer was disabled, or if the treatment can be objectively justified.
Duty to make reasonable adjustments
Section 20 of the 2010 Act creates a positive and proactive duty to make reasonable adjustments to alleviate substantial disadvantage suffered by disabled people. The duty to make reasonable adjustments arises when a disabled person is placed at a substantial disadvantage by the application of a provision, criterion or practice (PCP), by a physical feature or the non-provision of an auxiliary aid. A failure to take such steps as are reasonable to avoid the disadvantage amounts to discrimination.
In the employment context, the duty will only be triggered where the respondent knew or ought to have known both that the complainer was disabled and that they would be substantially disadvantaged by any failure to make adjustments. In relation to services, public functions, associations and education, the duty is an anticipatory one which is owed to disabled people generally (although a provider is not expected to anticipate the needs of every individual who may use their service). In relation to premises, the duty only arises when a disabled person makes a request for an adjustment.
4. Other prohibited conduct
Discrimination or harassment which ‘arises out of and is closely connected to a relationship which used to exist is unlawful’ (section 108 of the 2010 Act). This covers any former relationship, whether it is a complaint from a former employee (such as victimisation in relation to the provision of a reference: Rowstock Ltd v Jessemy [2014] 1 WLR 3615) or a former customer (who has been barred for previously claiming discrimination).
It is unlawful for a person to instruct someone, or to cause or induce someone, to discriminate against, harass or victimise another, or attempt to do so, or to help another do an unlawful act (section 111 of the 2010 Act). An example is where a GP instructed their receptionist not to register anyone with an Asian name (see EHRC Statutory Code of Practice).
It is also unlawful to knowingly help another to discriminate against, harass or victimise another person (section 112 of the 2010 Act).
5. Public sector equality duty
The public sector equality duty places positive duties on public authorities to take active steps to eliminate discrimination, to advance equality of opportunity and to foster good relations (section 149 of the 2010 Act).
There is a general duty, imposed on all authorities which carry out public functions, and specific duties, placed on listed public authorities.
The general duty is set out in section 149(1), which provides that: ‘a public authority must, in the exercise of its functions, have due regard to the need to (a) eliminate discrimination, harassment, victimisation and any other conduct which is prohibited under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not’.
Courts and tribunals, in addition to (but not limited to) local councils and the police, are considered public authorities for these purposes, although the exercising of ‘judicial functions’ or functions exercised on behalf of, or on the instructions of, a person exercising a judicial function are excluded from the duty (schedule 18, paragraph 3 to the 2010 Act).
Section 149(6) of the 2010 Act makes clear that complying with the duty might mean treating some people more favourably than others. This would include treating disabled people more favourably than non-disabled people and making reasonable adjustments for them, making use of exceptions which permit different treatment, and using the positive action provisions in sections 158 and 159 where they are available.
Public authorities which are listed in schedule 19 to the 2010 Act are subject to certain specific duties for the better fulfilment of the general duty. The specific duties imposed on listed Scottish public authorities are found in the Equality Act 2010 Specific Duties (Scotland) Regulations 2012 (See guidance published by Equality and Human Rights Commission).
6. Positive action
Positive action, intended to address disadvantages suffered by under-represented groups because of past discrimination, is an exception to the non-discrimination principle (sections 158 and 159 of the 2010 Act).
The provisions are permissive, not prescriptive, which means that there is no obligation to undertake forms of positive action. Positive action is permitted in three situations: where action is a proportionate means of achieving a legitimate aim; in a ‘tie-break’ situation in recruitment and promotion; and in the selection of candidates by political parties.
Positive action permits action targeted at the protected groups which is a proportionate means of achieving certain stated aims, namely enabling or encouraging persons to overcome or minimise disadvantage, meeting the different needs of the protected group and enabling or encouraging persons in the protected group to participate in an activity.
Action falling into one or more of these categories is permitted if a person reasonably thinks the protected groups will suffer disadvantage connected to their characteristic; where they have needs that are different from others; and where participation in any activity by persons who have a protected characteristic is disproportionately low.
7. Enforcement
The Equality and Human Rights Commission (‘EHRC’) exists to promote the importance of equality and diversity with a view to eliminating unlawful discrimination in society. The EHRC also has powers to initiate proceedings in its own name as well as intervene in relevant litigation.
8. European Convention on Human Rights
The Human Rights Act 1998 reinforces protection against discrimination by public bodies in the United Kingdom. The 1998 Act gives domestic effect to the European Convention on Human Rights. Of particular relevance is Article 8 (right to respect for private and family life), Article 9 (right to religious freedom) and Article 14 (prohibition of discrimination). Section 6 requires that public authorities, including the judiciary, comply with the ECHR.