employment law Acts

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Equality Act 2010

Introduction

The principle of equality is an indispensable element of a democratic society. Equality law in Britain, however, is a recent development: the law until the 1960’s, commonly incorporated discriminatory attitudes without making any effort to change them. The Equality Act 2010 (the Act), [1]which came into force from October 2010, provides a clear and comprehensive Act to deal with previous challenges relating to discrimination and promotes equality.[2] The Act is part of the fifth generation of legislation in the Britain relating to the promotion of equality. The Act applies only in England, Scotland and Wales but not Northern Ireland. The Act protects people against unfair treatment based on the protected characteristics.[3] These characteristics include: age disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, sex, sexual orientation, race and religion of belief.[4]

Aims of the Equality Act 2010

The Act was a result of campaigning by human rights organisations who wished to create a more unified law by covering the gaps in the previous law. During the summer of 2008, the case of Lewish v Malcolm[5] limited the definitions of disability related discrimination which resulted in a severe restriction of the scope for those who wished to claim for less favourable treatment under the previous legislation.[6] The case went against previous jurisprudence in the area, in particular, the Novacold[7] case which stated that discrimination is allowed as long as the employer could provide a reasonable justification for it.[8] In order to rectify the muddled state of the law the Equality Act 2010 was brought in. Previously, discrimination law was focused primarily on employment, therefore, there was extreme need to introduce a new Act which would focus on areas beyond employment.

The Act was introduced precisely to strengthen the effectiveness of the British legal framework in achieving equality by streamlining previous laws and strengthening the level of protection afforded to the protected characteristic groups.[9] The aim of the Act was to harmonise existing legislation in relation to discrimination law in Britain and to extend the scope of protection to areas which are beyond the field of employment. The Act, therefore, merged nine main pieces of legislation into one: the Equal Pay Act 1970,[10]the Sex Discrimination Act 1975,[11]the Race Relations Act 1976,[12]the Disability Discrimination Act 1995,[13] the Employment Equality (Religion or Belief) Regulations 2003,[14] the Employment Equality (Sexual Orientation) Regulations 2003,[15] the Employment Equality (Age) Regulations 2006,[16] the Equality Act 2006, Part 2,[17] and the Equality Act (Sexual Orientation) Regulations 2007.[18]Alongside this, the Act incorporated 100 pieces of secondary legislation.

Changes made by the Equality Act 2010

The Act has been commended for the changes it brought to discrimination legislation in the UK. Since, the Act is mostly a conglomeration of all the previous law on discrimination, it has not brought about many massive changes.[19] Rather, the Act has aimed to build on previous law and fill in the identified gaps.[20] Apart from adopting a more unitary and integrated perspective of equality law, the Act has done much to clarify definitions under the previous legislation. In particular, definitions of discrimination, victimisation and harassment.[21]

The Act, furthermore, brought in more protected characteristics than previous legislation, thereby, widening the circumstances under which positive action by the authorities must be taken.[22] Previously, there were only three protected characteristics.[23] Alongside the introduction of new protected characteristics, the Act provides further protection of those characteristics by providing for the legal recognition of indirect discrimination under s19 of the Act.[24] Indirect discrimination made way for further expansion of equality legislation in the UK by focusing on discriminatory practices which are deeply embedded in the workplace and the employment sector, rather than focusing on policies.[25] Furthermore, indirect discrimination is being applied, for the first time to disability and gender reassignment.[26]

In order to protect these characteristics, an integral way in which the law has developed is by introducing public sector duties.[27] Contained within s149 of the Act, the public sector equality duty would replace the requirements of race, gender and disability duties. Public sector duties promote positive action in relation to protected characteristic as opposed to the prohibiting of discriminatory acts relating to those characteristics.[28] Public sector bodies have an obligation to protect individuals from discriminatory treatment by having “due regard to the need to eliminate unlawful discrimination, to promote equality of opportunity and to foster good relations between different groups.”[29] Having due regard means consciously appreciating and acting to fulfil the three aims under the Act as a part of the workplace’s decision making process.[30] The public bodies, moreover, have the duty to publish information relating to the policies and practices in their organisation which could have an effect on equality of the employees.[31] The new Act hold public bodies accountable for their actions and ensures good decision making by public authorities. The coverage or ambit of the Act, therefore, is increased.

Discrimination arising from disability, furthermore, is a new provision which makes it unlawful to treat a disabled person unfavourably due to circumstances which arise because of their disability: in such cases, the employer has a duty to make reasonable adjustments.[32] Such new additions to the law has done much to tighten substantive equality in Britain i.e. forces the authorities to consider the backgrounds of individuals by seeking to “equalise the starting points irrespective of a person’s background or status.”[33] This is a major move from the stance taken by the government on equality laws which was of endorsing formal equality which ignored the diversity of human being by focusing too much on ensuring consistent treatment.

Conclusion

In conclusion, the Act has achieved significant improvements by building on the preceding legal framework, in order to address deep-rooted systematic problems of inequality in Britain, and in particular, the workplace.[34] The Act has widened the ambit of the law by allowing more discriminated groups to bring discrimination claims. Simplifying the legislation for all of the characteristics is the first step towards making Britain a fairer society and to improve public services also.

Bibliography

Books

Fredman, S. Discrimination Law (Oxford University Press, 2002) 14

Great Britain. Equality Act 2010. (Editions de L’Atelier, 2010) 6

Wadham, J. Robinson, A. Ruebain, D and Uppal, S. Blackstone’s Guide to the Equality Act 2010. (Oxford University Press, 2010) 2

Cases

Clark v Novacold [1999] IRLR 318

London Borough of Lewisham v Malcolm [2008] UKHL 43; [2008] IRLR 700

Articles

Lois Thwaites. ‘The British equality framework is incapable of achieving equality in the workforce.’ 2004, North East Law Review, 143

Peter Westen. ‘The Empty idea of Equality.’1982, Harvard Law Review, 95(3), 537

R Horton. ‘The End of Disability-Related Discrimination in Employment?: London Borough of Lewisham v Malcolm[2008] UKHL 43; [2008] IRLR 700.’ 2008, Industrial Law Journal, 37(4), 379

Sandra Fredman. ‘Providing equality: substantive equality and the positive duty to provide.’ 2005, South African Journal of Human Rights, 21(2), 165

Sarah Childs, Paul Webb and Sally Marthaler. ‘Constituting and Substantively representing women: Applying new approaches to a UK case Study.’ 2010, Politics and Gender, 23(6)

Tim Jarrett. ‘The Equality Act 2010 and positive action.’ 2011, House of Commons Library, Business and Transport Section, 3

Statutes

The Equality Act 2010

The Equal Pay Act 1970

The Sex Discrimination Act 1975

The Race Relations Act 1976

The Disability Discrimination Act 1995

The Employment Equality (Religion or Belief) Regulations 2003

The Employment Equality (Sexual Orientation) Regulations 2003

The Employment Equality (Age) Regulations 2006

The Equality Act 2006, Part 2

The Equality Act (Sexual Orientation) Regulations 2007


[1]The Equality Act 2010

[2] Great Britain. Equality Act 2010. (Editions de L’Atelier, 2010) 6

[3] ibid

[4] John Wadham, Anthony Robinson, David Ruebain and Susie Uppal. Blackstone’s Guide to the Equality Act 2010. (Oxford University Press, 2010) 2

[5] London Borough of Lewisham v Malcolm[2008] UKHL 43; [2008] IRLR 700

[6] R Horton. ‘The End of Disability-Related Discrimination in Employment?: London Borough of Lewisham v Malcolm[2008] UKHL 43; [2008] IRLR 700.’ 2008, Industrial Law Journal, 37(4), 379

[7] Clark v Novacold [1999] IRLR 318

[8] ibid

[9] John (n4 above) 3

[10] The Equal Pay Act 1970

[11] The Sex Discrimination Act 1975

[12] The Race Relations Act 1976

[13] The Disability Discrimination Act 1995

[14] The Employment Equality (Religion or Belief) Regulations 2003

[15] The Employment Equality (Sexual Orientation) Regulations 2003

[16] The Employment Equality (Age) Regulations 2006

[17] The Equality Act 2006, Part 2

[18] The Equality Act (Sexual Orientation) Regulations 2007

[19] Tim Jarrett. ‘The Equality Act 2010 and positive action.’ 2011, House of Commons Library, Business and Transport Section, 3

[20] ibid

[21] Ibid at 4

[22] Lois Thwaites. ‘The British equality framework is incapable of achieving equality in the workforce.’ 2004, North East Law Review, 143

[23] ibid

[24] Peter Westen. ‘The Empty idea of Equality.’1982, Harvard Law Review, 95(3), 537

[25] ibid

[26] ibid

[27] John Wadham, Anthony Robinson, David Ruebain and Susie Uppal. Blackstone’s Guide to the Equality Act 2010. (Oxford University Press, 2010) 2

[28] Ibid at 4

[29] ibid

[30] Sandra Fredman. Discrimination Law (Oxford University Press, 2002) 14

[31] ibid

[32] Sandra Fredman. ‘Providing equality: substantive equality and the positive duty to provide.’ 2005, South African Journal of Human Rights, 21(2), 165

[33] ibid

[34] Sarah Childs, Paul Webb and Sally Marthaler. ‘Constituting and Substantively representing women: Applying new approaches to a UK case Study.’ 2010, Politics and Gender, 23(6), 223