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Analysis Of The Equality Act

The introduction to Equality Act 2010

Equality Act 2010 is an act of the Parliament of United Kingdom which taking effect from October 2010 prescribes an equal treatment in access to employment as well as private and public services.

The act list a set of protected characteristics which are identified as follow: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. With regards to these characteristics the Act provide a distinct protection per each framing the all provisions with general indications about common characteristics of discrimination. The reason of such fragment and different protection among the protected characteristic is explained on the basis of a pre-existing anti- discrimination law which was subsequently combined by the Equality Act adding further element of protection. In fact, the Act is formed by a number of pieces of other legislation which regulated the discrimination law field. In this way, were legislatively actives the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995. The act replace also a number of Regulations, in which the one relevant in age discrimination field was the Employment Equality (Age) Regulations, which take effect starting from 2006 until the adoption of Equality act.

The definition of ‘Discrimination’ differs from statute to statute and it generally consist in treating one person less favourably than another [1] . In this way, the Equality Act provide a guidance which aim to give a general framework of the different discriminatory situations. It distinguish among direct discrimination [Section 13(1) [2] ] and indirect discrimination [Section 19(1)], harassment [Section 26 (1)] and victimisation [Section (27)1]. Following the Act definitions is possible to identify direct discrimination where because of a protected characteristics a person is treated less favourably than someone who does not share that characteristic. According with the guidance, Indirect discrimination refer to a policy which applies in the same way for everybody providing as effect particularly disadvantages to people with a protected characteristic.

It is important to underline how the Act refer to the possibility of lawful discrimination. The circumstances in which a concrete discrimination is permitted are in occupational requirements (direct discrimination is permitted when particularly characteristics are required for a job), armed forces (for the purposes of combat effectiveness of the armed forces), positive action ( positive action are intended as measures to alleviate disadvantage suffered by people who share one of the protected characteristics). The possibility of lawful discrimination are amplified in age-discrimination, in which is prescribed that an ‘objective justification’(legitimate aim) could be applies to allow indirect discrimination and direct discrimination.

With regards to public bodies, a new Equality Duty has come in force on 5 April 2011 underlining the importance of public role in eliminating discrimination, advance equality of opportunity, and foster good relations in the course of developing policies and delivering services. In this way, the aim for public bodies is to consider the needs of all individuals in their day to day work, in developing policy, in delivering services, and in relation to their own employees [3] . 

After these considerations, is possible to distinguish within the Equality Act three distinctive features. In fact it tends to be ‘comprehensive’ adopting a unitary or integrated perspective of equality [4] , it ‘harmonises and clarifies’ extending the concept of discrimination across the nine protected characteristics and finally it tends to be ‘transformative’ on the basis that extend positive duties on public authorities in order to eliminate discrimination [5] .

Equality Act and Age-Discrimination

Age is actually one of the nine protected characteristics listed in section 4, for which are identify prohibited conducts. It becomes a prohibited characteristic from October 2006 by Employment Equality (Age) Regulation 2006, which aimed to implement the Framework Employment Directive [6] . In fact, the objectives of the Directive in terms of age were considered as ‘ the need to take appropriate action for the social and economic integration of elderly and disable people’ (Recital 6). Age and disability are considered separately from the ground of sex and race on the basis that are both recent statutory innovations and are considered related on the basis of the uneasiness involved ( disability could be the consequence of the ageing process).

Aging population problem was initially faced in a Government consultation document on its Code of Practice on Age Diversity in Employment [7] in which was affirmed that ‘ it is clear that age discrimination against older worker does exist’. Consequently, in 2006 the Employment Equality (Age) Regulation prohibited direct and indirect discrimination, and harassment and victimisation, on the grounds of age [8] .

However, another feature of the age field is that a less favourable treatment is not considered direct discrimination if it is a proportionate means of achieving a legitimate aim [9] . In this way. was broadly discussed the provision of Default Retirement Age (DRA), which starting from April 2011 has been deleted from the legislation because not more considered in sync with the demographic changes and the new politics and economic objectives. In fact, DRA was a clear discriminatory provision against people over 65, because ‘It made employer mandatory retirement ages below 65 unlawful unless, in their particular case, an employer can objectively justify a lower age [10] ’. However, a long-term discussion was conducted on this problem which although was considered a less favourable treatment on grounds of age, has been held in many cases not to amount to direct discrimination where it could be justified. [11] 

The Regulation 2006 introduced also the Equality and Human Rights Commission (EHRC), a non-departmental public body in Great Britain responsible for the promotion and enforcement of equality and non-discrimination laws in England, Scotland and Wales. A feature of this Commission is its independence from both government and private sector. The main statutory objectives of it include promoting understanding of the importance of equality and diversity, promoting awareness and understanding of the rights under the Equality Act, enforcing it and encouraging good practice in relation to equality and diversity and working towards the elimination of unlawful discrimination and harassment [12] .

The relation between age-discrimination itself and the public sector equality duty in the Equality Act aims to construct an age protection under two different dimension. In this way, individual dignity intended as social participation is often challenged by stereotypes and assumption that all elderly people share certain negative characteristics. Secondly, the age inequality refer to particular age groups should be balanced against the rights and interest of the others. In fact, is properly with regards to this second point that was introduced the ‘object justification’ exception, even though it could create some doubt in the effectiveness protection of the age, as in fact was happen in consideration of the DRA above mentioned.

Age discrimination in access to goods and services as a gap in legislation

The Governments have knowledge that there is “a significant amount of e evidence that older people are being treated in a discriminatory way by those providing goods and services" [13] . This discriminatory treatments affect both the individual dignity (as mentioned above), but also the ground of national economic improvement aspects [14] . In fact, areas in which is common to find age discrimination cases are often related to: an economic preference to invest in ‘middle-age customers’, an unwillingness to invest in readjustment finalized to guarantee consumption also by older people, and to stereotypization [15] . Stereotypes actually involves categorizations into groups, attributing specific characteristics to them. This process is often at the base of an unequal old peoples’ access to services (especially financial services and insurance). On the other hand, the vantages in promoting an equal access to goods are related to predicable increasing in consumers and contributors to the economic and social lives. [16] Hence, evidence regarding such unfair discriminations are identified in areas as insurance, financial services, marketing and media, access to public spaces, transports and modern technologies.

Access to goods and services could be individuated in various areas in which especially the old people face age discrimination. Some indicative examples are related to the financial field, in which are involved household, travel, life and vehicle insurance; borrowing and credit; banking products [17] . Usually, age barriers are erected by the supplier of services who justify it on the basis of the risk. Further example are given by the insurance industry, where is used age criteria in determining the risk of the insurance. As consequences some services are unavailable and others are prohibitively expensive simply depending on the age of the customer. Benefits are also varied on the basis of age, disadvantaging older customers.

Age discrimination protection in access to goods and services is actually lacking in the present provision, although the employment field could be considered covered. This lack is not present in disability which provisions about access to goods and services are part of Disability Discrimination Act (DDA)- now included in the Equality Act 2010- starting from 1995 [18] . In fact, in this field there was already clear that an holistic approach to the ‘usability’ of the physical environments needs to be applied in accessibility research. Confidence, security, information and forms of social interaction and assistance were all recognized as important element which avoiding disability discrimination were considered in the provision of purposes of the Equality Act.

In this way, the main question that arise from such considerations is whether same approach should be obtained in age discrimination field. As in fact considered above, age and disability are two characteristic relatively connected, hence this evident disparity in legislative protection is actually without an answer. A possible solution would involve institutions efforts in tackling such a gap in research assuming the already formed legislation in employment age discrimination and in access to goods and services in disability field as sources for defining a prohibited age discrimination in access to goods and services. The EHRC within its statutory functions could have a decisive role encouraging a general understanding of the importance of the age diversity, which could not be confined to the employment field.

Prospecting such developments, the Equality Act 2010 would be an important framework in which harmonise the arguable legislative modification, considering the principle of the equal treatment at the basis of the whole act.

Development of Equality Act 2010

The provisions of the Equality Act are being brought into force at different times to allow time for the people and organisations affected by the new laws to prepare for them.  Most of the provisions came into force on 1 October 2010.  The Government is considering how the remaining  provisions will be commenced so the Act could be implemented in an effective and proportionate way.

I this way, the Government Equalities Office (GEO) has produced in January 2010 two policy statements relating to the Equality Act 2010: ‘Equality Bill: Making it work. Ending age discrimination in services and public functions’ which summarises the consultation responses and sets out their plans for specific exceptions from the age discrimination ban and ‘Equality Bill: Making it work. Policy proposals for specific duties’ a consultation document setting out policy proposals for the specific public sector equality duties was published.

In this way the Government has announced that new rules banning age discrimination in the provision of goods and services will come into force in April 2012. On this basis, was produced a further consultation which will ban only prohibits "harmful or unjustifiable treatment that results in genuinely unfair discrimination because of age [19] " .

The consultation provide exceptions for three categories: health and social care, financial services, and other general services, public functions and private clubs or associations. In relation to financial services, the proposal did not change discriminatory practices allowing the use of age as parameter of assessing risk and deciding prices. However, any use of age will need to be based on relevant information which is from a source on which it is reasonable to rely improving transparency in a way that customers can be confident that age is not being misused.

On the other hand the insurance field has been improved, in this way if a provider is unable to provide assistance to a person because of their age, it will be obliged to refer that person to a provider who can meet their needs or a signposting service. 

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