As is well known, the Equality Act 2010 replaced the vast majority of British anti-discrimination laws with one single statute on 1 October 2010. Not all parts of the Act came into force on 1 October 2010 and 6 April 2011 is the start date for three significant related items:
1. Positive action (Equality Act 2010 s.159)
2. Public Authority duties (Equality Act s.149)
3. Codes of Practice issued by the Equality and Human Rights Commission
Positive action. As from 6 April 2011 it is lawful for an employer to take any of the nine “protected characteristics” (sex, race, religion, sexual orientation etc.) into account in selecting to whom to offer a post, whether recruitment of a new job applicant or promotion of an existing employee, if the candidates are each as qualified as the other(s) and people having the same protected characteristic are under-represented in the employer’s workforce. Any action taken must be a proportionate means of addressing such under-representation.
The official explanatory notes to Equality Act 2010 explain that “The question of whether one person is as qualified as another is not a matter only of academic qualification, but rather a judgement based on the criteria the employer uses to establish who is best for the job which could include matters such as suitability, competence and professional performance”.
Positive action in favour of someone is not the same as positive discrimination in their favour (which generally remains unlawful after 6 April if it is because of a protected characteristic simply because it generally involves unlawful discrimination against someone else). Thus simply offering a job to a woman because women are underrepresented in the company’s workforce when a male candidate is better qualified is not lawful. Similarly offering the job to a woman who has the same qualifications as a male candidate is not lawful if women are adequately represented in the workforce. Those both remain, as previously, unlawful direct discrimination.
Employers should remember that they may need to justify any positive action if an unsuccessful candidate sues. Also it is worth noting that “positive action” of the sort noted above is not compulsory, unlike the duty imposed on employers to make “reasonable adjustments” in favour of employees who suffer from a disability, which can clearly amount in a rather different sense to taking positive action.
The Public Sector Equality Duty. This is a statutory duty on public bodies and others carrying out public functions which came into force on 6 April 2011. The intention is that it will “embed equality considerations into the day to day work of public bodies, so that they tackle discrimination and inequality and contribute to making society fairer”.
Codes of Practice. The Equality Act Code of Practice on Employment and the Code of Practice on Equal Pay, both prepared by the Equality and Human Rights Commission, also came into effect on 6 April 2011. According to the EHRC:
“The purpose of these Codes of Practice is to explain the new statutory provisions of the Equality Act. The Codes will help to ensure that the law is applied consistently by lower courts and tribunals. They will also help make the law accessible to a wider audience, such as those who have obligations and those who have rights – or their representatives. The Codes set out clearly and precisely what the legislation means. They draw on precedent and case law and explain the implications of every clause in technical terms. These statutory codes are the authoritative source of advice for anyone who wants a rigorous analysis of the legislation’s detail. For lawyers, advocates and human resources experts in particular, they will be invaluable”.
It is relevant to point out that the coalition government has announced that three other measures previously due to be introduced on 6 April 2011 under Equality Act 2010 are postponed or cancelled. These are the provisions for what was called the Equality Act Socio-economic duty (scrapped, as announced in November 2010); the rather technical provisions allowing claims for “dual discrimination” (postponed, possibly indefinitely, as announced in March 2011) and the provision under which employers would be liable for harassment of their employees by third parties if they “failed to take such steps as would have been reasonably practicable to prevent the third party from doing so”.