The Equality Act – Time for a Change?

The Equality Act 2010 was the last grand gesture of the 13-year Blair / Brown Labour government before it was unceremoniously booted out of power by David Cameron’s Tories at the 2010 general election.

The Act, which ran to a hefty 218 sections and 28 schedules, was largely the brainchild of the then Equalities Minister Harriet Harman. It attempted to consolidate the fragmented discrimination legislation which had developed over time but also to promote advances in equality law, notably through the introduction of the public sector equality duty which created a positive duty on public bodies to combat discrimination.

In the following 11 years of Conservative Party rule the Equality Act has become part of the furniture of employment law and has survived more or less intact. There have been no attempted grand reforms with successive tory administrations having more urgent matters to attend to with the successive crisis of austerity, Brexit and COVID.

However, now that Britain has left the jurisdiction of the ECJ there is no legal reason why the government can’t take out its red pen. The first murmurings in this direction may have come this week with the publication of a major review by the right-leaning thinktank Policy Exchange entitled ‘The Future of Equality’.  The report is a discursive 40-page document which makes four main criticisms of how the Act has operated over the course of its first decade:

• The Public Sector Equality Duty unnecessarily makes a ‘commitment to equality’ a pre-requirement of employment in public institutions. This has promoted ideological conformity rather than diversity of opinion in public life.  

• The concept of ‘sub-conscious bias’ has increasingly become relied upon in direct discrimination claims. As there is no defence to direct discrimination this makes its reach extremely broad and can make employers liable for discriminatory acts even where there is no discriminatory intent.

• The legal test for harassment relies predominantly on the subjective feelings of the complainant rather than an objective consideration of whether they are reasonable. This has resulted, for example, in the banning of certain groups and speakers from university campuses to avoid offending the sensitivities of other groups.

• The protection of philosophical beliefs has been restricted by the use of the Grainger criteria under which beliefs are unprotected if they are deemed not worthy of respect in a democratic society. This has resulted in some mainstream beliefs, such as the ‘gender critical’ beliefs of Maya Forstater, being deemed unworthy of legal protection.

The report could be read as an attack on what some on the political right would regard as the woke excesses of discrimination law and therefore as a new front line in the conservative ‘culture wars’ agenda although this would be doing the authors something of a disservice. Their analysis is largely considered and their recommendations do not involve wholesale changes to the Act but rather some legislative tinkering to rein in effects they regard as unfair and perverse.

What seems certain in the post-Brexit environment is that employment law will increasingly become a political football between those on the left who would like to extend its reach and those on the right whose agenda is to remove ‘red-tape’, much of which previously had legal protection from Europe. The Equality Act falls squarely within this category and may not survive for much longer in its current form.

This Blog was written by Mark Alaszewski, Employment Solicitor at didlaw.