Given the EHRC's role of upholding and enforcing the Equality Act 2010 (the 2010 Act), its Code of Practice is a step-by-step, practical guide whose principal aim is to help prevent discrimination in the workplace by helping both organisations and individuals to comply with the law.
The EHRC has now sought to update the Code of Practice to bring it in line with other technical guidance (in particular with concern to age discrimination), as well as developments in legislation and case law.
In particular, the Code of Practice has been updated to reflect these key developments:
- Who has rights (chapter 2): the most significant changes relate to the threshold for a philosophical belief to be protected under the 2010 Act and the definition of disability.
- Direct and indirect discrimination (chapters 4 and 5): the salient changes relate to the introduction of the new section 19A in the 2010 Act which introduces a claim of indirect discrimination for persons who do not have a protected characteristic but nevertheless suffer the "same disadvantage" as those persons with the relevant protected characteristic. This effectively codifies an associative indirect discrimination claim following a case in this area of law, albeit in that case, and indeed in this new section, there does not need to be a relationship or association between the group with the relevant protected characteristic and the individual making the claim. This chapter has further been updated in relation to comparators, and discrimination because of pregnancy and maternity.
- Positive action (chapter 10): this has been restructured to better explain the legal requirements for positive action.
- Exceptions (chapter 13): significant changes have been made to this chapter to reflect the Marriage (Same Sex Couples) Act 2013 and Civil Partnership (Opposite Sex Couples) Regulations 2019. Further changes have been made in respect of the EHRC's guidance on separate and single-sex service providers and in respect of age-specific exceptions.
- Enforcement (chapter 14): this has been updated following the repeal of certain provisions relating to conciliation and the formal questionnaire procedure, as well as to reflect differences in terminology and procedure in Scotland, and in England and Wales.
The purpose of the consultation is to ensure that these changes, as well as the existing Code of Practice, are as accurate and accessible as possible, whether for service providers, public bodies, associations or individuals. This is so that everyone is clear on their duties under the 2010 Act and the way in which the legislation impacts everyday situations. Baroness Kishwer Falkner is Chairwoman of the EHRC and has spoken of the importance of the update of the Code of Practice so that it is "an authoritative guide - so whether you’re a shop owner or the chair of a local sports club; the manager of a bank, a hotel or a hospital; an HR professional or a solicitor – you can be confident that you are upholding everyone’s rights.”
The consultation is for advisors and users alike so that the EHRC can appreciate if recent changes in the law have been transposed and interpreted clearly and effectively into the Code of Practice. It is therefore worth spending a short while responding to the consultation to identify if there are any issues in the draft and make your voice heard (before 3 January 2025 when it closes), so that it is ultimately a user-friendly guide to navigate this complex area of law.
