Equality Act 2010

On 1 October 2010, the new Equality Act 2010 (“the EA”) came into force. It’s basically an amalgamation of the infamous Disability Discrimination Act 1995 (“the DDA”) with the Race Relations Act 1976, the Sex Discrimination Act 1975, and the various statutory instruments that cover age, sexual orientation, religion and belief, and brings the various strands under one roof, labelled “protected characteristics”.

In theory, it will make it “easier” for those with protected characteristics to make a claim for discrimination in the Employment Tribunal or County Court. Whether it does, remains to be seen.

As a solicitor specialising in discrimination law, this will have huge ramifications on my work. The first thing I looked at was the transitional arrangements. It’s not as simple as saying “awh, just claim everything under the EA, doesn’t matter when the discrimination happened!”. The rules are thus:

If an act or acts occurred wholly before 1 October 2010, then they will be dealt with under the old legislation. If they happened on 1 October 2010 onwards, then they will be dealt with under the EA.

What about continuing acts of discrimination though? That is to say, acts of discrimination that started before 1 October 2010 but continued after this date? It seems that these will fall under the EA.

On a practical level, I now need to edit all our precedents, although I’ll probably do this on a one-by-one basis as I don’t have the time to edit them all in one go!

One other thing. Obviously I deal with disability discrimination on a day to day basis; the main changes to the DDA are as follows:

  1. Disability-related discrimination has been scrapped. This is good news because the judgment made by the House of Lords in the London Borough of Lewisham v Malcolm [2008] case made it extremely difficult for claimants to succeed under this part of the DDA, and has now been reversed by the EA with the new concept of discrimination arising from a disability. If any of you want me to explain what was so damning about the Malcolm case, comment and I’ll explain.
  2. The introduction of indirect discrimination to disability discrimination, bringing it in line with the concept already familiar in in sex and race discrimination.
  3. Harmonising the thresholds for the duty to make reasonable adjustments for disabled people.
  4. Making it more difficult for disabled people to be unfairly screened out when applying for jobs, by restricting the circumstances in which employers can ask job applicants questions about disability or health.

I look forward to working with the EA and it’ll certainly make a change from working with that old dinosaur, the DDA!

“It’s not “the DDA” any more; it’s “the EA”!

Rob

Deaf, hubby to Rachel, dad to Corey, Libby and Emily, Solicitor, Lecturer in Legal Practice at University of South Wales, PhD student at University of Leicester.

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3 Responses

  1. Dafydd says:

    Please give more information about the Malcolm case.

  2. Rob says:

    Ok. To prove disability-related discrimination, you need to have either an actual or hypothetical comparator.

    So for example, in Malcolm, the claimant was a tenant with schizophrenia. He was evicted from his home by Lewisham Council for non-payment of rent and for subletting contrary to his tenancy agreement. He claimed disability-related discrimination on the basis that the eviction was discriminatory as they did not take into account his disability and that a hypothetical comparator would be a non-schizophrenic tenant.

    The House of Lords ruled that although the hypothetical comparator is a non-schizophrenic tenant, the comparator test stipulates that the comparator has to be in exactly the same position as the claimant i.e. a non-schizophrenic tenant who had not been paying and the rent and was subletting. As the Council would have evicted such a tenant in exactly the same circumstances, there was no discrimination.

    That meant disability-related discrimination became very difficult to claim in court or tribunal thereafter.

    Hope that helps?

  1. 10 October 2010

    […] Equality Act 2010 […]

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