Thread by @DazNewman

The Equality Act (10 years old today) was a close run thing. It was given Royal Assent two days after the announcement of the 2010 General Election. Parliament was dissolved on 12 April

As a result, while the Labour Government managed to get the Act passed, it fell to the new Coalition Government to bring it into force. This would have important consequences

One of the big ticket measures in the Equality Act (it was put right at the beginning) was the duty on public bodies to 'reduce the inequalities of outcome which result from socio-economic disadvantage.' The new Government never implemented it.

Although the duty has now been introduced by the Scottish Government (as from April 2018)

People sometimes talk about the Equality Act as if it was a major step forward in equality law. But in the main it was just consolidating existing measures into one Act - with a few tweaks

But the tweaks meant that this wasn't technically a consolidation act. That meant that it didn't get the technical scrutiny that a consolidation bill would normally get to ensure that it covered everything and didn't inadvertently change the law
parliament.uk/business/commi…

The drafting of the Bill was intended to be a bold and radical departure from previous practice. It was intended to be written 'in plain English'
This turned out to be a bad idea

When first published, the explanatory notes were woven through it rather than set out at the end. As a result it was pretty much unreadable and eventually the notes were taken out and published separately as normal.

Previous discrimination legislation had referred to the claimant as 'he' - although the Sex Discrimination Act and the Equal Pay Act assumed that the claimant was a woman. The Equality Act dealt with the problem by using 'A' and 'B'

The Bill also introduced the concept of a 'protected characteristic' so that different grounds (sex, race etc) could be referred to collectively rather than individually. All nine of the protected characteristics were already covered by discrimination legislation

Terms used in the new Act did not always catch on. We still talk about 'Equal Pay claims' even though the Act refers (more accurately) to 'Equality of Terms'.

One aspect of discrimination law that had to be addressed was disability discrimination. The concept of disability-related discrimination had basically been ruined by the House of Lords in Lewisham v Malcolm bailii.org/uk/cases/UKHL/…

That had limited disability-related discrimination so that it was basically no different from direct discrimination. But the Bill's attempt to set that right turned out to be tricky

Clause 14 of the Bill said that it was discrimination when 'A treats B in a particular way' and 'because of B's disability, the treatment amounts to a detriment'.
But if I sack you based on something related to your disability it isn't the disability that makes that a detriment!

It was not until the Commons Report Stage that our familiar 'unfavourable treatment because of something arising in consequence of a disability' wording was introduced. It was scarcely debated in Parliament - but has been debated rather more in the subsequent case law

One provision that has never been brought into force is 'combined discrimination' under s.14. Where direct discrimination is based on a combination of two protected characterisitics

I always thought that provision was pointless. If I discriminate against you because you are a black man then that is both race and sex discrimination. It is not a defence to the race claim that it is only black men I object to and that black women are fine (Don't @ me)

Pausing there - back later!

The fact that the Equality Act didn't change much, didn't mean that it was uncontroversial. See this article for the Daily Mail by Duncan Bannatyne: dailymail.co.uk/debate/article…

I basically started blogging as a result of that article. My 'row' with Duncan even got a write up in Personnel Today personneltoday.com/hr/dragons-den…

I'm still living with the consequences of that argument

But back to the Act itself. One of the few genuinely new measures was section 60. 'Enquiries about disability and health'. This makes it unlawful to ask job applicants any questions about their health or disability before making a job offer.
legislation.gov.uk/ukpga/2010/15/…

I remember S.60 as being the biggest single issue for employers getting to grips with the Act - which in itself tells you a lot about how much the Act actually changed.

But asking an unlawful question can't in itself lead to a tribunal claim. Instead it is left to the Equality Commission to take enforcement action against employers who are in breach. Guess how many times they have taken enforcement action on those grounds in the last 10 years?

I suspect the answer is a very round number!

Asking an unlawful question about health also means that the burden of proof in a disability discrimination claim shifts to the employer who must show there was no discrimination. I can't remember ever seeing a case that turned on that point, but there must have been some.

Another new provision was on pay transparency. Section 77 invalidates any term in an employment contract that seeks to prevent an employee from making a 'relevant pay disclosure' legislation.gov.uk/ukpga/2010/15/…

It's a complicated and rather limited provision - and at the time the government sought to make more out of it politically than it actually deserved legally. It only applies to specific discussions around equality - it does not allow for general pay transparency

Section 78 is something that has come back on our radar only relatively recently. This is the power to make regulations requiring employers to publish information about their gender pay gap. legislation.gov.uk/ukpga/2010/15/…

This was another provision that was at first ignored by the Coalition Government - when Theresa May was the minister in charge of equalities. Regulations were eventually introduced in 2017 - when Theresa May was Prime Minister legislation.gov.uk/ukdsi/2017/978…

Other measures that weren't; immediately implemented by the incoming Coalition Government concerned positive action - Sections 158 and 159 legislation.gov.uk/ukpga/2010/15/…
legislation.gov.uk/ukpga/2010/15/…

The drafting of these sections is a real mess. There was a political will to go as far as possible in allowing positive action, but a clear concern that going too far would be in breach of EU law. Plus, the notion of 'positive discrimination' has always been highly controversial

As a result it has to be said that the meaning of these provisions does not exactly leap out at you. It is not at all clear when you can recruit a candidate because they are from an underrepresented group and so few employers try (or they choose to keep quiet about it)

So much about the Bill was political that there was not much time for the dry and technical scrutiny that might have avoided some of the difficulties we have faced since. Let's talk about compromise agreements.

S.147 of the Act sets out the conditions for what are now called settlement agreements - including the need for an independent legal adviser to sign it off.

But as originally drafted, S.147 seemed to say that the adviser who signed off the agreement could not have been acting for the person making the claim. That would have been an absurd position.

The intention was obviously that the employer could not get its lawyer to advise the employee on the effect of the agreement. But the section seemed to say that the employee's lawyer couldn't advise on the agreement either.

Not everyone agreed with that interpretation. @RobinAllenQC wrote that reading the provision in this was was wrong …u3ynseg2hl1r3-wpengine.netdna-ssl.com/wp-content/upl… but there was a row about it.
I seem to remember that the Government Equalities Office was reluctant to accept there was a problem

But eventually an amendment was made and the issue was sorted out. legislation.gov.uk/uksi/2012/334/…
Writing about it now it seems very obscure and technical but we all get very excited about it at the time.

Other oddities and quirks in the drafting of the Act still cause problems. I doubt anyone would defend the wording of S.136 on the burden of proof as a model of clarity. My heart sinks whenever I come across a new case that tries to make sense of it.

legislation.gov.uk/ukpga/2010/15/…

But overall I have got used to the Equality Act over the last decade. I don't buy into the mythology - it was a functional act that didn't actually change much. And for an Act that was originally intended to be written in plain English, the drafting can be - tricky.

It should not on its own be seen as a major achievement. The great strides in discrimination law were taken incrementally over many decades. But still, Happy Birthday Equality Act. Let's hope you last another decade or two!