A Practical and Useful Guide to the Equality Act 2010
Following the introduction of the Equality Act 2010, the Equality and Human Rights Commission has been tasked with completing a consultation with a view to preparing Codes of Practice to assist institutions and businesses in their aim to be compliant with the Equality Act. In order to assist Further and Higher Education providers, the Commission is drafting the Code of Practice in Further and Higher Education.
While the Codes of Practice are not intended to be binding on courts or tribunals, they are intended to be persuasive in hearings. The intention therefore is to create a code that users can feel confident in and which will assist them in applying the provisions of the Equality Act 2010.
The draft Code of Practice in Further and Higher Education consultation ran from 1 October 2010 to 31 December 2010. The Commission originally decided to present the Code before Parliament in February 2012, however, it now looks more likely that it will be set before Parliament in Summer 2012. The Commission hopes that the draft will explain the new statutory provisions to Further and Higher Education providers and also help to ensure that the law is applied consistently and fairly by law courts and tribunals.
Of course, while the Equality Act 2010 sought to amalgamate all of the previous discrimination legislation, it also effectively codified parts of the law which developed because of case law. This has resulted in the inclusion of disability discrimination by association, discrimination by perception and discrimination which arises from a disability. The Code will be quite useful to Further and Higher Education providers in that it provides practical examples of such situations.
In terms of discrimination arising from a disability the draft Code provides the following example:
A Further Education College excludes its students with autism for saying inappropriate things to a tutor. The student does this because he doesn’t realise he shouldn’t say these things. The College has excluded other students for inappropriate behaviour as bad as this. However, the student with autism has been treated in a detrimental way because of something which arises from his autism, and this may amount to unlawful discrimination unless it can be shown to be proportionate.
In terms of disability by association, the Code gives the following example:
During freshers week, two university students go along to the Christian Union stall to sign up. One is chair of the lesbian, gay, bi-sexual and transsexual society and is gay. The other is a friend and not gay. They are both told that the Christian Union has no more places available so they cannot join up. Some time later, one of them sees a group of four men sign up to the society. The friend could also complain of discrimination because of his association with his friend who is gay.
While the following example is provided to illustrate a situation of discrimination by perception:
A course co-ordinator at a University does not offer a placement at a catholic primary school to a student on a teaching course because they think he is gay and are worried that the school will be ‘uncomfortable’ with a gay student. Despite the fact that the student is not gay, this would still be direct discrimination on the grounds of sexual orientation.
The above are just three of the many practical examples that will prove useful in assisting Further and Higher Education providers in interpreting the provisions of the Equality Act 2010. Despite the fact the Code is a hefty 251 page document, it nonetheless will prove to be a useful tool both for Further Education providers and for people attempting to enforce their rights in terms of the Equality Act 2010. There is no doubt that come its final completion, a copy of the Code will be a valuable resource for all working in the education sector.
About the author
Natalie is a Partner and leads the Employment Law & HR team and specialises in education.