What will the Equality Act 2010 do for Us?

'Someone said to me, you are a lawyer, why not write about legal things? Because I ponder on legal things for my living. Because writing on legal issues makes it seem like work. Because most legal topics are fairly dry. Because there is already lots of commentary on legal issues in the UK. I feel strongly that my writing must be like an orgasm- a short and sweet, pleasurable, gushing, release.


However, I decided to make a short foray into this arena as the press went wild last week with a report that 2 jobs out of 670 on a council were reserved for black applicants. Given that positive discrimination in the United States has received such bad press (never mind they have a black President and we have Diane Abbott and Oona King), I thought that it might be useful to analyse how far Gordon has pushed the debate on equality with the passing of the new Equality Act 2010 in the wash up before the elections. In particular, I wanted to focus on what real advances it represented for us, people of colour.

I say this because the Race Relations Act did quite a lot to advance the rights of ethnic minorities here in the UK. I will never diss the 1965 (and the 1968) Act because at its time of enaction, they were indeed revolutionary. The Race Relations Act made it illegal to refuse housing, employment and public services to people on account of their ethnic background. This was in direct response to the “No Blacks, No Dogs” posters which featured on many To Let signs in London and in many pubs and restaurants and came after Enoch Powell’s Rivers of Blood speech. It was an answer to the Notting Hill Riots where white “Teddy Boys” displayed hostility to and attacked Caribbean immigrants in an attempt to “Keep Britain White”. It came after the Bristol Bus Boycott where residents of Bristol honourably defended the rights of black and Asian immigrants to work on the buses in the City.

However, unlike the affirmative action movement in the United States, the Act was negative in nature- prohibitive instead of prescriptive. While the UK Race Relations Act merely prohibited discrimination, the United States introduced a policy that organisations and bodies should take race, colour, nationality, religion and sex into consideration in employment, education, housing, public contracting and health programs. This was to encourage organisations to comply with the provisions of the 1964 Civil Rights Act. Since the introduction of the Race Relations Act, there has been no equivalent policy in the UK, to ensure that UK organisations are compliant. So has the Equality Act 2010 finally taken a step towards encouraging diversity instead of merely prohibiting discrimination?

To begin, it is useful to state that the Equality Act 2010 is aimed at streamlining and rationalising discrimination law in the UK. Instead of having one law for women, another for people with disabilities and yet separate legislation for discrimination on the grounds of race and sexual orientation for example, the new Act aims to address all forms of equal treatment before the law in the same way. The Act is therefore  very wide in ambit and deals with many significant changes in the way discrimination is defined. For example, it introduces the issue of gender pay reporting (following reports that showed that women still get paid almost 17% less than men for doing the very same job), strengthens protection for disabled employees (including indirect disability discrimination) and makes third parties such as employers who condone harassment liable. I am sure that these advances will be welcomed by all, regardless of political persuasion, gender, race or creed.

There are, however, a few provisions that are likely to have a significant effect on persons belonging to black and minority communities in Britain.

First of all, direct discrimination now covers discrimination by association and discrimination by perception. The law now recognises that a person can be discriminated against based on the perception of others, even if in fact, said perception may not correspond to what is actual fact. The quintessential example is that of a woman who wears a headscarf. She may not be Muslim, but she may be treated differently or unfairly as if she were Muslim. Interestingly for me, this may also cover the discrimination faced by persons who sport dreadlocks in the workplace. If it can be shown that this person suffered discriminatory treatment on account of the fact that others believed that he or she was Rastafarian (even though that person had never in fact smoked the sensi), then it might be that a valid case of discrimination can be made out without having to prove actual religious belief.

Secondly, the Act allows cases of dual discrimination to be brought at the same time. Under the old laws, cases involving say a black female who believed that she was discriminated against at work (let’s just say for the sake of controversy- given lower quality work than her male colleagues, or being put on less challenging deals/matters than her female colleagues) would have had to show that she was discriminated against because she was black, and then, under separate test, because she was a woman. This made discrimination very difficult to prove because of the requirement to satisfy two different tests. This proved a problem in environments which suffered from a paucity of ethnic minorities and the fairer sex. Many times there were no comparators. What do you do if your organisation has no other black people in it? Or no other women? Very often these perfectly valid claims failed. No more from April 2011.

Thirdly, and most importantly, the concept of positive action has now been introduced in UK law. The Act states that positive discrimination remains unlawful. Positive discrimination means giving more favourable treatment to someone because they have a protected characteristic (of a certain age, race, religion for example). Positive action on the other hand is lawful, but is now restricted to action such as training designed to encourage underrepresented groups to apply for particular jobs. The Act will allow employers to hire or promote someone from an underrepresented group, but only where they have a choice between two or more equally qualified candidates. This is not a form of positive discrimination (which would favour the less qualified black person over the more qualified white person). The Act calls it 'Positive action: recruitment and promotion'. It is worth noting, before the Daily Mail politburo gets at me, that the Act does not require such positive action- it merely permits it.

I do have, however, some concerns. The Conservatives indicated that they would repeal several parts of the Act if they did win the elections, particularly the sections on positive action. It may not be worth then heralding a new approach to inclusion until we can see if these sections in the Act are not likely to die a swift death. In addition, the question of what being 'equally qualified' means is not defined. Will it require roughly equivalent grades at Oxbridge? Or will good marks from a London redbrick suffice? No two experiences are ever able to be equally defined, especially when persons from BME backgrounds are less likely to attend better schools and universities. There is also the issue of whether or not the provisions will be actively used and promoted. Will employers actually use the sections on positive action to justify their choices in recruitment or promotion? Or will they be afraid of being accused of positive discrimination (illegal under the Act). The line seems to be a difficult one to draw so it might result in most employers fearful to hold the pencil.

The majority of provisions in the Equality Act 2010 are due to enter in force in October 2010.

(Image from globalemploymentlaw.com- all rights reserved)