The Equality Act 2006 - its measures in detail
The Equality Act 2006 received royal assent on 16 February 2006. This guidance note examines those measures introduced by the Act that are of relevance to employers, including the creation of a single equality body and the establishment of a duty on public sector bodies to promote gender equality.
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The Equality Act 2006: creates a new Commission for Equality and Human Rights (CEHR) to take over the powers of the existing equality commissions and also cover the other strands of discrimination law;
gives the CEHR new strategic and monitoring powers and duties;
gives the CEHR the power to conduct inquiries and to negotiate action plans and undertakings from employers even where no unlawful act is suspected;
for the first time in the UK, permits human rights legislation to be monitored;
introduces a new gender equality duty for public bodies;
extends the law on religion or belief and sexual orientation discrimination to cover the provision of goods, facilities and services; and
amends the definitions of "religion or belief" and direct discrimination with regard to discrimination in the fields of employment and vocational training.
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Back in October 2002, the government issued a consultation paper, Equality and diversity: making it happen, reviewing the existing equality legislation and considering options for the future, including the creation of a single equality commission for Great Britain. It was envisaged that this would simplify the existing system of three separate commissions covering sex, race and disability discrimination. It was also suggested that the new commission should have further powers to promote human rights, and to advance good practice and enforce the law in the new "strands" of anti-discrimination legislation - covering discrimination on grounds of sexual orientation, religion or belief, and age - that were starting to come into force.
As responses to the consultation were favourable, in May 2004 a white paper - Fairness for all: a new commission for equality and human rights - was published, making more detailed proposals. Responses to this were taken into account in the Equality Bill, published in May 2005, which has now become the Equality Act 2006.
Commission for Equality and Human Rights
Most of the Equality Act 2006 is concerned with the establishment of a new Commission for Equality and Human Rights (CEHR). This will take over the functions of the existing commissions: the Commission for Racial Equality (CRE), the Equal Opportunities Commission (EOC) and the Disability Rights Commission (DRC). However, the CEHR's powers and duties will be far wider than those of the current commissions.
The Act provides that, at any one time, the CEHR may not have fewer than 10 nor more than 15 members, who will be selected for their experience or knowledge in the fields of discrimination or human rights. The CEHR must always include at least one commissioner who is, or has been, disabled; one who knows about conditions in Scotland; and one who knows about conditions in Wales. There will also be a disability committee, to which the CEHR will delegate those of its duties that relate to disability.
Powers of the existing commissions
General duties
The existing commissions' general duties are defined in s.53 of the Sex Discrimination Act 1975 (SDA), s.43 of the Race Relations Act 1976 (RRA), and s.2 of the Disability Rights Commission Act 1999 (DRCA). They are:
to work towards the elimination of discrimination and harassment;
to promote equality of opportunity for disabled persons, between men and women generally, and between people of different racial groups generally;
to promote equality of opportunity in the field of employment and vocational training for those who intend to undergo, are undergoing or have undergone gender reassignment;
to keep under review the workings of the SDA, the Equal Pay Act 1970, the RRA and the Disability Discrimination Act 1995 (DDA); and
to take appropriate steps to encourage good practice in the treatment of disabled persons.
The EOC also has a statutory duty to keep under review the relevant health and safety provisions in so far as they require men and women to be treated differently (s.55 of the SDA).
Codes of practice
All three existing commissions have the power to issue codes of practice (s.56A of the SDA, s.47 of the RRA and s.53A of the DDA). The codes do not have the power of law, but can be referred to by tribunals when any relevant issue of discrimination law falls to be decided. The EOC, CRE and DRC have all published codes on discrimination in employment and the EOC has also published a Code of practice on equal pay. The CRE has issued a code of practice for public authorities charged with the race equality duty.
Formal investigations
The existing commissions have the power to conduct formal investigations for any purpose connected with the performance of their duties. Such investigations must be carried out within strict statutory remits and may culminate in a report or in recommendations being made to individual organisations regarding changes in their policies or procedures, or to the secretary of state for changes in the law.
A formal investigation may be followed by a non-discrimination notice requiring a person - for example, an employer - not to commit unlawful acts and to inform the relevant commission and other persons concerned of the changes to practices and procedures that have been made to prevent a reoccurrence of the discrimination.
If, within five years of a non-discrimination notice having been served - or of a court finding that there has been an act of unlawful discrimination - the relevant act of discrimination persists, the existing commissions have the power to apply to court for an injunction to restrain the unlawful act.
At present, only the DRC has the power to negotiate agreements in lieu of enforcement action (s.5 of the DRCA).
Further, a formal investigation into a specific case - a "named person" investigation - may be held only where the relevant commission believes that the person has committed an unlawful act (R v The Commission for Racial Equality ex parte Prestige Group plc). In practice, this has meant that the existing commissions have undertaken very few formal investigations.
Race equality duty
Since May 2002, the CRE has had enforcement powers under the Race Relations (Amendment) Act 2000 in relation to the "race equality duty" imposed on public authorities. The CRE may assess the extent to which, or the manner in which, the duty has been complied with. Where it has carried out an assessment, and thinks that a public authority has failed to comply with its duty, it may give notice requiring the authority to:
comply with the duty; and
within 28 days of the notice being served, give it written information on the steps that have been, or are being, taken to comply with the duty.
If the public authority fails to comply with the notice, or any requirement in it, the CRE may apply for a court order requiring compliance.
This is a topical issue. In February this year, the CRE published a press release claiming that Whitehall was complacent over race and that 15 government departments had failed to put race equality at the heart of their service delivery.
Judicial review
The existing commissions have no special rights in respect of judicial review, but may use the rights generally available to challenge existing legislation. The commissions have done this. For example, in R v Secretary of State for Employment ex parte Equal Opportunities Commission and another, the House of Lords heard an application for judicial review from the EOC. At that time, the right to bring a claim for unfair dismissal and/or a statutory redundancy payment was conditional on the claimant having worked 16 hours or more per week for two years. The EOC successfully claimed that this length of service qualification was contrary to EU law because it was indirectly discriminatory against women, who make up the bulk of part-time workers. The law was subsequently changed.
Injunctions
The EOC and CRE have the power to apply to the employment tribunal or county court (sheriff court in Scotland) for injunctions to restrain specific unlawful acts. These are the publication of discriminatory advertisements; instructions to discriminate; or inducing a person to discriminate through the offer of benefits or the threat of detriment.
Advice and assistance
All the existing commissions have power to grant advice, assistance or legal representation to individuals in legal proceedings where:
the case raises an issue of principle; or
it is unreasonable, having regard to the complexity of the case or the applicant's position, to expect the applicant to deal with the case unaided.
The EOC and CRE may also undertake or assist - financially or otherwise - in research or educational activities that appear necessary or expedient.
Corresponding powers of the new CEHR
While the codes of practice issued by the existing commissions have played an important part in setting the standards by which the equality legislation should be judged, the commissions' strategic enforcement powers are restricted to the launching of formal investigations, which can be done only where there is a belief that an unlawful act has occurred. The commissions are also hindered by being able to give advice and assistance to individuals only where their claim raises "an issue of principle".
The Equality Act 2006 will, however, give the new CEHR a wider range of powers. It will have all the powers and duties granted to the existing commissions, but extended over all the "strands" of the discrimination legislation, now called "the equality enactments". This means that discrimination on the grounds of religion or belief, sexual orientation and age will all be brought under its remit. It also has the power to consider smaller groups or classes of person who share a common attribute within the larger groups (s.10). The Department of Trade and Industry's (DTI) explanatory note to the Act gives examples of groups - Muslim women, black or ethnic minority lesbians and gay men, or young disabled people - and comments that, although groups may not consider themselves to be "communities", the CEHR's work with groups could apply to communities as well.
Although the CEHR will undertake what were previously defined as "general duties", these are now more widely drawn (s.8). In addition, the scope of formal investigations is more closely defined. Under s.20, the CEHR may investigate only whether or not a person has:
committed an unlawful act;
complied with a requirement imposed by an "unlawful act notice"; or
complied with an undertaking not to commit an unlawful act of a specified kind or to take, or refrain from taking, other specified action.
The CEHR may conduct an investigation about an unlawful act only if it suspects that the person concerned may have committed the act.
The power to issue an "unlawful act notice" under s.21 is equivalent to the power of the existing commissions to issue a non-discrimination notice. An unlawful act notice may be given to a person who has been the subject of an investigation or may be imposed as an immediate sanction if the CEHR is satisfied that the person has committed an unlawful act. However, the requirements of an unlawful act notice on the person on whom it is served differ from those of a non-discrimination notice - see Action plans below.
The CEHR is given enforcement powers in relation to the race equality duty already imposed on public authorities under the RRA, as well as the corresponding duties that will be imposed under the DDA, from December 2006, and the SDA - see Gender equality duty below.
Under s.30, the CEHR now has express power to intervene in legal proceedings, whether for judicial review or otherwise. It also has powers to apply for a court injunction to restrain unlawful advertising or instructions or pressure to discriminate (ss.25 and 26).
The power to offer advice and assistance in legal proceedings in s.28 is wider than the commissions' current power. For example, the CEHR may now assist any individual in legal proceedings that relate wholly or partly to the equality enactments, facilitate out-of-court settlements, and advise on compromise agreements without the need to have in place a contract of insurance or indemnity. Provision is expressly made in s.29 for the commission to recover its expenses from an individual whom it has assisted in legal proceedings and who has been paid costs, whether by virtue of a court order or a settlement agreement.
New powers granted
New strategic duty
Unlike the existing commissions, under s.2 the CEHR has an overarching general duty to exercise its functions with a view to encouraging and supporting the development of a society in which:
people's ability to achieve their potential is not limited by prejudice or discrimination;
there is respect for and protection of each individual's human rights;
there is respect for the dignity and worth of each individual;
each individual has equal opportunity to participate in society; and
there is mutual respect between groups based on understanding and valuing of diversity and on shared respect for equality and human rights.
Equality health check
Under s.4 of the Act, the CEHR will be under a statutory duty to prepare a strategic plan showing the activities that it is undertaking in pursuance of its general duty. The strategic plan will have to be reviewed every three years.
Under ss. 11 and 12 it must also monitor the effectiveness of the equality and human rights enactments and make any recommendations for amendments or repeals to the government, as well as monitoring progress towards its statutory aims and giving the government a "state of the nation" progress report every three years.
Action plans
Something that may be of concern to some employers is the fact that an unlawful act notice may now require the person on whom it is served to prepare an action plan for the purpose of avoiding repetition or continuation of the unlawful act in question. As, currently, an individual is required only to desist from the unlawful act, this will represent more of a challenge.
A person who is given such a notice has six weeks in which to appeal to the appropriate court or tribunal on one of only two grounds: that he or she has not committed the unlawful act specified in the notice, or that the requirement to prepare the action plan is unreasonable. On appeal, the court may affirm, annul or vary the notice or the requirement.
The notice will specify a time by which the person must give the CEHR a first draft plan. The CEHR may recommend that it is revised; otherwise the action plan will come into force six weeks after the draft is submitted. Section 22 gives the CEHR powers to apply to the court to require the first draft or a revised draft plan to be given or, once the plan has come into force, and at any time during the following five years, to require the person concerned to act in accordance with the plan.
Agreements
Under s.23, the CEHR has power to enter into an agreement with a person under which:
he or she undertakes not to commit an unlawful act of a specified kind, and to take, or refrain from taking, other specified action; and
the CEHR undertakes not to proceed against the person by way of a formal investigation or the issuing of an unlawful act notice.
Under s.24(3), the CEHR may apply to the relevant court for an order requiring a person to comply with any undertaking given in an agreement made under s.23.
Inquiries
The CEHR is given a new power, under s.16, to conduct an inquiry into a matter relating to any of its duties and make a report of its findings. However, the report may not state that a specified or identifiable person has committed an unlawful act and may not even refer to his or her activities unless the CEHR thinks that doing so will not harm the person, or it is necessary to identify him or her for the report to reflect adequately the results of the inquiry.
If, in the course of an inquiry, the CEHR begins to suspect that a person may have committed an unlawful act, it must avoid further consideration of the issue and may commence a formal investigation. It may use information or evidence acquired in the course of the inquiry in this investigation.
In its explanatory note on the Act, the DTI has outlined the kind of inquiries that are envisaged. They could be thematic - for example, looking into the causes of unequal outcomes - or sectoral, such as looking at inequality in the uptake of health screening services or the employment of disabled people in particular sectors. They could also relate to one or more named parties.
The CEHR has powers under Sch. 2 of the Act to require a person to provide information, produce documents or give oral evidence for the purposes of an inquiry (as well as for the purposes of an investigation or an unlawful act notice). It is a criminal offence not to comply without reasonable excuse. Production of the evidence can be enforced by court order.
Other new powers
The CEHR has the power to make arrangements for the provision of conciliation services for disputes in respect of which proceedings have been, or could be, brought under, or by virtue of, any of the equality enactments (s.27).
It also has new powers to publish information, undertake research, provide education or training and give advice or guidance (s.13); and to make grants to others (s.17).
In relation to the groups that the CEHR has a duty to support, under s. 19 it may now make, cooperate with or assist in arrangements:
for the monitoring of kinds of crime affecting certain groups;
designed to prevent or reduce crime within or affecting certain groups; or
for social, recreational and other activities designed to involve members of groups.
The CEHR also has a new, pre-emptive power so that, if it thinks that a person is likely to commit an unlawful act, it may apply for an injunction - or, in Scotland, an interdict - to restrain the person from committing that act (s.24(1)).
Human rights
In addition to its powers and duties in relation to the equality enactments, the CEHR has a human rights duty.
The rights granted to individuals under the European Convention on Human Rights were incorporated into UK law by the Human Rights Act 1998 with effect from October 2000. In a regulatory impact assessment on the establishment of the CEHR, published in November 2005, the DTI quoted statistics showing that the Human Rights Act 1998 had been cited in 49% of all civil cases over a three-month period in 2002, but noted that decision-makers in public bodies had yet to "absorb and incorporate into their processes" the values inherent in the Act. In the employment field, the Act has had limited impact, as can be seen from some recent cases.
In Heath v Commissioner of Police for the Metropolisit was held that the convention right to a fair trial was not infringed by the fact that statements made at a police disciplinary board hearing could not be used as the basis of an SDA claim. Neither was it infringed in Bangs v Connex South Eastern Ltdby the fact that the tribunal had delayed publishing its decision for a year after the hearing. In McGowan v Scottish Water, the employer's use of covert surveillance to check on an employee suspected of falsifying his timesheets was held not to contravene the individual's convention right to privacy.
Under s.30(3) of the Equality Act 2006, the CEHR will be able to institute, or intervene in, legal proceedings relating to a breach of convention rights. Provided that there is, or would be, at least one victim of the unlawful act in question, the CEHR itself need not be a victim. However, no award of damages can be made in its favour.
In relation to human rights, the CEHR's scope extends further than the convention rights. In s.9, "human rights" are defined as the convention rights "and other human rights", and its listed duties extend beyond simply encouraging public bodies to comply with the Act.
Under s. 18, the CEHR is also given express power to cooperate with other human rights groups in the UK and elsewhere.
Discrimination on grounds of sexual orientation and religion or belief
Discrimination on the grounds of sexual orientation and religion or belief in the field of employment or training is already outlawed by the Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660) and the Employment Equality (Sexual Orientation) Regulations 2003 (SI 2003/1661), which have been in force since December 2003.
Parts 2 and 3 of the Equality Act now complete the anti-discrimination legislative framework by providing that it will be unlawful to discriminate on grounds of religion or belief, or sexual orientation, in the provision to individuals of goods, facilities and services, education, use and disposal of premises, and exercise of public functions.
Part 2 of the Act contains the necessary legislation in regard to discrimination on grounds of religion or belief, while, with regard to sexual orientation discrimination, Part 3 enables the secretary of state to bring in regulations at a later date.
The Act also makes some small but important changes to the Employment Equality (Religion or Belief) Regulations 2003. Section 77 amends reg. 2(1) to extend the definition of religion or belief to include "lack of religion" and "lack of belief". The requirement that a philosophical belief be "similar" to a religious belief is also removed.
At present, reg. 3(1) states that person A discriminates against person B if, on the grounds of religion or belief, A treats B less favourably than he or she treats or would treat other persons. This is amended by s.77 of the Act to read that discrimination occurs if "on the grounds of the religion or belief of B or of any other person except A (whether or not it is also A's religion or belief) A treats B less favourably than he treats or would treat other persons".
This is intended to clarify that direct discrimination can occur even if it is another person's religion or belief, rather than B's, that constitutes the grounds for discrimination. It is irrelevant whether the victim of the discrimination is of the same religion or belief as the perpetrator of the discrimination - for example, where a manager discriminates against an employee of the same religion on the basis that the employee associates with an employee of another religion.
Part 4 of the Equality Act 2006 introduces new legal obligations on public authorities in the field of sex discrimination. It inserts a new s.2 1A into the SDA to make it unlawful for a public authority exercising a function to do any act that constitutes discrimination or harassment under the SDA. It also makes provision for public authorities to have a gender equality duty, just as they already have a race equality duty and will have a disability equality duty from December 2006. The EOC has called this "the most significant change in gender equality legislation for 30 years" and is already consulting on the terms of a code of practice (see Consultation watch ).
Section 84 inserts a new s.76A into the SDA to provide that public authorities shall, in carrying out their functions, have due regard to the need to:
eliminate unlawful discrimination and harassment; and
promote equality of opportunity between men and women.
This is referred to as the "general duty". Meanwhile, s.85 inserts new ss.76B, 76C and 76D into the SDA to provide that the secretary of state - or Scottish ministers, as appropriate - may, by order, impose on a person to whom the general duty applies, any duties that he thinks will ensure better performance of those duties. Such duties are referred to as "specific duties" and are to be detailed in regulations yet to be published.
The way ahead
The Equality Act 2006 will be brought into force by statutory instruments in due course. It is anticipated that the gender equality duty will be imposed on public authorities from April 2007.
Under s.36(3) of the Act, the existing commissions will cease to exist by 31 March 2009. It is expected that the CEHR will take over the functions of the EOC and DRC in October 2007, and those of the CRE in 2009.
The creation of the CEHR should make it easier for the government to ensure that there is consistency in the interpretation and future development of the equality enactments, as there will only be one body - the CEHR - monitoring them.
What will concern employers more than its new strategic powers is that the CEHR may now ask them to prepare action plans, enter into undertakings, or assist with the conduct of an inquiry - even where no unlawful activity is suspected - and may enforce their cooperation if it is not given willingly.
However, it will still be the case that there will be no compensation available to victims, even if enforcement action by the CEHR reveals losses suffered by individuals as a result of discrimination. They will continue to be required to bring their own claims under other parts of the equality enactments, so what has been termed an "iron curtain" will still exist between strategic and individual action in their enforcement.
The existence of a public sector duty applying to all the equality Acts, and the creation of the CEHR, with all its new powers as the only enforcing body, should provide, as the government has said, "a flexible graduated means of securing improvement", so that public sector bodies are more responsive to the diverse needs of the community in their policies, provision of services and capacity as employers.
The government has not yet, however, completed its two reviews into the root causes of inequality and the effectiveness of the current anti-discrimination legislation, which were announced in February 2005. The Equalities Review is a "root and branch review", investigating the causes of persistent discrimination and inequality in British society. Its report is due in summer 2006.
The DTI Discrimination Law Review, set up to address inconsistencies in the current anti-discrimination legislative framework, will then consider the Equalities Review report before communicating its own findings, probably later in 2006. The DTI has said the reviews should lead to a Single Equality Bill, bringing all the equality enactments into one place and giving the CEHR a single coherent legal framework over which to preside.
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Equality Act 2006 8 Equality and diversity (1) The commission shall, by exercising the powers conferred by this Part - (a) promote understanding of the importance of equality and diversity, (b) encourage good practice in relation to equality and diversity, (c) promote equality of opportunity, (d) promote awareness and understanding of rights under the equality enactments, (e) enforce the equality enactments, (f) work towards the elimination of unlawful discrimination, and (g) work towards the elimination of unlawful harassment. … 33 Equality and human rights enactments (1) In this Part "the equality enactments" means - (a) the Equal Pay Act 1970, (b) the Sex Discrimination Act 1975, (c) the Race Relations Act 1976, (d) the Disability Discrimination Act 1995, (e) Part 2 of this Act [discrimination on the grounds of religion or belief in the provision of goods, facilities and services], (f) regulations under Part 3 of this Act [discrimination on the grounds of sexual orientation in the provision of goods, facilities and services], (g) the Employment Equality (Sexual Orientation) Regulations 2003 (SI 2003/1661), and (h) the Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660). [Note: There
is no age discrimination legislation in force as yet, but this is expected in
October 2006.] |
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Equality Act 2006 9 Human rights (1) The commission shall, by exercising the powers conferred by this Part - (a) promote understanding of the importance of human rights, (b) encourage good practice in relation to human rights, (c) promote awareness, understanding and protection of human rights, and (d) encourage public authorities to comply with section 6 of the Human Rights Act 1998 (compliance with convention rights). (2) In this Part "human rights" means - (a) the convention rights
within the meaning given by section 1 of the Human Rights Act 1998,
and |
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Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660) [Prior to Equality Act 2006 amendments] 2 Interpretation (1) In these Regulations, "religion or belief" means any religion, religious belief, or similar philosophical belief. … 3 Discrimination on grounds of religion or belief (1) For the purposes of these Regulations, a person ("A") discriminates against another person ("B") if - (a) on the grounds of religion or belief, A treats B less favourably than he treats or would treat other persons; … (2) The reference in paragraph (1)(a) to religion or belief does not include A's religion or belief. [After Equality Act 2006 amendments] 2 Interpretation (1) In these Regulations - (a) "religion" means any religion, (b) "belief" means any religious or philosophical belief, (c) a reference to religion includes a reference to lack of religion, and (d) a reference to belief includes a reference to lack of belief. … 3 Discrimination on grounds of religion or belief (1) For the purposes of these Regulations, a person
("A") discriminates against another person ("B") if - |
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