Chapter 1 - Introduction

1.1 The Equality Act 2010 (the Act) covers discrimination, harassment and victimisation because of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. These nine categories are known in the Act as ‘protected characteristics’.

1.2 An important purpose of the Act has been to unify the different pieces of legislation that had previously developed and which outlawed discrimination, harassment and victimisation against people with different protected characteristics, where appropriate.

1.3 Discrimination, harassment and victimisation in most areas of activity is unlawful under the Act, subject to certain exceptions. These areas of activity include:

• employment and other areas of work
• education
• housing
• the provision of services
• the exercise of public functions
• membership of associations

1.4 Different areas of activity are covered under different parts of the Act.

Part 3 of the Act is about discrimination, harassment and victimisation in the provision of services and the exercise of public functions.

Part 4 is about discrimination, harassment and victimisation in the sale, letting, management and occupation of premises, including housing.

Part 5 is about employment and other work-related situations.

Part 6 is about education including schools, further education, higher education and general qualifications bodies.

Part 7 is about discrimination, harassment and victimisation by membership associations.

A person may have duties under more than one Part of the Act, for example, where they employ people and provide services to customers.

1.5 The Equality and Human Rights Commission (the EHRC) has prepared and issued this code (referred to as the ‘Code’) based on its powers under the Equality Act 2006. It is a statutory Code. This means it has been approved by the Secretary of State and formally laid before Parliament.

The Code does not impose legal obligations. Nor is it an authoritative statement of the law: only the courts and tribunals can provide such authority. However, the Code can be used in evidence in legal proceedings brought under the Act. Courts and tribunals must consider any part of the Code that appears relevant to any questions arising in such proceedings.

If providers of services, those exercising public functions and associations follow the guidance in the Code, it may help them avoid an adverse decision by a court in such proceedings.

1.6 This Code covers discrimination, harassment and victimisation in services and public functions as set out in Part 3 of the Act. It also covers discrimination, harassment and victimisation by associations, as set out in Part 7.

1.7 Part 3 of the Act is based on the principle that people with the protected characteristics set out in the Act should not be discriminated against, harassed or victimised when using any service provided publicly or privately. That is the case whether that service is given for payment or not. This does not necessarily mean that service providers should treat everybody in the same way; in some circumstances a service provider will need to provide services in a different way to meet the needs of people. For example, the parts of the Act concerning positive action, single sex services and reasonable adjustments for disabled people make provision for this. The steps that service providers should take to ensure that they do not discriminate, harass or victimise are explained in this Code.

1.8 Public authorities carrying out ‘public functions’ are also covered by Part 3 of the Act, and their duty not to discriminate, harass or victimise when carrying out these functions is explained in this Code. Other organisations in the private or voluntary sectors are also covered by the same provisions in the Act when they are carrying out public functions. ‘Public functions’ are defined as in the Human Rights Act 1998 and are often carried out under a statutory power or duty, such as policing, licensing or determining the framework for benefit entitlement.

1.9 Membership associations are also covered in this Code as these organisations generally provide services or other benefits to their members, associates or guests. The provisions relating to associations are found in Part 7 of the Act. Under the Act, associations are bodies which have at least 25 members, have membership criteria, and have a process of selection for members. Only associations that meet these criteria have obligations under this part of the Act. This will include many private clubs and political parties.

1.10 This Code applies to England, Scotland and Wales (read paragraphs 3.19 to 3.24 for more information on the territorial scope of the Act).

1.11 For services and public functions (Part 3 of the Act), protection against age discrimination and harassment related to age is limited to those aged 18 and over. For associations (Part 7 of the Act), the protection covers individuals of any age. There are also several exemptions applicable (read paragraphs 13.244 to 13.299).

1.12 The Act does not provide protection against discrimination because of marriage and civil partnership in the areas covered by this Code (Parts 3 and 7 of the Act). Therefore, this Code does not cover discrimination because of this protected characteristic in the provision of services, the exercise of public functions or by associations.

1.13 The main purpose of this Code is to provide a detailed explanation of the Act. This will assist courts when interpreting the law and help lawyers, advisers and others who need to apply the law and understand its technical detail.

1.14 The EHRC has also produced practical guidance for service providers, those exercising public functions, associations and members of the public which assumes no knowledge of the law. This may be more helpful and accessible for people who need an introduction to the Act. It can be downloaded from the EHRC’s website.

1.15 This Code, together with the practical guidance produced by the EHRC, will:

• help service providers, those exercising public functions and membership associations to understand their responsibilities and help to avoid complaints and discrimination claims
• help members of the public to understand the law and what they can do if they believe they have been discriminated against, harassed or victimised
• help lawyers and other advisers to advise their clients
• give guidance to the courts on matters designed to ensure or facilitate compliance with the Act

1.16 Public authorities have a duty under the Human Rights Act 1998 (HRA) not to act incompatibly with rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) (s.6 Human Rights Act 1998). The public functions covered by this Code are functions of a public nature as defined in the HRA.

1.17 Article 14 of the Convention prohibits discrimination when enjoying Convention rights. So, if a public authority or any other body discriminates in breach of the Equality Act when carrying out a function of a public nature, where this engages a Convention right it may also amount to a breach of the Convention. Equally, discrimination under Article 14 could also be a breach of the Equality Act where it is based on a characteristic protected under the Act.

1.18 Courts and tribunals have a duty to interpret primary legislation (including the Equality Act 2010) and secondary legislation in a way that is compatible with Convention rights, unless it is impossible to do so (s.3 Human Rights Act 1998). This duty applies in any claim brought under the Act, whether a public authority is involved in the case or not, and even if the case concerns something other than the exercise of a public function. This means that in any discrimination claim brought under the Act the court or tribunal must ensure that it interprets the Act compatibly with Convention rights, where it can.

1.19 Because of the close relationship between human rights and equality, it is good practice for those exercising public functions to consider equality and human rights together when drawing up equality or human rights policies.

1.20 Though all service providers have the same legal duties under Part 3 of the Act, the way that these duties are put into practice may be different. Large and small service providers may comply with their duties in different ways. For example, small service providers may have more informal practices, fewer written policies and be more constrained by financial resources. However, no service provider is exempt from duties under Part 3 because of size.

1.21 Chapter 1 (this chapter) introduces the Code.

Chapter 2 explains the protected characteristics of age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. As explained above, the characteristic of marriage and civil partnership is not covered by this Code.

Chapter 3 explains who has obligations under Part 3 and Part 7 of the Act. It explains how some services, such as employment services, are covered by other parts of the Act and are included in different Statutory Codes of Practice.

Chapter 4 explains direct discrimination, including segregation (in relation to race). It also explains when it is unlawful to treat a woman unfavourably because of her pregnancy and maternity.

Chapter 5 explains indirect discrimination.

Chapter 6 explains discrimination arising from disability.

Chapter 7 explains the duty to make reasonable adjustments for disabled people, including the duty to change a provision, criterion or practice; the duty to provide auxiliary aids or services; and the duty to make reasonable adjustments to physical features.

Chapter 8 explains the three types of harassment, including sexual harassment.

Chapter 9 explains other unlawful acts, namely victimisation and instructing, causing, inducing, or aiding discrimination.

Chapter 10 explains the positive action provisions as they relate to Part 3 and Part 7 of the Act. It explains the measures the Act permits organisations to take which may involve treating groups differently to address disadvantage, meet different needs, or improve low levels of participation.

Chapter 11 explains the provisions of Part 3 as they relate to services and public functions. It explains what is meant by a 'service' and 'public function' and what discrimination (or other prohibited conduct) looks like in practice. It also sets out those services and public functions to which Part 3 does not apply.

Chapter 12 explains Part 7 of the Act which imposes obligations on associations. It explains what is meant by an association and sets out when associations can lawfully restrict their membership to persons who share a particular characteristic. It includes the provisions that relate to political parties.

Chapter 13 explains exceptions which permit conduct that would otherwise be unlawful under the Act.

Chapter 14 deals with enforcement of Part 3 and Part 7 by the civil courts.

Appendix contains further information about the meaning of disability in the Act.

1.22 Examples of good practice, caselaw and how the Act is likely to work in different situations are included. They are intended to illustrate the principles and concepts used in the legislation and should be read as such. The examples use as many different protected characteristics as possible, in a variety of contexts relating to services, public functions, and associations, to demonstrate the breadth and scope of the Act.

1.23 In this Code, ‘the Act’ means the Equality Act 2010. References to sections and Schedules of the Act are shown in brackets, abbreviated as ‘s’ and ‘Sch’ respectively. Occasionally other legislation or regulations are also referred to in brackets. Where that is done, the full title of the legislation or regulations is included.

1.24 Under the Act (s.25), for all protected characteristics except disability and pregnancy and maternity, ‘discrimination’ relating to service providers, persons exercising public functions and associations means:

• direct discrimination
• indirect discrimination

For the protected characteristic of disability, under the Act (s.25(2)) ‘discrimination’ also means:

• discrimination arising from disability
• a failure to make a reasonable adjustment

Discrimination because of the protected characteristic of pregnancy and maternity is defined separately under the Act (s.17).

These forms of discrimination are discussed in:

• Chapter 4 – Direct discrimination
• Chapter 5 – Indirect discrimination
• Chapter 6 – Discrimination arising from disability
• Chapter 7 – Disabled people: reasonable adjustments

In this Code, unless specifically indicated otherwise, the term ‘discrimination’ is used in the same way as in the Act. For example, ‘race discrimination’ would include both direct race discrimination and indirect race discrimination.

1.25 This Code refers to the provisions in the Equality Act which are in force at the time of publication.

There may be changes to the Act in relation to the areas covered by this Code. Other legislation may affect the duties explained in the Code.

Decisions of the courts when applying and interpreting the Act may clarify particular provisions.

Readers of this Code will need to keep up to date with any developments that affect the Act’s provisions and should also be aware of the other statutory codes issued by the EHRC. Further information can be obtained from the EHRC’s website.

1.26 Copies of the Act and regulations made under it can be purchased from The Stationery Office. The Act can also be accessed online. Separate codes covering other aspects of the Act are also available from The Stationery Office. The text of all the EHRC’s codes (including this Code) and guidance relating to the codes can also be can be accessed on the EHRC website.

1.27 Questions, comments or information about alternative formats can be emailed to correspondence@equalityhumanrights.com.