The Equality and Human Rights Commission (EHRC) has today launched a consultation on its updated Code of Practice for services, public functions and associations.
The Code of Practice sets out the steps that should be taken to ensure people are not discriminated against. It has been updated to incorporate the EHRC’s technical guidance on age discrimination (originally published March 2016) and to reflect the legal understanding set out in the EHRC’s single sex services guidance (published April 2022).
The updated Code now also reflects significant developments in legislation and case law since it was first published in 2011. These developments include case law relating to the definition of disability and the threshold for a philosophical belief to be protected under the Equality Act.
The EHRC is responsible for upholding and enforcing the Equality Act. The equality regulator’s impartial guidance helps organisations and individuals comply with the law.
The consultation on the updated Code of Practice will help ensure it is accurate and accessible, provides clarity to service providers, public bodies and associations on their duties under the Equality Act, and helps them put the Code into practice.
Chairwoman of the Equality and Human Rights Commission, Baroness Kishwer Falkner, said:
“As Britain’s independent equality watchdog, our mission is to ensure people are treated fairly, consistent with the Equality Act.
“People with protected characteristics should not be discriminated against when using any service. However, that doesn’t necessarily mean that service providers need to treat everybody in exactly the same way. In some circumstances, a service may be provided in a different way to meet users’ needs.
“This is a complex area of law, which has evolved significantly since our statutory Code of Practice was first published, and we appreciate that service providers and legal advisors need help to navigate these challenges.
“That’s why we are updating the Code, to reflect and clarify the law as it currently stands. It is intended to be an authoritative guide – so whether you’re a shop owner or the chair of a local sports club; the manager of a bank, a hotel or a hospital; an HR professional or a solicitor – you can be confident that you are upholding everyone’s rights.”
The Code of Practice explains how the Equality Act 2010 works in relation to the provision of services, public functions and associations. It applies the legal concepts in the Act to everyday situations, with practical examples to illustrate how the law can be used to protect equality.
This will assist courts and tribunals when interpreting the Equality Act, and also support lawyers, legal advisers, trade union representatives, human resources departments and others who need to advise on the law.
Through its consultation, the EHRC is seeking input from professional advisors, as well as those who use the Code of Practice. It is asking for views on how easy the updated Code is to understand and whether its interpretation of changes to the law and its associated impacts are clearly articulated.
Notes to Editors:
The consultation on updates to the EHRC’s statutory Code of Practice is open to all and will run for three months, closing on 3 January 2025.
A number of technical amendments have been made to the Code of Practice, primarily where there has been a change or clarification of the law since the original Code was published.
Key updates include:
- Who has rights (chapter 2): This chapter has been updated to incorporate the EHRC’s technical guidance on age discrimination. It also more accurately reflects the position on disability, belief, gender reassignment and race, following developments since the original Code of Practice was published. These developments include case law relating to the definition of disability, as well as the threshold for a philosophical belief to be protected under the Act.
- Direct and indirect discrimination (chapters 4 and 5): These chapters have been updated to incorporate the EHRC’s technical guidance on age discrimination. They also update the current position on comparators, discrimination because of pregnancy and maternity, discrimination by association, and indirect discrimination, following developments in legislation and case law. These developments include case law regarding ‘ordinary’ indirect discrimination, and new statutory provisions introducing ‘same disadvantage’ indirect discrimination (section 19A).
- Positive Action (chapter 10): This chapter has been re-structured and edited to clarify the explanation of the legal requirements for positive action.
- Exceptions (chapter 13): This chapter has been substantially updated for clarity and consistency. It now reflects legislative changes in relation to same-sex marriage (the Marriage (Same Sex Couples) Act 2013) and civil partnerships (the Civil Partnership (Opposite sex Couples) Regulations 2019). It has also been updated in line with the EHRC’s guidance on separate and single-sex service providers, and to incorporate a number of age-specific exceptions contained in its technical guidance on age discrimination.
- Enforcement (chapter 14): This chapter has been updated in line with legislative changes since the original Code of Practice, including the repeal of certain provisions relating to conciliation and to a formal questionnaire procedure. The chapter has also been revised throughout to reflect differences in terminology and procedure applicable in Scotland, as well as England and Wales.
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