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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

30 OCT 2012

Exploring the Equality Act 2010

The provisions of the Equality Act 2010 (‘the Act') are of wide application - most obviously in areas such as employment law and education law. Regular readers of this website will also be well aware of how the Act has given claimants in judicial review proceedings an extra string to their bow due to the public sector equality duty, which requires that public bodies must have ‘due regard' to several broadly-worded requirements (s 149 of the Act).

In this short piece I want to explore the key duties that arise from the Act which are of most relevance for public law practitioners. For simplicity, I am going to focus on an area that may be familiar to many readers: disability discrimination. However, the Act also protects the following characteristics: age, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation (see s 4 of the Act).

Key duties under the Act

There are three key duties that can be deployed under the Act:

a.       The duty to make adjustments (s 20);

b.       The duty not to discriminate (s 29); and

c.       The duty to have due regard to the need to eliminate discrimination; advance equality of opportunity and foster good relations (s 149).

The duty to make adjustments

The duty to make adjustments under s 20 requires the taking of reasonable steps in three scenarios: first, where a provision, criterion or practice puts a disabled person at a substantial disadvantage in relation to those who are not disabled; second, where a physical feature puts a disabled person at a substantial disadvantage; third where a disabled person, but for the provision of an auxiliary aid would be put at a substantial disadvantage. How s 20 is triggered in different contexts is set out in a variety of schedules to the Act, of which sch 2 makes s 20 apply to those exercising public functions.

Schedule 2 also clarifies the term ‘substantial disadvantage', which in particular, defines that ‘if a person is or may be subjected to a detriment in the exercise of the function, suffering an unreasonably adverse experience when being subjected to the detriment.'

The application of the s 20 duty to make reasonable adjustments in relation to assessments by a public authority is currently the subject of judicial review proceedings. Permission was recently granted in R (MM) v Secretary of State for Work and Pensions [2012] EWHC 2106 (Admin) which is a challenge to assessments for Employment Support Allowance on the basis that there is an on-going failure to make reasonable adjustments for those with mental health problems. Edwards-Stuart J observed that s 20 affords little room for a margin of appreciation to the public authority (see para 18). As such the court's role in assessing whether there has been a breach of the s 20 duty is not simply a reviewing role akin to conventional judicial review. The court is not concerned with whether a public body reasonably thought that reasonable adjustments had been made, but rather the court is concerned with the sharper question: was there a failure to make reasonable adjustments?

The duty not to discriminate

The duty not to discriminate in the provision of services is contained in s 29 of the Act. It also applies to anything done by those exercising public functions even if that does not amount to service (s 29(6)). As Elias LJ said in R (on the application of Staff Side of the Police Negotiating Board) v Secretary of State for Work and Pensions [2011] EWHC 3175 (Admin) at [111]:

‘Section 29(1) and (6) of the 2010 Act prohibits any person who provides a service to the public or who exercises a public function from, inter alia, discriminating against persons in an unlawful way...'

On the definition of service-provider see R (Johns) v Derby City Council [2011] EWHC 375 (Admin) at [95] (foster and care homes exempt from s 29); Re All Saints', Sanderstead [2012] Fam 51 at [63] (a priest celebrating Holy Communion not a service provider); R (on the application of Bailey) v Brent LBC [2011] EWCA Civ 1586 (local council a service provider in relation to library services). For whether a body is exercising functions of a public nature for see R (Weaver) v London & Quadrant Housing Trust [2009] EWCA Civ 587 for an analysis of that term in the context of s 6 of the Human Rights Act 1998.

For the definition of ‘discrimination' in s 29, reference needs to be made to the definition in s 15 of the Act. It states that discrimination occurs if: A treats B unfavourably because of something arising in consequence of B's disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim (s 15(1)).

In regard to the definition in s 15, two concepts need to be addressed: ‘proportionality' and ‘legitimate aims':

In terms of proportionality, it is submitted that the standard approach to proportionality applies, as originally elucidated by the Privy Council in De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 which, at p 80, proposed what has become the classic three stage test to proportionality:

a.       Is the objective sufficiently important to justify limiting a fundamental right?

b.       Are the measures designed to meet the legislative objective rationally connected to it? and

c.       Are the means used to impair the right or freedom no more than is necessary to accomplish the objective?

This formulation has become the accepted approach to proportionality - see also: Huang v Secretary of State for the Home Department [2007] 2 AC 167.

In terms of ‘legitimate aims', s 29 does not give a definition. This is in contrast to the qualified rights of the European Convention on Human Rights - such as Art 8(2). However, I would argue that in the equality arena, a legitimate aim is one that is broadly-speaking in pursuance of a lawful aim. However, this is context specific - see for instance Seldon v Clarkson Wright & Jakes (A Partnership) [2012] UKSC 16 which concerned whether measures for compulsory retirement pursed legitimate aims. It may be said that a legitimate aim is always likely to promote the public interest (see Seldon at [39]). 

It should be noted that s 15 has been characterised as amending legislation to remedy the decision in Lewisham Borough Council v Malcolm [2008] 1 AC 1399 which narrowed the scope of the statutory protection against discrimination by requiring the use of a direct comparator to demonstrate that there had been a difference in treatment (see Burnip v Birmingham City Council [2012] EWCA Civ 629 at [12] - [13] and Telchadder v Wickland (Holdings) Ltd [2012] EWCA Civ 635 at [44]).

Due regard duty

Section 149 of the Act provides a public sector equality duty which requires public authorities to have due regard to the need to eliminate discrimination; advance equality of opportunity and foster good relations.

Section 149 consolidated and replaced the various equality duties, including s 49A of the Disability Discrimination Act 1995 (introduced by s 3 of the Disability Discrimination Act 2005). Section 149 has a very similar wording to s 49A and in my view the seminal guidance from R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin) is readily applicable. Aitkens LJ, put forward six principles to be tentatively followed [90] - [96]. They are:

1.       Public bodies must properly understand the nature of their duties;

2.       The duty must be fulfilled before and at the time a particular policy is adopted;

3.       The duty must be complied with in substance, rather than ticking boxes;

4.       The duty is non-delegable;

5.       The duty is a continuing one; and

6.       A good record should be kept to show that the duty had been properly considered.

The focus of s 149 appears more general than the duties that arise under sections 20 and 29 of the Act, and is typically used to challenge policy decisions - see, for instance, R (Bailey) v Brent LBC [2011] EWHC 2572 (Admin) (challenge to cuts in library services) or R (Hurley) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin) (challenge to increase in tuition fees). However, the s 49A due regard duty has been held to apply to individual decisions taken by a public authority (see Pieretti v London Borough of Enfield [2010] EWCA Civ 1104, approving R (JL (A Child)) v Islington London Borough Council [2009] 2 FLR 515 at [114]).

Accordingly, it is unlawful for a decision to be taken by a public authority which fails to have due regard to the requirements of s 149, even in cases where the decision is a low-level or individual decision.

Conclusion

Taken together the three key duties under the Equality Act 2010 give a trio of useful grounds on which to challenge a decision of a public authority. The fact that the duties are broadly worded and apply through the decision-making process gives a would-be claimant a great deal of scope to develop equality-based arguments if they come within the protected characteristics (s 4).

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