How Equal is the Equality Act 2010? A Critical Assessment of the Effects of Harmonisation of Discrimination Law with Regard to Age and Disability Claims.
36 Pages Posted: 12 May 2017
Date Written: May 12, 2017
The Equality Act 2010 (EqA) was introduced not just to combine nine separate pieces of UK discrimination law into one Act, but to raise the standard of protection from discrimination, through harmonisation, simplification and modification of equality law.
The purpose of this paper is to investigate whether or not the Act has achieved these ambitions, by focusing on Age and Disability case law. These protected characteristics were chosen because their case law histories before 2010 are distinctly different. Prior to 2010, legislation concerning Age Discrimination recognised that Age can be used as a legitimate deciding factor in pursuit of employment or social policies. As a result, direct discrimination could be justified in pursuit of such aims, which allowed a degree of flexibility within Age Discrimination case law. Disability on the other hand, did not require any such derogations, and as a result case law did not enable Respondents to justify acts of direct discrimination in the same manner as Age.
A further reason for choosing Age and Disability is that the EqA includes two clauses relating to both characteristics; section 13(2) Age and section 15(1)(b) Disability; which are mirror images of each other. If the EqA has raised the standard of protection to disadvantaged groups through harmonisation, case law involving sections 13(2) and 15(1) (b) should demonstrate that both protected characteristics are being treated in a consistent and equitable manner.
Therefore the question of whether or not the Act had achieved its ambition of raising the standard of protection through harmonisation, is tested by assessing whether or not case law following the introduction of the EqA has treated two protected characteristics which have distinctly different case law histories, in an equitable manner.
To conduct this analysis, the following research looks at twenty three cases heard in either the Employment Appeal Tribunal, Court of Appeal or Supreme Court between 2014 and 2016, which involve a defence that either Age or Disability Discrimination was justified in pursuit of the Respondent’s legitimate aims.
The conclusion is that protection in Age Discrimination is higher than that described in pre 2010 case law. However protection available to disabled people has been lowered by the EqA. In particular case law shows that Respondents can successfully rely on a defence of pursuing their ‘legitimate aims’ of protecting public money, and minimising disruption in the workplace, over the need to accommodate disabled Employees.
Keywords: Equality Act 2010, Disability, Age, Discrimination, Proportionality, Comparators
Suggested Citation: Suggested Citation