Distinguishing unwise decision-making from lacking capacity
Dec 12 2023
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The UK’s current discrimination laws are spread across a patchwork of parliamentary acts and regulations. Consequently, the Bill will fulfil two objectives:
(1) Harmonise and restate existing discrimination laws in plain English; and
(2) Reinforce the law and strengthen progress towards equality.
How will this be achieved?
Click here to view the Equality Bill.
The Bill currently spans 210 clauses and 28 schedules. The Bill draws together the attributes that are protected under existing discrimination laws and classifies these as “protected characteristics”, namely; age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
The Bill defines each of these “protected characteristics” in greater detail. Generally, the definitions of these characteristics are broadly similar to those found under existing legislation though there are several striking differences.
The Bill outlaws discrimination based on age. However, it also goes further and also protects against discrimination directly related to membership of an age group. This would catch broad restrictions including, for example, those limiting employment to individuals over 40.
The gender reassignment definition included within the Bill is modelled on the Sex Discrimination Act 1975. One important change is the removal of the requirement that the gender reassignment took place or is taking place under medical supervision. This will benefit individuals who live in the opposite gender without actually receiving medical treatment.
Under the Race Relations Act 1976, the terms, racial groups and racial grounds are currently defined by reference to colour, race, nationality, ethnic or national origin only. In contrast, the Bill frames race as including colour, nationality, ethnic or national origins.
This leaves open the possibility that other attributes could be construed as being racial. While Employment Tribunals have always given a liberal interpretation to race, employers should remain sensitive to cultural characteristics in light of the wording of the Bill.
A person possessing a protected characteristic can complain if they are treated less favourably than their employer would treat another employee, not possessing the characteristic. This is known as “direct discrimination”. While the Bill recasts the definition of direct discrimination across all protected characteristics, as is the case currently there are still some quirks which are specific to a particular protected characteristic that should be noted:
The Bill also proscribes other forms of conduct. Less favourable treatment attributable to a combination of protected characteristics is similarly prohibited. Interestingly only two protected characteristics can be relied upon to bring a claim for “combined discrimination” though it is the intention that this will still help to protect individuals that remain marginalised by their protected characteristics.
Indirect discrimination is also harmonised across all protected characteristics (indirect pregnancy-related discrimination falling under sex discrimination). A respondent would be guilty of indirect discrimination by adopting a discriminatory provision, criterion or practice. However, if the respondent can point to an objective justification for this then it may avoid liability.
The first clause of the Bill includes a provision requiring public authorities to consider the reduction of inequalities arising from socio-economic disadvantage when making “strategic decisions”. A wide range of authorities are subject to this duty including councils, Strategic Health Authorities and Primary Care Trusts.
This represents a shift from existing equality laws towards a proactive system which promotes positive action to tackle discrimination. However, authorities bound by the provision need only have “due regard” to this objective. Finally, breach of this duty will not expose authorities to private claims.
The Equality Bill seeks to provide welcome consolidation of existing anti-discrimination legislation and go some way towards achieving real equality. The Bill introduces a number of key changes to the legislative framework which are of particular relevance to employers as highlighted above.
It is also possible further additions will be made as the Bill progresses through Parliament and we will keep you informed.Back to top