Equality Act 2010 Notes

ESSAY PLAN 1 – Equality Act 2010

What is equality?

Hepple and Barnard (2000)

Fredman – four types of substantive equality; 1) of results; 2) of opportunity; 3) equality as auxiliary to substantive rights; 4) broad value driven approach.

Equal chance and opportunity. Moral imperative plus waste of potential talent and skills

Sen – equality of opportunities includes both (1) the opportunity to pursue one’s chosen objectives and (2) the process of choice itself. Former can take account the outcome itself and how come to outcome.

Collins (2003) – social inclusion

Barnard (2004) – solidarity = achieve objectives of integration and participation. Social inclusion has a positive as well as a negative dimension – while the negative side of solidarity prohibits discrimination and requires the removal of any measure or practice that constitutes an obstacle to an individual’s participation, the positive side of solidarity imposes obligations to take active measures to integrate the individual into society.

Hepple – aims of transformative equality do have much in common with the ideas of social inclusion or solidarity- primary target is to assist disadvantaged people and to facilitate their integration and participation in society.

Overall aim of Equality Act is to achieve harmonisation, simplification and modernisation of Equality Law.

Lawson, 2011 – “changed the landscape of equality law in Britain”

Hepple, 2011 – two steps towards a model of reflexive regulation (McCrudden) in 2006 and 2011 Acts:

1) establishing the single Equality and HR Commission (EHRC) with extensive powers to promote equality, conduct inquiries and investigations and enforce the legislation;

2) Public sector equality duty which it was believed would make it necessary for public employers to engage with their employees and other interest groups.

Comprehensive – managed to limit the exceptions to the general principles e.g. defence of justification of direct discrimination allowed only for age discrimination and discrimination arising from disability.

Equality act is fifth generation – continuation of the move towards comprehensive equality with the significant shift to a regime based on a unitary HR perspective. Transformative equality – positive measures?

Just a lawyers’ exercise drafting??

Solanke, 2011 – Act “altered the traditional structure by bringing the nine separate statuses into a single Act. Just one statute as well as one enforcement agency (EHRC)

Solanke, 2011 – “the EqA 2010 is in textual terms a step forward yet conceptually it has not moved at all because of the atomised thinking”

Hepple, 2011 – fifth generation

100 different pieces of legislation before

Now 218 sections, 16 Parts, 28 schedules. High quality legal advice needed – people cannot afford? Without effective enforcement the rights set out in the Act will be “like paper tigers, fierce in appearance but missing in tooth and claw” (Hepple).

Substantive change

The protected characteristics

PROs – harmonisations, clarifies and extends all across 9- same tests.

Solanke, 2011 – “specificity has created a system of single-dimension silos”.

Solanke, 2011 – even the non-enacted s14: single-dimension logic of the silos underpins this new provision: it fails to centralise the synergy inherent in intersectionality.

Solanke, 2011 – singular logic... has created two blind spots: 1) thematic: i.e. fattism; where law can’t see issues. 2) structural: intersectionality e.g. race and gender e.g. Bahl –

Solanke, 2011 – “rigidity of the silos...create two problems: maturing legal framework that cannot accommodate intersectional discrimination and an inflexibility to respond to new prejudices.

Solanke, 2011 – without synergy, historicity is lost – assumed can select which characteristic damages their life; lack of choice, no scope for combination secondly, voices pushed back to margins.

Solanke, 2011 – should have been all about stigma rather than simply immutability (i.e. no choice over certain factors) so get rid of silos. A stigma is a permanent blemish or stain. Allows individuals to be seen as holistic beings.

Hepple – groups not included: children from protection against age discrimination. What about birth, social origin, political opinion and language? Immigrants, foreigners, asylum seekers? Single persons? Parents and carers.

Equality Act seems to be concerned only with status equality – particular characteristics and groups. But what about intrinsic values of human life etc – Dworkin.

Risk with status-based positive measures that if not carefully designed could reinforce stereotypes e.g. Lommers (ECJ) - decision that to provide childcare facilities for working mothers and not working fathers was legitimate and proportionate.

Fredman (2010) – “genuinely transformative change can only occur when both parents are equally responsible for childcare. Special measures for women, however well intentions, run the risk of reinforcing their primary role as child-carers and therefore perpetuates their disadvantage. This does not mean that there should be no special provision for parents. That would revert to formal equality...instead measures will only achieve real change if they refer to both parents”.

• Disability

Lawson, 2011 – disappointing that requirement for an impairment to have any effect on normal day-to-day activities, let alone an effect which is substantial and long term, has been retained: takes emphasis away from behaviour of D’s and to particularities of the C’s bodily functions and sends out message that law might just be for the few.

Medical definition might be in conflict with UN Convention on the Rights of Persons with Disabilities.

Alldridge (2006) – def of disability replicates medical model rather than social model e.g. requirement to show physical or mental impairment which has a long term and substantial adverse effect. The focus is on the individual’s medical diagnosis rather than on the handicaps or obstacles placed on disabled persons by...

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