The Equality Act 2010 comes into force on Friday 1 October 2010. A Commencement Order has been published containing provisions that explain how the transition from the old to new law will work. The Codes of Practice that accompany the Act will not, however, be in force on 1 October 2010.
After many years of consultation and uncertainty over its fate, the Equality Act 2010 finally comes into force on Friday, 1 October 2010. The Act consolidates all of our existing discrimination and equal pay law into one piece of legislation and harmonises definitions and concepts across all discrimination strands. The Act also strengthens some aspects of equality laws, in particular in relation to rights of disabled employees, the extension of rights to those associated with or perceived to be a person who has a protected characteristic, and the power of Employment Tribunals to make recommendations in successful discrimination cases which will extend to and benefit the whole workforce and not just the claimant.
A Commencement Order has been published confirming which provisions of the Act will come into force on commencement, which reflects the Government's announcement which we summarised in August's Uptodate.
The Commencement Order also contains provisions that explain how the transition from the old to new law will work in practice. The transitional provisions provide that:
- Where any unlawful conduct occurred wholly before 1 October 2010, the old discrimination legislation will apply and the claim should be brought under the relevant pre-Equality Act legislation (even if the claim is filed after 1 October 2010)
- Where any unlawful conduct arises on or after 1 October 2010 – the claim will need to be brought and defended under the Equality Act
- Where an act carried out before 1 October 2010 which is unlawful under the old discrimination regime continues on or after 1 October 2010 and is unlawful under the Equality Act, the claim can be brought under the Equality Act. This suggests that, for continuing acts which straddle 1 October 2010, the old legislation will still be relevant for the purpose of proving that the act was unlawful before October 2010, and pleadings should reflect that (e.g. for a continuing act of direct race discrimination it will be necessary to demonstrate that it was not unlawful "on the grounds of" race under the Race Relations Act 1976 before 1 October, and that it remains unlawful "because of" race under the Equality Act).
- Victimisation claims can be brought under the Equality Act where the protected act relates to something done under the old discrimination legislation regime.
The statutory Codes of Practice on employment and equal pay which accompany the Act were expected to come into force at the same time as the Act, but we understand that neither will do so on 1 October 2010. The Equality Commission's website simply says that "The Codes have been drafted through a series of consultations and are currently being prepared. We will be adding draft versions of the Codes to this page when they become available."
The Equality Act's transitional provisions provide welcome clarity on the interplay between the pre and post 1 October 2010 regimes and for confirming that the Act will not have retrospective effect.
The transitional provisions may, however, provide challenges where continuing acts straddle 1 October 2010 and care should be taken when pleading against continuing act claims to prevent complex and technical arguments being run to the effect that a defence should be struck out.
For a summary of the main provisions of the Act that impact on employers, click here.