Can Equality Act protections be replaced with common sense, as Kemi Badenoch suggests? | Equality Act 2010
For more than two decades, a significant portion of Britain’s equality legislation has required public bodies to consider the impact their decisions might have on different groups in society.
The public sector equality duty, introduced following the Stephen Lawrence inquiry, required public bodies such as local councils, police forces and hospitals to think proactively about equality law. Now this once unassailable public office is a new battleground in Britain’s culture wars.
Conservative Party leader Kemi Badenoch vowed to abolish the duty in a speech on Tuesday, arguing that it encourages public bodies to prioritize “dangerous and divisive agendas” over common sense and effective decision-making. In his opinion, he was the culprit behind ridiculous diversity policies and training programs.
Examples cited by the Conservative leader included the Bank of England’s decision to replace historical figures, including Winston Churchill, with images of British wildlife on future banknotes.
So are Badenoch’s claims substantiated by evidence? Equality law experts say many of the examples cited by critics of the duty misunderstand both its purpose and how it works in practice.
Others went further. TUC general secretary Paul Nowak accused Badenoch of wanting to legalize segregation. “This proposal would give a future Tory government free rein to harm your life chances if you are female, gay, black, disabled or working class,” he said.
The Equality Act is designed to protect people against discrimination in the workplace and wider society based on certain protected characteristics such as race, gender, disability, religion, age and sexual orientation, as well as equal pay, pregnancy and maternity rights.
The 2010 legislation, which combined most of the equality laws into one law, also introduced a public sector equality duty.
British lawyer Karon Monaghan KC, who specializes in equality and human rights law, emphasized that this duty does not require public bodies to provide a particular service or implement a particular policy. “This requires them to show due respect, which, put simply, means considering a number of objectives: eliminating discrimination, promoting equality of opportunity and promoting good relations,” he said.
He gives the example of a local government considering cutting off the library service in an area where disabled people live densely and opening a service for disadvantaged young people instead.
“So they are trying to balance these needs in the context of a limited budget. In doing so they will have to take into account the need to eliminate discrimination against disabled people and other groups, advance equality and promote good relations,” he says.
Monaghan explains that the local council should look at the potential impact of any decision on these groups and ask questions such as: How many children will be disadvantaged by the lack of youth facilities? What can they do to reduce the impact on disabled people?
When asked whether public sector workers in particular should take into account issues such as disability when dealing with people, Badenoch said he was simply calling for the return of common sense: “You don’t need a mandate to tell you to take differences into account. Most of the time the differences are obvious.”
However, experts argue that the abolition of this public duty would not only lead to increased discrimination claims but also lead to greater legal uncertainty.
Colm O’Cinneide, professor of constitutional and human rights law at University College London, said: “The duty is to impose a positive obligation on public bodies to deal with these issues and to do more than just maintain basic legal compliance, but to take proactive steps to eliminate problems that may exist, even if they do not trigger a particular risk of litigation.”
On examples given by critics of the mandate, O’Cinneide said: “Most of the critics say the whole mechanism is flawed because it effectively singles out individual topics and those discussions are somehow tangentially related to the mandate.”
Many of these decisions, such as those of the Bank of England, were not even mission-related, he added.
The bank said the reason for the decision to replace public figures with nature was a public consultation in which people were asked what they would like to see in the new notes.
According to Women’s Rights Director Estelle du Boulay, this mandate reflects hard-won progress in understanding and combating discrimination. “For women, this has been a vital tool in increasing accountability and ensuring public services properly take into account the needs of survivors of domestic abuse and violence against women and girls.”
He warned that removing the duty risked weakening “one of the few practical mechanisms that enable individuals and organizations to achieve fairer outcomes for everyone”.
Badenoch’s proposal relates solely to the public sector equality duty, but comes amid a wider debate on the right about the future of Britain’s equality laws. Reform UK went further, calling for the repeal of the Equality Act.
Monaghan said without the Equality Act, employers could refuse jobs on the basis of race, fail to make reasonable adjustments for disabled workers or discriminate against women because they are pregnant or might become pregnant.
“Do we want a society where women are not paid equal wages, black people are told they cannot have a job, and disabled people cannot get a job?” he asks.
We may get our answer in three years when the next general election is expected to be held.
