ISSUE 3 - APRIL 2014
Equality Law Briefing

The Equality Law Project supports front line organisations to understand and use the Equality Act 2010. The Equality Act 2010 is the most fundamental overhaul ofprevious UK antidiscrimination and equality law.

For further information please contact Poornima Karunacadacharan, Equality Law Project officer on 0207 697 4092 or email


Equalities in Focus

It is one year since ROTA launched the campaign to save the Public Sector Equality Duty (PSED).  This is therefore a good point in time to look back and see where we stand in terms of equality in this country.

Last month ROTA held a conference on Shaping Mental Health Services for BMER People: Meeting the Public Sector Equality Duty.  It was an opportunity for voluntary and community sector organisations to learn about the Public Sector Equality Duty from prominent barristers at Doughty Street Chambers and to use the PSED to engage in constructive discussion with public authorities on the way mental health services are commissioned and delivered to BMER people.

At a time when much of the laws and institutions protecting equality have been repealed or weakened, it was inspiring to see voluntary and community sector organisations feel empowered and gain a sense of hope about the potential of the Public Sector Equality Duty to advance equality of opportunity.  This optimism is shared by Sir Bob Hepple in his article ‘Meeting the Challenges to Discrimination Law’ in the Equal Opportunities Review[1], where he sets out his views on the agenda for equality law in 2014.  What follows are the key points in his article, which is very useful for understanding the current landscape for equality law, the challenges and opportunities.

[1] Sir Bob Hepple, Meeting the Challenges to Discrimination Law, Equal Opportunities Review, 22/03/2014, Issue 247.

  • Challenge – The repeal of the provisions on third-party harassment set out in the Equality Act 2010, which provided protection for employees against third-party harassment such as from customers, visitors and clients.
    Opportunity – If for example the harassment is against black women, it is still possible to argue indirect discrimination as a result of a practice by the employer which unjustifiably puts women who are black at a particular disadvantage.  It is also possible to argue a breach of the common law implied contractual term of mutual trust and confidence.
  • Challenge – The repeal of the dual discrimination provisions, which is intersectional discrimination where two or more reasons operate inextricably.  This is for example where discrimination takes place against the older woman but not against the older man or the younger woman.
    Opportunity – The tribunals must be persuaded to focus on the reason why the discrimination occurred.  If a particular characteristic was a significant part of the reason for the discrimination occurred, that is sufficient.
  • Challenge – The repeal of the formal questionnaire procedure, which enabled a person suspecting unlawful discrimination to obtain information.
    Opportunity – A claimant may still write a letter before action requesting information on relevant details.  Where this is refused or ignored, and the claimant wins a subsequent case, the tribunal could award costs against the respondent.
  • Challenge – The government does not intend to bring into force the requirement to make public the information on the gender pay gap.
    Opportunity – The employment tribunals have the power to order a mandatory pay audit in any case where it finds that there has been a breach of a right to equal pay.  Furthermore, under s.77 of the Equality Act 2010 any contract clause that seeks to prevent discussion about pay between staff is unenforceable.  Although the government has decided not to require publications of audits in company reports or in its website, there must be disclosure to “relevant parties”, and this presumably includes all company employees and their representatives.
  • Challenge – Although the PSED, which was threatened, has been temporarily reprieved until 2016, the threat of repeal or serious modification remains.
    Opportunity – The PSED still offers possibilities for transformative action.  Judicial reviews remain low but there have been some high profile cases such as Bracking v Secretary of State for Work and Pensions [2014] EqLR 60, where a Minister’s decision to close the Independent Living Fund was quashed by the Court of Appeal.  There is a need for public authorities to understand more widely what it means to have due regard to the PSED.
  • Challenge – The Equality and Human Rights Commission is being disempowered by budget cuts from £70 million in 2010 to £17.1 million for “core” functions.  As a result its grants programme has been ended, its advisory and support services have been privatised, it has lost its conciliation function, and it needs to report only once every five years instead of three years.
    Opportunity – There are signs that the EHRC is adjusting to its more limited funding, and there have been successful interventions in a significant number of high-profile cases with nearly 80% success rate.
  • Challenge – Legal aid cuts and the introduction of tribunal fees have severely impeded access to justice.  The proposed new rules to judicial review will make it worse.
    Opportunity – Unions and NGO should publicise and boycott companies with discriminatory practices.
  • Challenge – Discrimination against EU migrants in respect of welfare benefits; increasing bureaucratic restrictions on non-EU workers and students; the Immigration Bill 2013 – 14 that is likely to lead to ethnic profiling and unjustified discrimination.  This includes requiring landlords to carry out checks on persons who want accommodation to ensure they are entitled to be in the country; and requiring banks to check whether people wanting to open a bank account have leave to stay.  This is likely to have an adverse impact on those who look or sound “foreign” but are born in the UK or are in the UK perfectly legally.
    Opportunity – The Scottish Government’s proposals include a constitution for Scotland that entrenches equality as a fundamental human right.  Those who oppose independence should spell out how they will entrench this right for the whole of the UK.  It is time for a guaranteed constitutional right to equality which cannot be violated simply by a parliamentary majority.

For full article by Professor Sir Bob Hepple:  Sir Bob Hepple, Meeting the Challenges to Discrimination Law, Equal Opportunities Review, 22/03/2014, Issue 247.

Case Law

Calmac Ferries Ltd v Wallace [2013] UKEATS/0014/13

22nd October 2013

Sex - Equal pay

Elizabeth Wallace and Susan McKillop, the Claimants, are employed as port assistants by Calmac Ferries Ltd, the Respondent.  The Claimants brought claims for equal pay under the equal terms provisions of the Equality Act 2010 (EqA) and identified a male outport clerk as their comparator.  The Claimants alleged that they were paid less than their male comparator who carried out like work to them.

The claimants stated that they did not allege that the pay arrangements are directly discriminatory but indirectly discriminatory.  The Claimants had not identified a practice provision or criterion on which they intended to rely.  The Respondents asserted that in order to succeed the Claimants had to establish a prima facie case of discrimination.  As such the Respondent applied to strike out the Claimants’ claims or alternatively for an Order for an order that the Claimants should pay a deposit.

It was held by the Employment Appeal Tribunal (EAT) that where a pay disparity arises for examination in a claim of equal pay, the statute requires an explanation for the difference, which is for the Respondent to prove.  This involves considering why the Claimants are paid as they are and the comparator (the male outport clerk) is paid as he is.  It is for the Respondent to prove that there is a genuine material factor, which is the cause of the disparity, and the less favourable treatment is not because of her sex.  It is then for the Claimant to show that the factor identified by the Respondent results in disadvantaging women as a group doing equal work equal to hers, compared to men doing equal work.  The EAT also held that it is not helpful when considering the equality of terms provision of the EqA to talk in terms of direct and indirect discrimination.

 Calmac Ferries Ltd v Wallace [2013] UKEATS/0014/13, Equality Law Reports, Michael Rubenstein Publishing Ltd, [2014] EqLR 115-121

Best Practice Case Study of the month

Tower Hamlets Council: promoting good relations between communities

In response to the previous duty to promote good relations between people from different racial groups, Tower Hamlets Council has been undertaking work to tackle inequality and discrimination in the borough for many years. This provided a strong basis to develop further work to tackle high profile incidents of homophobia and Islamophobia in the borough which threatened to damage relations between communities. In response to several incidents that took place between 2008 and 2009 the Council used the incoming public sector equality duty to build an effective partnership of public and community sector organisations to act together to challenge those who promoted hate and division between different parts of the local community. These partners include the police, local schools, faith communities and lesbian, gay and bisexual community groups.

In 2010 the council funded a conference on Faith Communities and Homophobia in the borough. The event was organised by a steering group of faith leaders from Christian, Jewish, Buddhist and Muslim communities and supported by Rainbow Hamlets, the borough’s lesbian, gay, bisexual and transgender forum, as well as the borough’s No Place for Hate Forum. The event was open to all but considerable outreach work was undertaken to ensure representation from a wide range of faith communities. There was a specific focus on the role of educators and dedicated workshops were run for teaching staff.

Source: Review of the public sector equality duty, Call for evidence Stonewall response [April 2013]

This case study is part of a resource developed in partnership with the Race Equality Foundation (REF) and collated by Leander Neckles, Equanomics UK.

News and events


See here for Care Quality Commission consultation on how they regulate, inspect, and rate services..

See here for Local Government Association Equality Framework.

See here for UKREN Briefing: Seven reasons why those concerned with race equality should support the EU.




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