Only Relatively Equal? The unintended consequences of the Equality Act 2010

The aim and intention of the Equality Act 2010 (‘the Act’) is principally equal treatment and the promotion of equal rights. The Act brings all ‘protected characteristics’ together into one piece of legislation, all separate ‘silos’ but in theory equal before the law, no one more important than the other. The Act is the 5th generation of equality and anti-discrimination legislation in England and Wales and is the culmination of various campaigns for equality and recognition of various protected characteristics, some of which is very much ongoing. Translating these sometimes abstract concepts into law is complex and is made harder by the multiple meanings associated with equality. Categories of discrimination cannot easily be compartmentalised and many of the protected characteristics are social constructs so to list them equally within one piece of legislation will inevitably lead to perceptions of hierarchies and inequalities. Neither does the Act take account of multiple discrimination. The anticipated consequences of bringing together the disparate pieces of legislation and the myriad regulations introduced into the domestic legal framework as a result of the Employment Equality Directive 2000/78/EC into one coherent piece of legislation are obvious and desirable to the individual intended to be protected by the Act: a more coherent domestic legal framework protecting the principle of equality and preventing discrimination on one of the prescribed protected characteristics; increased levels of protection across the different equality grounds; a single body in charge of promoting these protected characteristics and human rights and greater clarity and consistency in anti-discrimination law. However, it is argued that, as a consequence of the legislation being streamlined, unanticipated/unintended consequences have emerged within the case law and public discourse on equality leading to tensions and frustrations. In reality, the protected characteristics are not necessarily equal before the law as some protected characteristics may have an impact on one’s ability to do a particular job at particular times, such as disability and pregnancy, and are subject to special rules and are treated differently rather than equally alongside other protected characteristics. Others, such as sexual orientation, sex, race and religion, should have no impact and ought therefore to be ignored by an employer when decisions are made about the individual in the workplace. However as demonstrated by religious discrimination cases and disability discrimination cases , the Act as framed can lead to tensions, entrenched attitudes and a possible (in)equality within an ‘emerging hierarchy’. The position is made more complex because different protected groups perceive the law as trying to achieve different things and therefore there are multiple meanings associated with equality. Equal treatment can lead to inequality and sometimes unequal treatment might actually be necessary to achieve equality which can lead to more favourable treatment. The perception amongst those more recently protected by the law is that they are at the bottom of a hierarchy pile, whether that be religion, disability, sexual orientation or transgender. This leads to perceptions of clashing rights and competing equalities. The Act also fails to treat people as individuals and this will be picked up in case studies on disability discrimination, religion and sexual orientation and transgender rights. Some of the causes of these unanticipated/unintended consequences as suggested by Merton (1936) ring true for the Act. Sometimes it is ignorance particularly in cases of disability discrimination. The perverse effects of developing hierarchies are arguably inevitable given the range of meanings attributed to equality and the complexity of the area particularly when trying to harmonise and streamline the law. The ‘one size fits all’ principle within the Act causes more problems for some of the protected characteristics which can lead to negative consequences. This is very true for disabled individuals and arguably for those manifesting their religious beliefs in particular ways. Equality is a complex and long term interest and although the immediate benefits of streamlining the law has obvious anticipated benefits this may have been overridden by the longer term interests of those seeking equality and the variety of ways in which this might be achieved. This paper seeks to explore the equal treatment principle, the protection offered by the Act and the resulting unanticipated/unintended consequences of the Act, and suggests that a developing hierarchy is inevitable given the way the law is framed meaning that the Act can only ever produce relative equality