The Equality and Human Rights Commission (EHRC) has launched a consultation on its updated Code of Practice for services, public functions and associations.

As the ‘equality and human rights regulator’, the EHRC is tasked with enforcing the Equality Act 2010 (the Act), which makes it unlawful to discriminate against or harass individuals based on the nine protected characteristics. To support that work, it publishes impartial guidance to help organisations and individuals comply with the law - providing clarity to service providers, public bodies and associations on their duties under the Act.

The EHRC's Code of Practice sets out the steps that should be taken to ensure people are not discriminated against and this has recently been updated as follows:

Who has rights (chapter 2)

• This incorporates the EHRC’s technical guidance on age discrimination (originally published in March 2016).  
• It also more accurately reflects the position on disability, belief, gender reassignment and race, following developments since the original Code of Practice was published. These developments include case law relating to the definition of disability and the threshold for a philosophical belief to be protected under the Act. 

Direct and indirect discrimination (chapters 4 and 5)

• These chapters have been updated to incorporate the EHRC’s technical guidance on age discrimination. 
• They also update the current position on comparators, discrimination because of pregnancy and maternity, discrimination by association and indirect discrimination, following legislation and case law developments. These developments include case law regarding ‘ordinary’ indirect discrimination and new statutory provisions introducing ‘same disadvantage’ indirect discrimination (section 19A of the Act). 

Positive action (chapter 10)

• This chapter has been restructured and edited to clarify the explanation of the legal requirements for positive action.

Exceptions (chapter 13)

• This chapter has been substantially updated for clarity and consistency. It now reflects legislative changes in same-sex marriage (the Marriage (Same Sex Couples) Act 2013) and civil partnerships (the Civil Partnership (Opposite sex Couples) Regulations 2019). It has also been updated in line with the EHRC’s guidance on separate and single-sex service providers and to incorporate several age-specific exceptions in its technical guidance on age discrimination.

Enforcement (chapter 14)

• This chapter has been updated in line with legislative changes since the original Code of Practice, including the repeal of certain provisions relating to conciliation and a formal questionnaire procedure. The chapter has also been revised to reflect differences in terminology and procedure applicable in Scotland, England and Wales.

The EHRC is seeking input from professional advisors and those who use the Code of Practice. The EHRC wants to understand that its interpretation of the law is clearly articulated, has captured all new law and its associated impact and how it can make the code as accessible and easy to understand as possible.

You can provide feedback via the survey from 2 October 2024 to 5pm on 3 January 2025.

For more information on the updated Code of Practice, please contact me.