Outside the Equality Act

AuthorJames Hand
DOI10.1177/1358229115593829
Publication Date01 December 2015
SubjectArticles
Article
Outside the Equality Act:
Non-standard protection
from discrimination
in British law
James Hand
Abstract
The ‘single’ Equality Act 2010 was intended to unify and simplify British discrimination
law which had grown-up piecemeal over 40 years. However, a number of protections did
not follow the standard model (as originally laid down in the Sex Discrimination Act
1975) and remained outside the unification process. Such grounds include trade union
membership and the possession of whistle-blower status and past criminal records. This
difference has been significant in the government’s reaction to the European Court of
Human Rights’ decision in Redfearn v. UK regarding membership of political parties,
where the government opted to expand these ‘other’ protections rather than amend the
Equality Act 2010. This article considers the role and status of these other discrimina-
tions which remain outside the Equality Act 2010 in light of the government’s response
to Redfearn.
Keywords
Equality Act 2010, discrimination, protected characteristics, trade union membership,
public interest disclosure, rehabilitation of offenders, political membership
School of Law, Portsmouth Business School, University of Portsmouth, Portsmouth, UK
Corresponding author:
James Hand, School of Law, University of Portsmouth, Richmond Building, Portland Street,
Portsmouth, PO1 3DE, UK.
Email: james.hand@port.ac.uk
International Journalof
Discrimination and theLaw
2015, Vol. 15(4) 205–221
ªThe Author(s) 2015
Reprints and permission:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/1358229115593829
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Introduction
There was, and is, no general equality principle within British anti-discrimination law.
Rather, as Fredman wrote in 2001, there was ‘a relatively sophisticated set of anti-
discrimination statutes [which] operates within a narrow area’ (2001, p. 149). Over the
years since then, the set of statutes grew in number and scope, and in 2008, the govern-
ment noted that there were ‘nine major pieces of discrimination legislation, around 100
statutory instruments setting out connected rules and regulations and more than 2,500
pages of guidance and statutory codes of practice’ (Government Equalities Office,
2008, p. 6). In place of this myriad web, they proposed instead a single piece of legisla-
tion, somewhat misleadingly described by some as the single Equality Act,
1
which in the
words of the Long Title would ‘restate the greater part of the enactments relating to dis-
crimination and harassment related to certain personal characteristics’. The restatement
within the Equality Act 2010 was primarily intended to simplify, and to varying extents,
unify, harmonize and strengthen, the British anti-discrimination statute book and related
guidance.
2
Whilst it has, indeed, unified much of the law and in doing so erased some of
the apparently peculiar distinctions formerly within it (discussed further below), there
are other protections from discrimination which were left untouched and these form the
focus of this article.
The now-unified provisions generally previouslyprovidedprotectioninthesame
wayaseachotherbuildingontheseminalmodellaiddownintheSexDiscrimination
Act 1975, although there were notable exceptions in the wording and scope of pro-
tection (some of which continue). However, not all protection from detriment or less
favourable treatment, be it related to one’s characteristic, conduct, contract or mem-
bership, followed the common model, and these remained outside the unification
process.
3
This disparate treatment inevitably raises questions as to a hierarchy of pro-
tections and the disparate way rights are designed and protected and, furthermore, was
of significance in the Government’s reaction in 2013 to the European Court of Human
Rights (ECtHR) judgment in Redfearn v. United Kingdom.
4
It was held in Redfearn
that the United Kingdom was in breach of Article 11 of the European Convention
on Human Rights (ECHR), as it had not taken reasonable measures to protect employ-
ees from dismissal on grounds of political affiliation. One response to the decision
could have been an extension to the protected characteristics within the Equality Act
2010, which could have opened the door to further incorporating some or all of the
excluded protections into the Act. The other response was to add to the list of protec-
tions outside of the single Act.
Having briefly set out the context of the protections provided by the Equality Act
2010, this article considers some of the significant non-Equality Act protections from
discrimination and the response of the Government to Redfearn. Consideration will
necessarily be limited to exploring the areas outside the standard model that relate to the
common theme of ‘what people are’ or ‘what they have done’ rather than the economic
circumstance of their contract (not least as, in contrast to the other areas, the United
Kingdom and European Union protection regarding atypical workers such as part-time
and agency staff, to quote Fredman (2000, p. 195), ‘come[s] down firmly on the side
of market regulation, rather than individual rights’).
5
206 International Journal of Discrimination and the Law 15(4)

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