The Equality Act isn't working

In a guest post, Alka Sehgal Cuthbert, director of Don't Divide Us, explains why the Act seems to be exacerbating divisions and encouraging workplace disagreements to be resolved through litigation.

It’s not easy to point out that there are fundamental weaknesses and contradictions at the heart of the Equality Act 2010 (EA). To say so immediately places you as someone who is against equality, whether by design or ignorance. But for a new Don’t Divide Us report, The Equality Act Isn’t Working, we analysed over 5,000 Employment Tribunal hearings where race discrimination has been the sole or an additional part of the claim – and it is clear that the EA is contributing to serious problems within the workplace that have little or nothing to do with systematic racism.

My co-author, barrister Anna Loutfi, offers a detailed sketch of the jurisprudence and historical development of the EA. In 2010, the EA was presented as a technical bundling up of the sprawl of existing anti-discrimination legislation by the then secretary of state for equalities and minister for women, Harriet Harman. However, it was much more than an organisational improvement. The EA was a combination of Britain’s traditional Common Law and the constitutional codification characteristic of American and French legal systems. It was also shaped during the 2000s, a decade where the European Convention on Human Rights (ECHR) and its domestic counterpart, the Human Rights Act of 1998, became more influential in shaping Britain’s legal landscape.

Multiculturalism in law?
The earlier Race Relations Acts and amendments of 1965, 1968, 1976 and 2000 prohibited discriminatory acts in increasing areas of public life. Article 14 of the EHRC extended the law to enshrine a legal right not to be discriminated against. This entailed a change in ethical orientation as much as language. Equality, once guaranteed by religion or politics, was now a right to be conferred by the law. Once equality was made into a positive right under the law, other group-based claims were bound to follow. Between 2016/17 to 2023/24, the number of applications for Employment Tribunal hearings doubled from 17,005 to 34,386.

Our report, based on a sample where race-discrimination claims have been alleged – often in conjunction with other claims from other employment legislation – shows a tenfold increase over a similar period, from 85 to 910, with a cumulative total of 5,152. Article 14 was once thought to be an irrelevance because most of its provision ‘was covered in essence by other substantive rights set down in the Convention’ and existing legislation. Its greater significance within the EA indicates a cultural as well as political shift from a national to a multicultural state.

The growing influence of the EHRC and various European Equality Frameworks and Directives, including the 2000 Race Equality Directive, were not mere add-ons or continuations of Britain’s previous anti-discrimination law. The cumulative effect, evidenced in the EA of 2010 and subsequent appendages, has been to pivot the law away from providing legal redress for individuals when employers have breached their negative duty to not discriminate on grounds of race, sex, or disability, and towards the law as a means to positively advance equality, eliminate discrimination and foster good relations. These are the central duties enshrined in the Public Sector Equality Duty, Part 11, section 149 of the EA.

The problem is clear: the first two goals have traditionally belonged to the realm of political action and the third, good relations, have traditionally belonged to the private or semi-public spheres. Two features in particular make the EA vulnerable to external pressures. Firstly, its over-general language lacks precise delimitations. What does ‘foster good relations’ mean in legal terms? Secondly, its incorporation of harassment, which has a lower evidential bar. Our findings suggest that litigation is being seen increasingly as the go-to means of resolving problems that in the past would have been addressed by traditional union representation and more informal conciliation practices.

Authoritarian overreach
Along with Section 4 on Protected Characteristics and Part 11, sections 148-149 on Positive Action, the reach and scope of equalities legislation has been massively expanded. It applies to virtually all places once you step out of your front door, and its remit is unbounded by concrete, objective acts. The utopianism of ‘advancing equality’ or ‘eliminating discrimination’ effectively gives the state carte blanche to regulate all social relationships.

To complicate matters further, we need to remember that the state is not what it once was. For decades, the leadership of the different branches of Britain’s administrative state have been outsourcing their work and authority to external sources. In the workplace, academia, schools, museums and art galleries, the EA is given effect indirectly through intermediaries in the burgeoning equity, diversity and inclusion (EDI) sector. We first noted this in our first two reports which looked at the use of third-party anti-racist/EDI organisations by local authorities and in schools.

The EDI/HR sector is effectively operating as a shadow administrative state. It is marked by a profound lack of accountability to either the public or to normative standards of practice. Corporations may ditch such policies when politically or economically inexpedient, but the EA’s overgeneralisation and reductive definitions of racism remain entrenched in Britain’s institutions, including the NHS, which is the largest single employer in our sample.

Disciplining employers and employees
EDI, the behemoth engendered by the EA, is not still with us because of a deep commitment to Marxism or postmodernism, as some commentators suggest. The EA, unlike the previous generation of equal opportunities legislation, is a means of disciplining employers as well as employees. Employers, unsurprisingly, attempt to meet their recently minted legal duties and minimise risks of litigation and/or reputational damage. EDI is the socially valued currency with which to do this.

Our findings suggest that at present, the employment judiciary is, by and large, doing its job and using objective tests in arriving at judgments. However, there are worrying signs that a new EA legal paradigm is becoming more influential. In the EA paradigm, objective tests become less important, and subjective tests which are part of harassment claims, such as whether feelings of hurt are genuine or not, are given more weight when considering the judgment. This leaves the law more open to pressures from political activism, or at least fosters an uncritical acceptance of culturally validated belief in a tenet of multiculturalism – that the culture of the majority needs to be treated as a sub-group like other minority cultures.

For example, the judge in the case of Khansari v Platypus Anchors Ltd, endorsed the claim of harassment because:

‘The context of him [the claimant] having the lone ‘non-white with an Asian background state in the office, leading him rightly or wrongly to perceive that the behaviour was directed at him.’ (emphasis given)

In the EA framework, we are all equal, but only in so far as we present our claims based on group-identity rather than as national citizens subject to a specific, universally applied rule of law.

From our analysis, we have found that over half the cases brought to court with claims of race discrimination also included claims of other things, like constructive or unfair dismissal, for example. These are already covered by existing employment law (just as the duty to provide single-sex toilets exists in health and safety legislation). This suggests that some employees – perhaps encouraged by solicitors, unions or other groups – may be using the EA to bolster what are really employment claims that they feel are weak on their own merits. This is an unsurprising outcome when a society valorises race as a category determining all actions, intentions and outcomes.

From our case studies, it does not appear that most employees are overt race grifters, nor that most employers are systematically racist. It does appear that there are serious structural problems to do with things like greater use of agency workers, zero-hours contracts, poor communication procedures (especially in reporting and managing complaints), unclear chains of responsibility, and so forth. These are not to do with racism, but they are hardly conducive to cultivating a sense of joint enterprise in work between employees themselves, or between employees and employers.

With the demise, or weakening, of traditional ways of mediating relationships between employee, union, employer and government, it seems workplace discontent and complaints are being increasingly experienced, and presented, as problems of racism. This is a reification of the practical problems arising from poor management, inconsistent communications and precarious work conditions. Not only is the Equality Act not working, its influence through EDI policies also seems to be actively hindering the kind of spontaneous workplace relationships that are integral to a relatively harmonious (and productive) work culture.

Alka Sehgal Cuthbert is director of Don’t Divide Us.

The new Don’t Divide Us report The Equality Act Isn’t Working: equalities legislation and the breakdown of informal civility in the workplace, is published today, Thursday 12 June. You can download a copy here.