This page is targeted at housing professionals. Our main site is at www.shelter.org.uk

Equality Act 2010: key concepts

This content applies to England & Wales

The key concepts in the Equality Act 2010.

Protected characteristics

The Equality Act 2010 prohibits discrimination against people who have a protected characteristic.[1]

The protected characteristics are:

  • age
  • disability
  • gender reassignment
  • marriage and civil partnership
  • race (this includes colour, nationality and ethnic or national origins but not immigration status)
  • religion or belief
  • sex and sexual orientation.

The Act is therefore relevant and could offer additional protection to older and disabled people, young people and care leavers, LGBT people, asylum seekers and migrants and members of the Gypsy and Traveller communities among others.

Forms of discrimination

The Act prohibits:

  • direct discrimination[2]
  • indirect discrimination[3]
  • harassment[4] and
  • victimisation.[5]

Victimisation

Victimisation occurs when an employer or service provider subjects a person to a detriment because the person has carried out (or is believed to have carried out) a 'protected act'.

A protected act is:[6]

  • bringing proceedings under the Act
  • giving evidence or information in proceedings brought under the Act
  • doing anything which is related to the provisions of the Act
  • making an allegation that another person has done something in breach of the Act.

The term 'detriment' has not been defined in the Act but it is likely that if an action has the effect of putting a person at a disadvantage or if it makes their position worse, such treatment will amount to a detriment. The victim need not have a protected characteristic in order to be protected from victimisation under the Act, for example they could have been supporting a person with a protected characteristic who is making a claim.

Harassment

Harassment is defined in the Act as 'unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual'.[7]

Harassment applies to all protected characteristics except for pregnancy and maternity, and marriage and civil partnership.

Direct discrimination

Direct discrimination occurs where a person treats another person less favourably because of a protected characteristic,[8] for example, a landlord refuses to let his premises to people of a certain ethnic group. Direct discrimination is only capable of being justified in extremely limited circumstances, ie positive discrimination towards a disabled person.[9]

The new definition of direct discrimination also covers a situation where someone is treated less favourably than another person because they are thought to have a protected characteristic (discrimination by perception) or because they associate with someone who has a protected characteristic (discrimination by association).

Indirect discrimination

Indirect discrimination occurs where a provision, criterion or practice which is apparently neutral nonetheless puts a person with a protected characteristic at a particular disadvantage.[10] An example is where a local authority applies a policy to everyone but the policy puts a disabled person at a particular disadvantage compared to others with no disabilities.  Such discrimination may be justifiable if it is a proportionate means of achieving a legitimate aim (see below).

Discrimination arising from disability[11] is a special form of indirect discrimination applicable to disabled people treated unfavourably because of something arising in consequence of their disability, for example in case of possession proceedings brought against disabled people for nuisance and anti-social behaviour caused by their disability.  Again, such discrimination may be justifiable if it is a proportionate means of achieving a legitimate aim.

Proportionate means of achieving a legitimate aim

The perpetrator of indirect discrimination has a defence if s/he can show that her/his discriminatory act was a proportionate means of achieving a legitimate aim.[12] The proportionality test will apply differently depending on whether the perpetrator is a private person or a public body but, in general, an action (for example, seeking possession) will only be proportionate if it:

  • pursues a legitimate aim
  • is rationally connected to the legitimate aim
  • is a measure which is no more than is necessary to achieve the legitimate objective.[13]

For example, in most rent arrears cases, the reduction of the arrears is likely to be a legitimate aim and, in nuisance cases, the curtailment of anti-social behaviour is likely to be good housing management practice and will also be a legitimate aim. For more information about the proportionality test as applicable when seeking possession against a disabled person, see Disability discrimination defences.

Positive action

The Equality Act allows ‘positive action’ to tackle disadvantage faced by those sharing a protected characteristic, even if it has the consequence of disadvantaging those sharing a different protected characteristic. Positive action can be justified (and be a defence to a discrimination claim) where it is proportionate. Positive action is to be distinguished from positive discrimination which is unlawful (the dividing line can be difficult to define and will be determined by the particular situation).[14]

Charities

A charity will not be in breach of its obligations under the Equality Act if it restricts any of its services to persons who share a protected characteristic, such as membership of a religious community, where that is a proportionate means of achieving a legitimate aim. This exception does not apply where the persons who benefit from the charity's actions or policy share a protected characteristic that is defined by colour.[15]

Duty to make reasonable adjustments for disabled people

The Equality Act 2010 consolidates and extends existing duties upon employers and suppliers of goods and services from the Disability Discrimination Act 1995 to make reasonable adjustments for disabled persons.

Any service provider, including private individuals and public bodies such as local authorities, must, if requested to do so by (or on behalf of) a disabled person, make reasonable adjustments to enable disabled people to use their services. The adjustments may include making information accessible for disabled people by, for example, providing it in different formats.[16]

The factors to be taken into account in deciding whether it is reasonable to make adjustments will be set out in the regulations.

See also the page on Discrimination in relation to premises for details of the duties on landlords and their agents to make adjustments to premises.

Cost of the adjustments

The cost of the adjustments cannot be passed on to the disabled person, unless expressly authorised to do so under the Act.[17] For example (when the relevant provisions come in to force) where a disabled person would require adjustments to common parts of leasehold and commonhold premises, an agreement can be made as to the costs to be paid by the disabled person.[18]

Remedies

In all cases, the person who has been the victim of unlawful discrimination (which includes direct and indirect discrimination, harassment and victimisation) is entitled to apply to the county court for damages (including compensation for injured feelings), an injunction to compel compliance with the Act or any other remedy which the High Court could award on a claim for judicial review.[19]

[1] ss.4-12 Equality Act 2010.

[2] s.13 Equality Act 2010.

[3] s.19 Equality Act 2010.

[4] s.26 Equality Act 2010.

[5] s.27 Equality Act 2010.

[6] s.27 Equality Act 2010.

[7] s.26 Equality Act 2010.

[8] s.13 Equality Act 2010.

[9] s.13(3) Equality Act 2010.

[10] s.19(2) Equality Act 2010.

[11] s.15 Equality Act 2010.

[12] s.15(1)(b) and 19(2)(d) Equality Act 2010.

[13] R (on the application of Razgar) v Secretary of State for the Home Department [2004] UKHL 27.

[14] s.158 Equality Act 2010; R (on the application of Z) v (1) Hackney LBC (2) Agudas Israel Housing Association [2019] EWHC 139 (Admin).

[15] ss.193 and 194 Equality Act 2010; R (on the application of Z) v (1) Hackney LBC (2) Agudas Israel Housing Association [2019] EWHC 139 (Admin).

[16] s.20 Equality Act 2010.

[17] s.20(7) Equality Act 2010.

[18] para 7(3), Sch.4 Equality Act 2010.

[19] s.119 Equality Act 2010.

Back to top