The Equality Act isn’t working

One of the final pieces of legislation from the New Labour era, the Equality Act 2010, is seen in a positive light by many.

Bringing together various existing laws, such as the Sex Discrimination Act 1975 and the Race Relations Act 1976, this monumental piece of legislation nominally protects individuals against discrimination on the basis of nine ‘protected characteristics’, including sex, race, disability, pregnancy and religion. Many see it as a bulwark against bigoted practices, a legal edifice that provides vital safeguards in the workplace and beyond.

But as my co-author, barrister Anna Loutfi, and I show in ‘The Equality Act Isn’t Working’, a new report from Don’t Divide Us (DDU), the impact of the Equality Act has been far from positive, particularly in the workplace.

Indeed, over the past few years, there has been a marked increase in the number of workplace race-discrimination claims being brought to court. As our report shows, this is mainly due to employees increasingly attributing problems at work to the ‘racist’ attitudes of colleagues or management.

That they’re doing so is not down to an actual increase in racist attitudes. Rather, it’s due, in large part, to the Equality Act and the subsequent flourishing of diversity, equity and inclusion initiatives within human-resources departments. People are being encouraged to see their workplace struggles through the prism of racial identity politics.

It should be said that the vast majority of the claims are rejected by tribunals. But they still do reputational damage to those accused. And they cost an enormous amount of time and money to conduct.

The 2022 case of Mr G Kalu and Professor O Ogueh vs Brighton and Sussex University Hospital NHS Trust illustrates the problem. Kalu, a gynaecologist, and Ogueh, an obstetrician, were both active members of the hospital’s BME Network (for black and minority-ethnic staff). Tellingly, they had been involved in four previous cases against the NHS trust in question. It’s as if they believed that any management decisions they disagreed with were signs of institutional racism. In dismissing their claims of racial discrimination, the tribunal judge felt the need to remind the complainants that he was ‘not sitting in judgment on institutional racism within the respondent organisation nor within other institutions cited or wider British society’.

Such comments are welcome. They suggest that the employment-tribunal judiciary is, by and large, still in touch with some notion of justice. Judges still want evidence of actual discrimination, and they’re willing to test that evidence, too. But there are worrying signs that the Equality Act, which takes into account the subjective feelings of complainants, is growing in influence.

For example, in the case of Mr Khansari vs Platipus Anchors Ltd, the judge dismissed Khansari’s race-discrimination claims against his employer, but upheld his racial-harassment claim. The judge ruled that colleagues making bad-taste jokes, which involved mimicking Indian accents, would credibly constitute harassment because Khansari was ‘the lone “non-white” with an Asian-background status in the office’. This, the judge concluded, led Khansari ‘rightly or wrongly to perceive that the behaviour was directed at him’. In other words, even if the incident was more innocent than it appears on paper, it could still count as racial harassment under the Equality Act.

There is another problem that the Equality Act has helped to create – it has invited the state to further police our informal relationships, looking for signs of racism everywhere. After all, its provisions apply to all workplaces and providers of services and goods – so basically pretty much anywhere outside your front door. The act has effectively given the authorities carte blanche to regulate all social relationships in public and civic places, as well as workplaces.

The problems don’t stop there. The Equality Act is also replete with logical and ethical contradictions, which is hardly surprising given it combined many different parts of UK common law with some EU directives.

There is a contradiction, for instance, between the act’s support for affirmative-action-style ‘positive action’ – that is, employer efforts designed to benefit people with certain ‘protected characteristics’ – and Section 13(5), which prohibits segregation. This conflict will be tested in court for the first time later this year, when healthcare assistant Carol Richardson brings her case against her NHS employer. Richardson, a white British woman, claims that an NHS leadership course limited to ethnic-minority staff at York District Hospital is racially discriminatory.

Of course, we can argue about the wisdom of just about any law. But at the very least, we should expect even those laws we disagree with to be based on logically and ethically coherent principles. The Equality Act fails on both counts.

As the DDU report concludes, the Equality Act needs a thorough-going review. Of course, legitimate employment protections against discrimination should be retained. But the law as it stands must be challenged. It is fuelling racial-grievance culture in workplaces the length and breadth of the country.

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