How The Equality Act in fact mandates discrimination and why this should be changed
- Apr 15
- 9 min read
The Equality Act 2010 continues to attract widely differing reactions. The Reform Party now proposes to repeal it completely on day one. Meanwhile Labour MP, Nadia Whittome, calls for parliament to amend it to ensure that single sex spaces are “trans-inclusive”.
A more nuanced critique is here offered by a young member of the Society. “Luna” argues that the Act’s policies are self-contradictory: its positive action and public sector equality duty provisions actually mandate discriminating on the basis of protected characteristics. She calls for a thorough reassessment to restore legislation to the original aim of people being judged as individuals and not by their demographic traits.
It is an uncontentious fact that equality before the law is a fundamental element of the British constitutional principle of the Rule of Law – a principle which although having been given its modern constitutional significance by Dicey, is in fact deeply rooted in British tradition reaching back to Magna Carta. How then, can this be reconciled with the Equality Act 2010, which operates de facto with a quasi-constitutional status in cultural and administrative practice, yet directly contravenes that principle? The short answer is that it simply cannot. It is constitutionally incoherent.
Although the Equality Act consolidated a body of long-established legislation, most notably the Sex Discrimination Act 1975 and the Race Relations Act 1976 which sought to prevent unequal treatment by public and private bodies, not mandate it, it also introduced new duties. The objection is not to the prohibition of discrimination, but to the new legislative move towards mandated differential treatment under the guise of ‘Positive Action’ and ‘Public Sector Equality Duty’. Positive action which has materialised in everyday life through the framework now described as diversity, equity, and inclusion (DEI), generates profound philosophical, legal, and practical concerns.
Positive Action
Section 158 of the Equality Act states that a person who ‘reasonably thinks that – (a) persons who share a protected characteristic suffer a disadvantage connected to the characteristic, (b) persons who share a protected characteristic have needs that are different from the needs of persons who do not share it, or (c)participation in an activity by persons who share a protected characteristic is disproportionately low’ may take ‘any action which is a proportionate means of achieving the aim of— (a) enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage, (b) meeting those needs, or (c) enabling or encouraging persons who share the protected characteristic to participate in that activity’. Section 158 applies generally.
Section 159 applies the same law to recruitment and promotion specifically, with the added subsection that the person with the protected characteristic may be treated more favourably than their co-applicant without said characteristic if ‘A is as qualified as B to be recruited or promoted, P does not have a policy of treating persons who share the protected characteristic more favourably in connection with recruitment or promotion than persons who do not share it, and have a policy of treating persons who share the protected characteristic more favourably in connection with recruitment or promotion than persons who do not share it, and taking the action in question is a proportionate means of achieving the aim referred to in subsection’.
The first problem here is that the Act is operating under an outdated assumption that certain protected characteristics confer disadvantage. Whatever the historic case, this assumption is simply not reflective of modern Britain, and is an actively misleading indictment of the British state. This is not a lightly made claim, but rather one supported by data. The UK anti-racism organisation ‘Don’t Divide Us’ found in a 2025 report that only 5% of race discrimination claims have been upheld in employment courts. This naturally demands a reassessment of the act’s legal and political assumptions, but also an examination of a structural imbalance which sees employers bearing heavy financial expense as employment tribunals typically do not operate on a loser-pays basis meaning that less than 1% of successful employer respondents receive a costs award. For example, in the year 2023/24 only 153 costs awards were made in favour of respondents. The question remains, what is the deterrent against pursuing weak discrimination claims?
Buying into the idea of characteristic-based disadvantage is not ideologically neutral, (and indeed at greater inspection there is a concerning lack of ideological neutrality in the Equality Act generally), but instead applies a Marxist interpretation of identity politics which reduces the individual to group status that has emerged from recent yet influential academic theory.
On a briefer yet important critique, it is worth mentioning that if discrimination on the basis of protected characteristics is already prohibited by law, the need for such measures either implicitly concedes that the Equality Act has failed on its own terms, or makes it impossible to justify claims of disadvantage as there is an existing comprehensive legal framework against such discrimination.
Another glaringly obvious problem is that both sections leave positive action unrestrained as it rests on ‘proportionate means of achieving the aim’. It would not be unreasonable or baseless to imagine proportionality here viewed under absurd interpretations considering that ‘the end justifies the means’ has long been leftist scripture. Additionally, the ‘aim’ trying to be achieved is not defined. Is the aim proportional representation? Is it equality of outcome? Is it elimination of perceived systemic barriers? Or is it left to the imaginations of the decision-makers? Without a specific end, the already problematic test of proportionality becomes an empty one without reasonable limitation. Herein lies the practical problem of how positive action/DEI policy is enforced, and indeed there have been increasing findings of discrimination arising out of such policy (Mr P Turner-Robson and others v The Chief Constable of Thames Valley Police). DEI policy has manifested itself in various ways such as explicit exclusion of particular groups perceived as sufficiently represented, different sets of entry standards required for university admission, job recruitment and promotion, and unconscious bias deconditioning. With increasingly embedded and enforced DEI policy and success rates of discrimination claims so low, it will be particularly interesting to see what proportion of those successful cases arise from positive action or DEI-driven policies, and certainly any such upheld cases will stand out starkly.
If we return to section 159, we find that it is strikingly unconservative as it permits preferential treatment on the basis of protected characteristics, and threatens meritocracy. By permitting preferential treatment on the basis of protected characteristics, not only does it depart from individual assessment and dangerously reduce the individual to a statistic within a collective which is to essentially strip one of their dignity and humanity, it also leads to unfair and unmeritocratic outcomes. Despite this individualistic conservative opposition, the Act is carefully constructed so as not to operate overtly. Indeed the provisions may seem balanced; it is only through the accompanying commentary that the full extent of the unfairness becomes apparent.
The commentary to section 159 explains that the question of equal qualification is ‘not a matter only of academic qualification’, but a general judgement made by the decision maker. In practice this eliminates an objective standard, especially in the current context where DEI has become dogma and representation and equality are viewed not as legitimate aims, but the ultimate ones. To pay no heed to academic qualifications is especially problematic in the sphere of university admissions and graduate recruitment where academic achievement is often the only differentiator, and this has resulted in claims that the University of Oxford (among other Russell Group universities) is lowering admissions standards and abandoning traditional exams in a bid to engineer demographics and minimise achievement disparity. Such DEI policy will almost certainly have a measurable negative effect on the prosperity and performance of British institutions in an increasingly competitive global arena, but even setting aside practical consequences, a more fundamental question of philosophy and morality remains: why should representation trump merit? Furthermore, I reject the premise that representation is achieved through shared characteristics such as race, gender, or sexual orientation. Individuals do not see themselves reflected in others simply because they share an immutable trait. I wish to make the case that meaningful representation is found in shared values; it is ethical, not biological.
An incident in 2021 at the University of Essex, where Professors Jo Phoenix and Rosa Freedman had their invitations to speak rescinded due to their gender critical views, demonstrates how DEI ideology manifests in a way that undermines the constitutional principle of freedom of expression – the principle which should be at the heart of every university. Following the Reindorf report finding that this was a violation of the university free speech policy, the university Vice-Chancellor issued a formal apology to both professors saying that there is a need to manage the balance between freedom of speech and our commitment to diversity, equality, and inclusion. Such a statement leaves one asking why is the commitment to DEI so important, and why has it come to operate as a de facto constitutional principle, and one capable of compromising freedom of speech?
Another concerning point found in the commentary to section 159 is that ‘the section is intended to allow the maximum extent of flexibility to address disadvantage and under-representation where candidates are as good as each other, within the confines of European law’. The fact that the Act mandates maximum flexibility only further exacerbates the previous issues raised regarding proportionality and undefined aims. This sits uneasily with Dicey’s conception of the rule of law which emphasized legal certainty and warned against discretionary powers. This is not surprising since the Act operates within a European framework, and as Dr Anna Loutfi explains, is informed by doctrines contained within the ECHR. European jurisprudence which tolerates flexibility and proportionality conflicts with the British legal tradition which has prioritised legal certainty and predictability. If the ECHR is now under great scrutiny and open to reconsideration, so too must be the Equality Act which is grounded in a similar philosophy. It would be intellectually inconsistent for a Conservative government to leave the ECHR yet leave the Equality Act unamended.
Public Sector Equality Duty
The same difficulties that arise under ‘Positive Action’ are also embedded in section 149 of the Equality Act known as the ‘Public Sector Equality Duty’, however they are taken to further extremes. It acknowledges and mandates that ‘compliance with the duties in this section may involve treating some persons more favourably than others’. This is poor law.
While similar assumptions are made regarding characteristic based disadvantages and inequality of opportunity, there is a crucial distinction – where sections 158 and 159 mandate that a person ‘may take’ positive action, section 149 requires that a ‘public authority must’ take appropriate action. Positive duties of this kind sit uneasily within the common law tradition which is largely negative in character, telling people what they must not do instead of compelling action or behaviour.
One of the ways this has manifested has been through unconscious bias testing which is used to ‘tackle prejudice’ as prescribed by the Act, and which originated from the Implicit Association Test launched in 1988 by Harvard University. The idea of unconscious bias is one that should not be accepted by default as it is an unfair indictment of the individual. It operates under an assumption that the individual can be prejudiced without even being aware of this. Following this line of reasoning, the unconscious bias testing providers themselves may be prone to such prejudice, so where then does the control variable, free of unconscious bias, come from?
Ironically, in a 2018 inquiry into bias testing by the UK Equality and Human Rights Commission, it was found that the evidence for the effectiveness of such testing is uncertain and requires further research, and in 2020 the UK Government announced it would be phasing out unconscious bias testing from the Civil Service. While this is a positive move, it highlights the flaws of equality law and leaves unresolved how many similar practices remain embedded in public institutions? Unconscious bias testing does however remain prominent within the private sector thus highlighting how far Equality Act-inspired practices have permeated corporate culture despite their weak evidential basis and potential to distort decision-making. Actually, these tests may be causing more harm as they foster distrust and suspicion in colleagues and institutions, and frequently misclassify people as biased when they are not.
The Equality Act 2010, once a consolidation of anti-discrimination laws, has evolved into something far more ambitious and troubling. The ‘Positive Action’ and ‘Public Sector Equality Duty’ provisions depart from longstanding constitutional principles, and are poorly constructed with undefined aims and open-ended obligations. The Act’s influence has pervaded social culture with identity politics and has embedded itself in private and public institutions. It is time for a thorough reassessment of the Equality Act which restores it to its original purpose: protecting individuals from discrimination without imposing sweeping, quasi-constitutional duties and spreading identity politics rhetoric that distort decision-making and undermine meritocracy. Britain’s institutions deserve a framework that advances fairness, and individuals deserve to be judged as individuals, not reduced to their demographic traits.
'Luna' is a graduate of a London University on the path to qualification as a commercial/corporate solicitor. She is a member of the Society of Conservative Lawyers.
Society of Conservative Lawyers, an association of lawyers who support or are sympathetic to the aims of the Conservative Party. Members hold a range of different views within those parameters and the views expressed in its publications are only those of their authors, and not necessarily held by all members of the Society or by the Conservative Party. The views expressed in this post are those of the authors alone, who take sole responsibility for all errors and omissions.
