New EHRC code takes effect: legal implications for organisations

The Equality and Human Rights Commission's updated Code of Practice for Services, Public Functions and Associations is now in force. It explains how the Equality Act 2010 applies to service providers, those exercising public functions and associations. While the code does not create new law, courts and tribunals must take relevant parts of it into account when considering matters under the Equality Act 2010. 

For organisations providing services to the public, this is not guidance to leave on the shelf. The code reflects the Supreme Court's ruling that, for the purposes of the Equality Act, the term “sex” refers to biological sex. That has immediate practical implications for single-sex and separate-sex facilities, including toilets and changing rooms, and other spaces where privacy, dignity and safety are key considerations.

The code confirms that separate and single-sex services may be lawful in appropriate circumstances, but only where the statutory tests are met. In practice, organisations need to demonstrate that they have considered the purpose of the service, the rights and needs of all users, the justification for any restriction, whether the approach is proportionate and whether alternative provision is appropriate. A blanket or poorly evidenced approach is unlikely to be enough.

The code has faced its fair share of opposition, including an unsuccessful attempt to prevent it coming into force. The Good Law Project has also announced that, now the code has been brought into effect, it is supporting a further legal challenge, with claimants having sent a pre-action letter to the Government and the EHRC. Unless and until the legal position changes, however, the code remains in force. Many service providers have already been preparing for its implementation, but organisations that have not yet reviewed their policies, facilities, staff guidance and complaint-handling procedures should do so now rather than waiting for a dispute to arise.

The position for employers requires separate and careful consideration, with many employers asking what the code means for them. The code does not apply where an organisation is acting solely in its capacity as an employer. Even so, employers still need to think carefully about workplace toilets, changing facilities and other shared spaces. Legal risk can arise under employment law, discrimination law, health and safety obligations, and through internal grievance or disciplinary processes. Many employers will also be service providers in some aspects of their operations, adding a further layer of complexity.

In our experience, one of the greatest risks often lies in how any concerns raised are handled. Recent tribunal decisions involving sex, gender reassignment and protected belief discrimination demonstrate the importance of employers responding carefully to concerns raised by employees. These issues require a careful and balanced response, taking into account the rights and concerns of all involved. Early legal advice is essential in navigating this complex area, and particularly when it comes to managing complaints and balancing competing concerns.

With significant experience in this field, including acting for clients in leading cases that have helped shape the development of the law, we are well placed to help organisations navigate this evolving area of law. We can support organisations by reviewing policies and facilities, advising on legal risk, assisting with grievance and complaint processes, and preparing clear, practical guidance for managers and staff. If you would like to discuss how the code may affect your organisation, please contact the employment team or your usual Burness Paull contact. 

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