With a lot of misinformation about the legal significance of EHRCs current revision of the Statutory Code of Practice on Services, Public Functions and Associations, an explainer on a crucial but often misunderstood aspect of equality law: Statutory Codes of Practice and Government Guidance.
For business leaders and HR professionals, understanding these codes (and their legal relationship with the Equality Act) is one of the tools needed for Equality Act compliance and to building a fairer workplace.
What Are Statutory Codes of Practice?
These codes, issued under the Equality Act 2010, are practical guides that explain how to comply with equality law. They provide detailed examples on topics like reasonable adjustments for disabled employees, dealing with harassment, and how to rely on an exception. While they are not the law themselves, they’re highly influential. If your business faces an equality claim, a court or tribunal must consider whether you’ve followed the relevant Code of Practice, though it is not binding.
Note there are several, so first of all check you are reading the correct one.
Besides the:
- Services, Public Functions and Associations Statutory Code of Practice there is
- Employment Statutory Code of Practice
- Equal Pay Statutory Code of Practice , all issued by the EHRC.
Equality Act Guidance on Matters to be Taken into Account in Determining Questions relating to the Definition of Disability, issued by the Office for Disability HM Government and guidance such as that on
Positive Action In The Workplace
Equality Act statutory codes of practice are authoritative and technical guides to the law, which courts and tribunals must take into account when deciding on relevant cases. In contrast, Government guidance is non-statutory, designed to be a more accessible and practical first port of call for individuals and organisations to understand their responsibilities, but it does not carry the same legal weight as a code of practice.
But that is not the end of the matter… what if Statutory Codes of Practice are overtaken by a new judgment in the higher courts?
Why Codes Can Get Out of Date
Laws and legal interpretations are constantly evolving. New court cases, particularly from higher courts, set binding precedents that can change how we understand a piece of legislation. Statutory Codes of Practice, however, are not updated every time a new case is decided. This means the guidance in a code can sometimes lag behind the current legal position, becoming outdated over time.
Also sometimes mistakes are made. In 2022 the EHRC had to issue revised advice on “Separate and single-sex service providers: a guide on the Equality Act sex and gender reassignment provisions” because the wording of the 2011 Code of Practice on Services etc was legally incorrect. This was part of the reason that the EHRC decided to update the Code of Practice, which they are still undertaking.
The Supremacy of Statute and Precedent
This is the most critical point for businesses to grasp: the law and binding court decisions always take precedence over a Code of Practice. If a code’s guidance conflicts with a statute or a binding precedent, a court will follow the statute and the precedent. The code is a guide, not the final word. A tribunal won’t excuse non-compliance with the law just because you were following an outdated or legally inaccurate code.
Therefore, while Codes of Practice are an invaluable starting point, it’s essential for businesses to stay updated on case law and seek legal advice to ensure their policies and procedures are compliant with the most current legal standards.