The Equality Act 2010: A Critical Look at its Impact on UK Workplaces
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A Comprehensive Summary from "The Equality Act Isn't Working" Report From Your UK Employment Law Experts
At Magara Law, we are dedicated to providing clear, accessible, and insightful information about UK employment law. The Equality Act 2010 stands as a foundational piece of workplace discrimination law in Great Britain, designed to safeguard individuals from unfair treatment across various characteristics. However, a significant and thought-provoking report from Don't Divide Us, titled "The Equality Act Isn't Working" (June 2025), offers a critical analysis of the Act. This report, co-authored by Dr. Alka Sehgal Cuthbert and Dr. Anna Loutfi, particularly scrutinises the race discrimination provisions and their perceived profound impact on workplace culture and HR compliance in the UK.
This comprehensive summary aims to unpack the Report's key findings, explain the nuanced legal concepts involved for non-lawyers, and offer our expert perspective on what this analysis means for both employers striving for fairness in the workplace and employees navigating discrimination law in England and Wales. Throughout this document, we will cite the Don't Divide Us Report (hereafter "the Report") to ensure accuracy and context.
Understanding the Equality Act 2010: A Brief Overview
The Equality Act 2010 was a landmark piece of legislation that consolidated over 100 statutory instruments and numerous separate anti-discrimination laws into a single, comprehensive Act. Proposed by Harriet Harman MP, its core aims were to simplify complex legislation, promote equality, combat discrimination, and introduce transparency in the workplace (Report, p.7).
The Act covers nine "protected characteristics," aiming to prevent unfair treatment based on:
● Age
● Disability
● Gender Reassignment
● Marriage and Civil Partnership
● Pregnancy and Maternity
● Race (including colour, nationality, and ethnic or national origins)
● Religion or Belief
● Sex
● Sexual Orientation
The Act strives to ensure that individuals have a fair chance in life, fostering equality of opportunity in crucial areas such as employment, education, and access to services (Report, p.7).
The Report's Central Thesis: Is the Equality Act Undermining Its Own Goals?
The Don't Divide Us Report directly challenges the effectiveness of the Equality Act 2010, asserting that it is "not fit for its stated purpose" (Report, p.5, Executive Summary). The Report's central criticism hinges on the argument that while the Act outwardly prohibits discrimination, its underlying structure and evolving interpretation, particularly concerning race discrimination, have led to unintended and detrimental consequences for UK workplaces and broader societal cohesion.
Key Findings Highlighted in the Report (Report, p.5, Executive Summary):
Alarmingly Low Success Rates in Employment Tribunals: Between 2017 and 2024, a significant 226,890 Employment Tribunal cases were recorded. Of these, 5,523 cases included race-based discrimination claims. However, a striking statistic reveals that only 281 (or a mere 5%) of these race discrimination claims were actually upheld by employment courts during this period (Report, p.5, p.32). This raises questions about the practical utility and perceived efficacy of bringing such claims.
Perceived "Racialisation" and Segregation: The Report argues that the very system of "codified protected characteristics" at the heart of the EA inadvertently "legitimises principles of racial thinking and segregation." This, it claims, is "diametrically opposed" to the common-sense understanding of equality in a democratic society, where individuals should be treated equally under a universal law, rather than being identified by group identity (Report, p.5).
Detrimental Impact of EDI Policies: The proliferation of Equality, Diversity, and Inclusion (EDI) policies, workgroups, and officers within organisations is suggested to have negatively impacted workplace relationships and potentially "obstructed Britain's economic development" (Report, p.5, p.55). The Report challenges the common assumption that EDI initiatives inherently lead to better business outcomes.
Subjectivity Over Objectivity: The Report criticises the EA's prioritisation of "subjective rather than objective tests," particularly in harassment claims. It asserts that this emphasis contributes to "increasing fractiousness in workplace culture and relationships," making it harder to determine what truly constitutes unlawful conduct (Report, p.5).
In essence, the Report argues that the EA, while designed to prevent discrimination, "tacitly prescribes that the law shall identify us all in terms of ethnic group identity," fostering confusion and division rather than clarity or justice (Report, p.5). This, it concludes, suggests the Act needs immediate review and eventual repeal (Report, p.5, p.61).
A Deeper Dive: Legal Concepts Under the Microscope
The Report meticulously examines specific legal definitions and innovations within the Equality Act, contending that their evolution and practical interpretation have led to unintended and problematic consequences.
1. The Ambiguity of "Race" (Section 9 EA 2010)
The Equality Act broadly defines "race" to encompass "colour," "nationality," and "ethnic or national origins" (Report, p.14, citing Section 9 EA 2010). While seemingly universal, the Report critically argues that the Act's framework, which refers to "persons of a particular racial group" (Report, p.14, citing Section 9(2) EA 2010), inadvertently "reracialises" individuals. This means individuals seeking legal protection under the Act are implicitly encouraged to identify themselves with a specific racial collective, often borrowing terminology from state policy (e.g., choosing "black" over "Jamaican").
The Report provides the striking example of a "BAME Progression" scheme in the Mr P Turner-Robson and others v The Chief Constable of Thames Valley Police case, where "white British" police officers successfully claimed direct racial discrimination after being excluded from a promotion process (Report, p.14). The Report views "white British" as a "political and, arguably, a residual group identity," arguing that the EA, through its policy mechanisms, inadvertently encourages a "racialised bureaucracy" that compels individuals into predefined racial groupings to interact with the state (Report, p.14). This contrasts sharply with the traditional liberal view of equality, where individuals are seen as equal before the law, irrespective of group identity.
2. The Expanding Scope of Discrimination: Direct, Indirect, and Harassment
The EA distinguishes between Direct Discrimination (less favourable treatment because of race) and Indirect Discrimination (a neutral policy or practice (PCP) that disproportionately disadvantages a racial group, unless objectively justified) (Report, p.15). The Report notes that while these concepts were separated in the EA, the Act also introduced the "highly subjective concept of harassment" (Report, p.15).
Harassment (Section 26 EA 2010) is defined as "unwanted conduct related to" a person's race, with the purpose or effect of violating their dignity or creating an "intimidating, hostile, degrading, humiliating or offensive environment" (Report, p.16). The legal test for harassment controversially includes both subjective ("the perception of the complainant") and objective ("whether it is reasonable for the conduct to have that effect") elements (Report, p.16).
The Report critically highlights the "impossible balancing act" demanded of judges in applying this test (Report, p.18). It draws on the 2009 case of Richmond Pharmacology Ltd v Dhaliwal, where a "seemingly throwaway comment" was upheld as racial harassment, deemed "borderline" by the Employment Appeal Tribunal (EAT) (Report, p.18). The Report contends that in the "current cultural climate," influenced by campaigns like Black Lives Matter, the subjective perception of a claimant's "lived experience" is at risk of overriding objective standards. This creates a workplace environment "littered with veritable political eggshells," where almost any comment or action can be retrospectively construed as racially objectionable (Report, p.19).
Furthermore, the Report notes that expanded definitions of discrimination and harassment (influenced by European law, Article 14 ECHR) now allow claims to be brought by individuals who don't directly possess the protected characteristic but are "perceived" to be affected, such as a white worker who witnesses racist language directed at a Black colleague (Report, p.17). The Report labels this phenomenon "coercive allyship" in workplace policies, arguing it facilitates the translation of "political terminology disseminated by policy into legal constructions" that then form the basis of judicial interpretation, blurring the lines of legal liability and encouraging "hypersensitivity" (Report, p.17, p.54).
3. The Public Sector Equality Duty (PSED) and Positive Action: Tools for "Social Engineering"?
The Public Sector Equality Duty (PSED), enshrined in Section 149 of the EA 2010 (and coming into force in 2011), places a general duty on public authorities to "have due regard to the need to" (Report, p.21, citing Section 149(1) EA 2010):
Eliminate discrimination, harassment, and victimisation.
Advance equality of opportunity.
Foster good relations between people who share a protected characteristic and those who do not.
The Report argues that the PSED fundamentally transforms the law into an "interventionist" tool for "social engineering" (Report, p.21). It suggests this represents a radical departure from the traditional British common law, which prioritised the rule of law (where all are equally subjected to the law). Instead, the PSED promotes a model where "equality is the master to which even the law is subject," giving public officials "arbitrary powers" to rationalise interventions without sufficient transparency or accountability, and "permits levels of state encroachment in civic affairs" (Report, p.21). The Report cites Kemi Badenoch's 2023 letter to public authority leaders, warning against misinterpreting the PSED as protecting distinct groups, as evidence of this inherent problem (Report, p.21-22).
Positive Action (Sections 158-159 EA 2010), while not a statutory duty like the PSED, further enables employers to take "proportionate" action to assist persons who share a protected characteristic and face disadvantages or under-representation (Report, p.22).
The Report contends that while Positive Action is legally distinct from unlawful "positive discrimination" (which is illegal), in practice, "the difference is often difficult to see" (Report, p.59). This, it claims, can lead to practices that, in effect, constitute forms of "racial segregation" or "unequal treatment" in the name of diversity, citing ongoing and upcoming cases like Richardson v York & Scarborough Teaching Hospitals NHS Foundation Trust (Report, p.25, fn.43) as examples where these contradictions are being legally tested. The Report argues these provisions foster a belief that "some ethnicities are being treated as more equal than others" (Report, p.59).
Employment Tribunal Trends and UK Workplace Realities
The Report's empirical analysis of over 5,000 Employment Tribunal judgments (2017-2024) paints a critical picture of rising claims, particularly for race discrimination, contrasting sharply with a persistently low success rate for claimants.
Key Statistics from the Report (Report, p.29, 32):
Overall ET Caseload Growth: The total number of Employment Tribunal cases has risen significantly, from 17,005 "receipts" in 2016/17 to 34,386 in 2023/24 (Report, p.29).
Surge in Race Discrimination Claims: Hearings explicitly involving race discrimination have substantially increased, more than doubling from 85 in 2016/17 to 910 in 2023/24 (using a restricted search of the government database) (Report, p.29).
Persistently Low Upholding Rate: Despite the surge in claims, the percentage of race discrimination claims upheld has remained remarkably low, consistently between 4-7% year-on-year (Report, p.32). This suggests that the vast majority of such claims are either dismissed, withdrawn, or struck out.
Combined Claims: Over half of race discrimination cases include additional claims under the Employment Rights Act 1996, such as unfair dismissal or breach of contract (Report, p.30). The Report posits this indicates that many underlying workplace issues are not solely rooted in discrimination.
NHS as a Key Respondent: The NHS is identified as the national organisation featuring most prominently in the Report's database for race discrimination claims. However, only a meagre 4% (19 out of 473 recorded cases) of NHS race discrimination claims were upheld between 2017 and 2024 (Report, p.33-34).
Case Studies and Emerging Themes: Beyond Race (Report, p.37-52):
The Report presents various case studies from the Employment Tribunal records to support its argument that many workplace problems are being mischaracterised or framed as race discrimination, even when race is "often peripheral and sometimes quite irrelevant" to the core issue (Report, p.53). While acknowledging cases where discrimination was upheld (e.g., Mr. R. Sarsembaye v KKMR Group Ltd and Mrs. U.D. Ale v Arjun, Vijay and Preeti Chugani), the Report expresses concern about others where subjective "perceptions" or "lived experience" are given significant weight over objective evidence (e.g., Mr. A Sharma v Jaguar Land Rover Ltd and S. Mackenzie and South Tees Hospital NHS Trust).
The Report identifies several common themes in dismissed race discrimination cases that it believes are often unrelated to genuine racism, but instead stem from more general workplace dynamics:
Poor Leadership & Administration: Issues such as unclear complaint procedures, lack of timely or effective communication, poorly defined management lines, and inexperienced staff conducting serious investigations (Report, p.50).
Complex Employment Relationships: Tensions arising from different contractual arrangements (e.g., between agency and permanent staff) or varying terms of employment (Report, p.50).
Cultural & Interpersonal Dynamics: Difficulties managing a multi-ethnic workforce where differing cultural or linguistic norms may clash, or where "hypersensitivity to what may be called microaggressions" affects workplace standards (Report, p.50, 54-55). The Report cites cases like Nkemnacho v L & Q Living Ltd as examples where claims based on "smelly food" comments, despite being dismissed, highlight the increasing focus on subjective interpretation (Report, p.55).
The Report also critiques the popular assertion that diversity is inherently "good for business," arguing that despite the widespread adoption of EDI policies in the corporate sector, UK productivity remains slow (Report, p.55, citing a Productivity Institute report). It suggests that the "divisiveness" inherent in "identity politics" and "multiculturalism," which it claims is enshrined in the EA, leads to social fragmentation rather than cohesion in the workplace (Report, p.56-57). The Report concludes that the EA's broad reach and reliance on subjective tests mean it "cannot serve as an effective tool for social improvement, and it cannot be a sound basis for law in a democracy" (Report, p.60).
Key Recommendations from the Don't Divide Us Report
Based on its detailed analysis, the Don't Divide Us Report unequivocally concludes that the Equality Act 2010 is "not fit for purpose" and proposes significant reforms (Report, p.61):
In the Short Term:
Immediate Repeal of PSED and Positive Action Provisions: The Report advocates for the swift repeal of the Public Sector Equality Duty and Positive Action provisions, arguing they are "actively discriminatory, socially divisive and contradict the singular purpose of the 2010 Act" (Report, p.61).
Elimination of Subjective Elements in Legal Tests: It recommends removing elements from equality law tests that require judges to consider the claimant's subjective perception, particularly in harassment claims, before determining if conduct is unlawful (Report, p.61).
Comprehensive Legal Review of the EA: The Report calls for a thorough legal review of the entire Equality Act to distinguish between aspects compatible with a classical liberal paradigm (emphasising universal equality before the law) and those incompatible with traditional principles (Report, p.61).
In the Long Term:
Eventual Repeal of Codified Protected Characteristics: The most radical recommendation is the "eventual repeal of the entire system of codified protected characteristics" enshrined in the 2010 Act, advocating a return to the common law presumption of universal equality, irrespective of race or other social determinants (Report, p.61).
Our Perspective as UK Employment Lawyers: Navigating the Act in Practice
As employment lawyers in England and Wales, we engage with the Equality Act 2010 daily. Our practice involves advising both employers on HR compliance and employee rights, and employees on their entitlements in cases of unfair treatment and discrimination claims.
The Don't Divide Us Report offers a profound and critical perspective that certainly highlights complex issues and challenges within UK discrimination law. While the Report's interpretations represent a particular viewpoint, it undeniably raises important questions that warrant careful consideration regarding how employment law operates in practice and its societal impact.
From our extensive experience, the Equality Act 2010 remains the fundamental legal framework for addressing workplace discrimination. Its overarching intention—to promote fair treatment and equality—is a principle broadly supported across society. However, the Report's empirical findings on the consistently low success rate of race discrimination claims in Employment Tribunals are indeed noteworthy and demand attention. This outcome can be attributed to various factors, including the high legal bar for proving discrimination, the inherent complexities in gathering and presenting evidence, the Tribunal's rigorous objective assessment, and, as the Report suggests, potentially the bringing of claims where the underlying issue may not be discrimination as legally defined.
Practical Considerations for Employers in the Current Landscape:
Robust Policies & Training Remain Crucial: Irrespective of the ongoing academic and political debate, maintaining a strong emphasis on comprehensive anti-discrimination policies, regular and legally sound EDI training (ensuring it is designed to genuinely foster inclusion and not inadvertently promote divisive concepts), and clear, consistently applied grievance procedures remains absolutely vital for effective HR compliance and mitigating legal risk.
Objective and Transparent Decision-Making: Employers must continue to ensure all employment decisions (from recruitment and promotion to disciplinary action and dismissal) are based on objective, non-discriminatory, and clearly documented criteria.
Upholding Reasonable Adjustments: For employees with disabilities, the duty to make reasonable adjustments is a paramount and legally binding obligation under the Act.
Managing Harassment Effectively: While the subjective element of harassment is part of the legal test, employers should prioritise fostering a respectful workplace culture where all forms of unwanted conduct are addressed promptly, consistently, and effectively, avoiding unnecessary formality where appropriate.
Navigating PSED & Positive Action with Caution: Public sector bodies, and any organisations considering Positive Action initiatives, must exercise extreme caution. These measures must be strictly compliant with the Act's specific provisions (e.g., ensuring they are proportionate, address genuine disadvantage, and do not amount to quotas or unlawful discrimination). Seeking expert legal advice is essential here to navigate potential pitfalls and ensure compliance.
Practical Considerations for Employees Navigating Discrimination:
Early Legal Advice is Paramount: If you believe you have experienced workplace discrimination, harassment, or unfair treatment, seeking legal advice at the earliest opportunity is critical. Our Employment Solicitors here at Magara Law can assess the strength of your claim, guide you through internal grievance procedures, and advise on all available legal options, including potential Employment Tribunal claims.
Evidence is King: Successful discrimination claims rely heavily on compelling evidence. Meticulously documenting incidents, gathering relevant communications, and identifying potential witnesses are vital steps in building a strong case.
Understanding Legal Thresholds: While your personal experience and perception are important, the Employment Tribunal will apply objective legal tests. An employment lawyer can help you understand these thresholds, frame your experiences within the legal definitions, and build a case that robustly meets the required evidential burden.
In conclusion, the Don't Divide Us Report provides a powerful and critical lens through which to examine the Equality Act 2010 and its real-world application, particularly in the complex area of race discrimination. While the fundamental debate over the Act's broader effectiveness and philosophical underpinnings continues, our unwavering role as employment law experts is to assist individuals and organisations in navigating its complexities effectively, promoting fairness and justice within UK workplaces.
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For more information or to contact our employment law team at Magara Law, call 01869 325 883 or email roy@magaralaw.co.uk.
