Carers and the Equality Act 2010: Protected characteristics and identity

Busby, N. (2012) Carers and the Equality Act 2010: Protected characteristics and identity. Contemporary Issues in law, 11(2), CIL 71-91.

Abstract

Following wide consultation, the previous UK Government decided not to specifically incorporate carer status as one of the grounds for protection against discrimination under the Equality Act 2010. This decision was justified on two distinct grounds. First on the ideological assertion that the protected characteristics (PC) specified under the Act amount to core aspects of an individual's status or identity and are, thus, intrinsic to 'what a person is' rather than 'what a person does'. The second ground was that, coupled with pre-existing employment rights, the Act was deemed to provide an extended or enhanced de facto protection for carers through, for example, the addition of a statutory right to claim associative discrimination, negating the need for identification of carers as a specific and distinct category. This article will examine both of these justifications for excluding carer status as a PC with specific reference to the employment-related rights of carers6 and in the context of the wider political and socio-economic environment within which the Act operates. The rationale underpinning the PCs provided for in the Act is that its provisions offer protection against discrimination on the grounds of those aspects of individual identity or status which, irrespective of motivation or intention, are the cause of such treatment. On this basis, I argue that an individual's caring status can and should be classified in exactly the same way as, for example, her religious belief or age so that there is no justification for its exclusion from the protection provided by the Act. This is because the issue of identity in this context requires a deeper consideration of the distinction between 'being' (i.e. what a person is) and 'doing' (i.e. what a person does) than was originally applied. Furthermore, the assumption that the provisions of the Act would indirectly provide enhanced protection for those with caring responsibilities has been seriously called into question due to the subsequent shelving of some of the Act's key provisions on both ideological and austerity grounds. Rather than amounting to unnecessary bureaucracy and red-tape, I argue that those provisions which have subsequently been dropped from the legislative programme, namely the socio-economic duty and direct dual discrimination, are strongly linked to carer's identity indicating that any improvements to employment protection that would have occurred have been seriously impeded. I conclude by endorsing the need to incorporate carer status as a protected characteristic as the only viable means by which real improvements to the quality of life can be made and maintained for those who combine paid employment with unpaid care.

• Item Type: Articles
• Status: Published
• Refereed: Yes
• Glasgow Author(s) Enlighten ID: Busby, Professor Nicole
• Authors: Busby, N.
• College/School: College of Social Sciences > School of Law
• Journal Name: Contemporary Issues in law
• Publisher: Lawtext Publishing
• ISSN: 1357-0374