Long standing readers of this blog will recall that over the last year we have updated on the consultation that the Equality & Human Rights Commission was undertaking following the publication of a draft statutory Code of Practice for Providers of HE and FE under the Equality Act 2010. After some delay and changes in government policy, "Technical Guidance on Further and Higher Education" was published at the end of last month.

It will be recalled that the government had refused to provide Parliamentary time for consideration of any more Codes of Practice so the EHRC decided to publish the codes they had drafted and consulted on as "technical guidance". As a matter of law, the statutory Codes of Practice (on Equal Pay, Employment and Services, Public Functions & Associations) must be taken into consideration by courts and tribunals where relevant to a case, but the EHRC "technical guidance" does not. However, in practice (the EHRC asserts) the guidance still provides "a formal, authoritative and comprehensive legal interpretation of the [Public Sector Equality Duties] and education sections of the [Equality] Act" and "may be used as evidence in legal proceedings."

The Technical Guidance on Further and Higher Education is therefore recommended reading. It is long (220+ pages) but is broken down into sections and written in a manner that encourages its use as a reference text. It provides a balance of setting out the law, explaining it and providing examples to illustrate the points being made.

EHRC's report on the consultation surrounding the publication is itself interesting.

  • Only 25 responses to the consultation were received over the 12 week period.
  • Of the HE and FE institutions that responded, the vast majority are in Scotland.
  • Requests were received for the guidance to contain specific reference to case law. However, EHRC decided not to cite "seminal judgments" in the document, although several of the examples are based on the facts of decided cases.
  • Responding to feedback, the final version contains more examples and uses the same terminology throughout the document.
  • There was criticism that some of the examples in the draft contained unrealistic scenarios and themselves involved stereotypical representations of certain protected characteristics