This is not legal advice. Our aim at FAIRER Consulting is to ensure inclusive practice and support employers to facilitate a consciously inclusive workplace with dignity, respect and cohesion at its heart. All organisations are encouraged to seek their own independent legal advice before implementing any changes to policy or practice as a result of existing or upcoming legislative changes.
A reminder that the law exists to offer protection and provide a framework for fairness – not to create division or hierarchy. Legislation like the Equality Act 2010 is designed to maintain dignity, provide protections, and ensure that individuals are not disadvantaged because of who they are or where they come from.
In today’s world, where conversations around diversity, equity and inclusion can feel increasingly polarised, it’s important for organisations to remain grounded in what the law actually says, and to act on what is required in practice. Legal frameworks help to define expected behaviour, strengthen protections and drive accountability, making fairness a shared standard across the board.
With this in mind, it’s crucial that organisations understand the foundations of UK equality law, starting with the Equality Act 2010 and the protections it provides.
The Equality Act 2010 has provided protections against harassment, discrimination, or victimisation in employment across England, Scotland, and Wales since 1st October 2010.
It’s important for organisations to remember that, as of 2026, the provisions and protections within the Equality Act 2010 remain in place (and enforceable), irrespective of any public discourse around DE&I or the protections and rights of any one group (protected characteristics) being more important than any other.
Although some changes have been made since 2010, such as the removal of third-party harassment provisions in October 2013 (as they were considered unnecessary, unworkable, and ineffective in practice), the principles of protection based on the nine protected characteristics remain the same. Case law, particularly in response to Employment Tribunal rulings since 2010, means that the sometimes-varying interpretations of the protections offered have been tested and clarified, but the Act still exists both in principle and practice in 2026.
When someone is treated less favourably than another person as a result of an organisation’s Provision, Criterion or Practice (PCP) because of a protected characteristic (including by perception or association), it could be considered discrimination, which remains clearly defined within the provisions and protections of the Act. For clarity:
Direct discrimination – outlines the need for neutral acts and does not allow discrimination based on one’s own protected characteristic. I.e. one cannot overrule another (for example, holding religious beliefs does not allow someone to discriminate on the grounds of other religious beliefs or someone’s sexual orientation).
Indirect discrimination – can occur when an organisation has a condition, rule, policy or practice that applies to everyone equally but has a disproportionate effect that disadvantages people who share a protected characteristic.
Under the Equality Act 2010, a behaviour or decision can be discriminatory even if the person did not mean to discriminate. To comply with the Equality Act 2010, always ask yourself, “what is the effect of this action or policy on different people?” Discrimination can occur even without intent and under the provisions and protections of the Equality Act 2010; it is the effect of behaviour or a decision that matters, not the intention behind it.
A person or organisation may have good intentions, but if the action results in a disadvantage or adverse impact linked to a protected characteristic, it may still be unlawful. An organisation must always focus on the impact on the individual, not the motive or intention of the decision-maker.
Examples:
A policy applied to everyone equally might still disproportionately disadvantage a protected group, which could lead to indirect discrimination. Carrying out Equality Impact Assessments (and ensuring that you consult a broad range of diverse groups in the process) is a great way of ensuring that all potential adverse impacts or consequences are considered and either justified, mitigated or removed. Business or Employee Resource Groups (B/ERGs) are perfectly placed to support the organisation in its considerations and decision-making.
A comment meant as a joke might still create a hostile or offensive environment. The Equality Act ensures that, irrespective of the intended humour, those who might be offended have the protections in place to claim potential harassment.
Remember, defence of an adverse impact is based on justification, not simply saying “I didn’t mean it”, so organisations must consider outcomes, not just intentions, when designing policies or making decisions.
Data plays a vital part in providing evidence of need in several areas, as it provides leaders with a business ‘heat map’ of DE&I hot spots and cold spots. It also assists:
When tackling discrimination and harassment. Data will provide organisations with hot spots of systemic bias or behaviours and will avoid a blanket labelling based on difference or assumptions, allowing for more targeted responses.
When writing a DE&I strategy and action plan. This smart data approach assists with the avoidance of emotional tagging when businesses develop any DE&I strategy or action plan. DE&I smart data assists with avoiding things like affinity bias, assumptions, political influence, group think, or peer or competitor pressure.
When designing positive action activities. Data helps to identify actual disadvantage or under representation (rather than assumed or perceived) and helps to identify gaps (e.g., low representation, barriers to progression, unequal outcomes), ultimately providing evidence to justify the use of Positive Action provisions. Although the Equality Act only requires a “reasonably held belief” that action is needed, data will supply the proof and will help organisations target action effectively, ensuring that interventions are proportionate, focused, and actually address the issue. Data also allows an organisation to monitor progress over time and track whether actions are working, and adjust strategy accordingly.
When tackling culture-change programmes. Data, particularly involving the collection of qualitative (narrative) as well as quantitative data, ensures that any sentiment analysis collected allows the measurement of changes over time, tracking movement and maturity (measuring “inclusion” by default).
Information should always be aggregated across different diversity groups, and other factors such as location and role to allow for a more targeted and nuanced approach.
The Equality Act 2010 protects everyone, but no one protected characteristic can be used to justify discrimination against another.
Where organisations find themselves being asked to balance the needs of one group of individuals over another, it’s important that they:
Consult the law: Applying the Equality Act consistently across all protected characteristics is vital, to avoid any unintended or unexpected adverse impact. Get legal advice wherever necessary.
Use evidence and context: Avoid assumptions and take steps to understand the actual issue, not the perceived conflict in needs or values.
Apply proportionality: Aim for solutions that minimise disadvantage to any group rather than feel the need to remove protections or rights for some to necessitate providing solutions for others.
Avoid “zero sum” thinking: Ultimately, inclusion for one group should not come at the expense of another. Inclusion never excludes.
Where rights appear to “compete”, the law requires a balanced, evidence based, and proportionate approach, so organisations must consider all protected characteristics when making decisions, not just one.
A measure designed to support one group must not create unlawful discrimination for another group. The goal is fairness and equity, not “hierarchies of rights”.
Examples:
Religious belief vs. sexual orientation. Everyone’s rights must be respected; neither identity overrides the other.
Disability adjustments vs. health & safety needs. Adjustments are required unless they become unreasonable or pose significant risks.
Gender reassignment inclusion vs. privacy considerations of others. Decision-making must be proportionate, evidence-based, and sensitive to all involved.
Throughout 2026 and into 2027, there will be a number of changes to employment legislation that employers should be mindful of as a result of The Employment Rights Act (ERA), which received Royal Assent on 18 December 2025. The ERA introduces wide-ranging reforms, including strengthening employer duties, increasing transparency, expanding protections for vulnerable groups, and supporting safer reporting methods and processes.
Several of these changes directly affect workplace DE&I – particularly around harassment prevention, equality transparency, and fairer workplace practices across UK workplaces.
Below are four things to look out for over the next 18 months:
Stronger harassment protections. With a commitment to ensuring safer, more inclusive workplaces and stronger accountability for preventing discrimination, harassment protections will change in response to the ERA, including the return of third-party harassment liability – something that was initially removed from the Equality Act in 2013.
From October 2026, employers must take all reasonable steps to prevent workplace sexual harassment, further strengthening the amendments to legislation that were implemented in October 2024 as part of the ‘The Worker Protection (Amendment to Equality Act 2010) Act’.
Mandatory equality action plans. To influence and encourage more formal, structured and intentional DE&I strategies, large employers will be mandated to publish equality action plans, increasing transparency and driving measurable DE&I progress.
Enhanced whistleblowing protections. From 6 April 2026, sexual harassment disclosures will become protected under whistleblowing law. This will ensure that there are safer reporting environments for marginalised employees.
Broader equity benefits for vulnerable workers. ERA reforms particularly benefit low paid sectors, and those with higher proportions of women, ethnic minorities, and disabled workers, by improving job quality and protections, and supporting greater fairness, reducing structural inequalities.
At FAIRER Consulting, we help organisations move beyond compliance-led approaches, helping to translate legal requirements into practical, long-term, and meaningful action that makes a difference.
Whether you’re looking to build a clear, evidence-based roadmap through our Create a DEI Strategy programme, gain deeper insight into your current state with a DEI audit, or equip your people with the skills to apply inclusion in everyday decisions through our Conscious Inclusion training, we’re here to support you. Simply get in touch for a complimentary call with one of our consultants.