Lawbite: Service providers on notice: updated statutory equality code now applies

A new statutory code is now in force across England, Scotland and Wales, replacing the 2011 code and providing an updated framework for Equality Act compliance.

Service providers, public bodies and associations in those jurisdictions should now be working from the Equality and Human Rights Commission (“EHRC”)’s updated Code of Practice on services, public functions and associations (“Code”). The Code came into force on 5 August 2026, replacing the 2011 version.

The update is significant because the new Code reflects more than a decade of legal developments, including the legalisation of same-sex marriage, case law on the definition of disability and the threshold for a philosophical belief to be protected under the Equality Act 2010 (the “EqA 2010”), as well as the Supreme Court’s judgment on the definition of sex in the EqA 2010. It also incorporates previously separate technical guidance on age discrimination. The Code is intended to ensure greater clarity as to the standards that apply under the EqA 2010.

Importantly, the Code does not create new law or impose new legal obligations. It provides legally accurate and up-to-date guidance on existing law, explaining the steps needed to ensure people are not discriminated against, harassed or victimised in relation to the nine protected characteristics set out in the EqA 2010.

Under the EqA 2010, anyone who provides services, goods or facilities to the public - whether for payment or free of charge - is a service provider, and the Code will be relevant to retailers such as shops and supermarkets; financial services providers such as banks; and entertainment and leisure providers such as cinemas, theatres and leisure centres.

Why does it matter?

The Code is a statutory code of practice, rather than informal guidance. Courts and tribunals must take it into account where relevant when determining EqA 2010 claims. The Code has practical significance for organisations when developing policies, making decisions about service provision and responding to discrimination complaints.

The Code was informed by two public consultations in 2024 and 2025, in which the EHRC heard from over 50,000 respondents, with the aim of producing a Code that reflects a wide range of perspectives.

What has changed?

The Code has been updated to reflect changes in legislation and case law developments since the previous version was published.

Most notably, the Code has been updated to align with the For Women Scotland Ltd v Scottish Ministers case ([2025] UKSC 16), in which the Supreme Court held that, for the purposes of the Equality Act 2010, the terms "sex", "woman", and "man" refer to biological sex.

When providing a separate or single-sex service, a service provider must be able to demonstrate that providing the service on a single-sex basis is a proportionate means of achieving a “legitimate aim” when taking into account:

1. the benefits of offering the service as a separate or single-sex service;
2. the needs of those who are accessing it; and
3. the impact on those who are excluded from accessing it.

The Code reiterates that claimants seeking to bring a claim under the EqA 2010 should first ensure compliance with applicable court rules, including the pre-action requirements set out in the Civil Procedure Rules to avoid adverse costs or case management consequences. Whilst not expressly referred to in the Code, this would include ‘Practice Direction – Proceedings Under Enactments Relating To Equality’, which requires claimants to notify the EHRC about issued equality claims.

EHRC powers

The EHRC has wide enforcement powers under the Equality Act 2006, including investigations, unlawful act notices, action plans, injunctions and monitoring public sector equality duty compliance. It can provide legal assistance, bring proceedings in its own name and intervene in claims brought by others.

Organisations should pay particular attention to policies or practices that engage protected characteristics. Where such policies are challenged, organisations may need to demonstrate that they have considered the updated statutory Code and can justify the approach taken.

Take note!

• the Code does not create new law but updates guidance on existing obligations under the EqA 2010, covering the nine protected characteristics - organisations should review their policies against the updated guidance accordingly
• the Code is likely to be influential in disputes because courts and tribunals must take it into account where relevant when determining EqA 2010 claims
• policies on separate or single-sex services should be supported by a clear, evidence-based justification showing that the approach is proportionate
• organisations should be ready to explain and evidence their approach if challenged, particularly given the EHRC’s enforcement powers and the risk of civil claims
• potential claimants must comply with applicable court rules and pre-action requirements before issuing proceedings, or risk adverse costs or case management consequences
• the EHRC’s powers mean equality compliance can carry regulatory as well as litigation risk, including investigations, action plans, injunctions and intervention in claims