Good Law Project v Equality and Human Rights Commission (case AC–LON-001953) Judgment published: 13/02/12:00
Summary The Court’s decision in Good Law Project v EHRC reshapes how organisations should think about equality duties when they design policies intended to promote inclusion. Rather than declaring inclusive measures automatically unlawful or automatically protected, the court required a nuanced, fact-driven inquiry into intent, effect and proportionality. That approach gives organisations room to pursue inclusive aims — but it also invites closer scrutiny and more litigation where policies sit on the borderline.
What the court decided and why it matters – Role of the EHRC: The judgment limits the EHRC’s role in litigation started by campaign groups, clarifying how and when the regulator can intervene in such cases. – No blanket rule: The court rejected any simplistic rule that inclusive policies are inherently discriminatory. Instead, whether a measure is lawful depends on the specific facts, the policy’s purpose, its effects on protected groups, and whether the measure is proportionate. – Practical consequence: Organisations keep discretion to design access and inclusion policies, but they must be able to explain and justify decisions that differentially affect people with protected characteristics.
Why this will change behaviour Because the decision places emphasis on proportionality, evidence and documented reasoning, employers and service providers should expect: – more litigation about borderline cases; – regulators and courts to demand clearer evidence of justification; and – an increased premium on thorough decision records and impact assessments.
Implications for service providers and employers Service providers – Focus on context: Courts will look at the service context, the policy’s aim, and reasonable alternatives. Providers should be ready to explain why a specific approach was chosen over less intrusive options. – Document adjustments: Keep records of any reasonable adjustments made, the rationale for them, and any data showing their effect. – Evidence matters: Measures supported by evidence and proportionate to the stated aim are far more defensible.
Employers – No automatic safe harbour: Workplace inclusion measures are not guaranteed to be lawful simply because they are framed as inclusive. Role-specific duties, contractual terms and operational realities will all shape legal assessment. – Tailored risk assessments: Employers should run bespoke risk assessments for different roles and settings, document consultations with staff, and review contractual or policy language where necessary.
Practical checklist to reduce legal risk 1. Written impact assessment: Produce a focused assessment setting out the aim, the evidence that the measure advances that aim, and why it is proportionate and the least intrusive option. 2. Consider and record alternatives: Test less intrusive approaches and keep a clear record of why they were rejected, with supporting evidence. 3. Consult affected people: Document consultations with those likely to be impacted; contemporaneous notes and summaries of lived experience are especially persuasive. 4. Update contracts and guidance: Align operational documents, staff guidance and training with the chosen policy and retain past versions for audit. 5. Monitor outcomes: Collect data on implementation and effects, review assessments when circumstances change, and maintain an audit trail. 6. Seek specialist advice where unsure: Document legal advice and engagement with regulators if questions remain.
Unresolved questions and areas to watch The ruling clarified important principles but left several practical questions open: – Evidence thresholds: How will courts weigh contested evidence about impact? The judgment did not set a fixed standard for the detail required. – Balancing conflicting interests: Where two protected groups clash, proportionality assessments will remain highly fact-sensitive and dependent on context. – Records retention: The decision gave little guidance on how long supporting records should be kept or how detailed they must be.
Because of these gaps, expect further litigation and regulatory guidance to refine the tests. Organisations should watch appeals, follow-up cases, and official guidance closely.
What regulators and organisations should watch next – EHRC commentary: Any guidance or enforcement statements from the EHRC will be telling about enforcement priorities and interpretation of the judgment. – Sector-specific guidance: Trade bodies and sector regulators may issue practical directions that affect compliance expectations. – Appellate decisions: Higher court rulings could narrow or broaden the standards set out in AC–LON-001953, so follow subsequent case law. – Internal policy changes: Treat policy updates as living documents—train staff, document decisions, and keep a clear evidence trail as standards evolve. Now is the time to tidy up records, sharpen impact assessments, consult meaningfully, and be ready to defend choices in a courtroom or before a regulator.