Discrimination Discrimination in Employment Law

Introduction

Discrimination in employment is a pervasive issue addressed comprehensively by the Equality Act 2010 (EqA 2010), which is the primary legislation governing discrimination, harassment, and victimisation in employment across England, Scotland, and Wales. This essay provides an overview of the EqA 2010, detailing the specific protected characteristics, various forms of unlawful conduct, the scope of protection and liability, lawful exceptions, and the procedural aspects of bringing and defending discrimination claims.

Legal Framework: Equality Act 2010

Protected Characteristics

The EqA 2010 prohibits discrimination in respect of nine protected characteristics:

• Age (section 5).

• Disability (section 6).

• Gender reassignment (section 7).

• Marriage and civil partnership (section 8).

• Pregnancy and maternity (section 18).

• Race (section 9).

• Religion or belief (section 10).

• Sex (section 11).

• Sexual orientation (section 12).

Types of Discrimination and Unlawful Conduct

The EqA 2010 outlines various forms of unlawful conduct related to these characteristics:

Direct Discrimination

Direct discrimination occurs when a person (A) treats another person (B) less favourably "because of a protected characteristic" (section 13(1)). Key aspects include:

Claimants typically compare their treatment to a real or hypothetical comparator whose circumstances are not materially different, except in pregnancy or maternity discrimination, where formal comparators are not required due to European case law.

The less favourable treatment must be because of a protected characteristic, requiring tribunals to examine the employer's conscious or subconscious reasons. The protected characteristic need not be the sole or principal reason.

Associative discrimination is covered, meaning less favourable treatment because of an individual's association with someone who has a protected characteristic (e.g., a non-disabled employee treated less favourably because they have a disabled child). The exception is marriage and civil partnership discrimination, which must be "because B is married or a civil partner".

Discrimination by perception is also protected, where an employee is wrongly perceived to have a protected characteristic (e.g., an employee of Asian origin treated less favourably due to a mistaken belief they are Muslim).

It is not direct discrimination to treat a disabled person more favourably, or to afford women special treatment in connection with pregnancy, childbirth, or maternity.

Unlike other forms of discrimination, direct discrimination generally cannot be objectively justified, with the sole exception of age discrimination. However, specific exceptions, such as occupational requirements or positive action, might render it lawful.

Indirect Discrimination

Indirect discrimination involves acts, decisions, or policies (known as a provision, criterion or practice, or PCP) which are not intended to treat anyone less favourably but, in practice, disadvantage a group of people sharing a particular protected characteristic. It is unlawful unless it can be objectively justified as a proportionate means of achieving a legitimate aim.

1. A PCP can be wide-ranging, not necessarily a formal policy.

2. It is "group-based," meaning the PCP must put persons who share a protected characteristic at a particular disadvantage compared to others.

3. The PCP must also put the claimant at a disadvantage personally. However, following the Equality Act 2010 (Amendment) Regulations 2023, a new section 19A enables claimants who do not share the protected characteristic of the disadvantaged group to bring claims if they are disadvantaged in substantively the same way. This reflects the principle established in CHEZ Razpredelenie Bulgaria.

Indirect discrimination applies to all protected characteristics except pregnancy and maternity, though indirect sex discrimination may apply in such situations.

Harassment

The EqA 2010 contains three definitions of harassment:

1. General harassment "related to" a protected characteristic

   This applies to all characteristics (except marriage and civil partnership, and pregnancy or maternity). It involves unwanted conduct related to a protected characteristic that has the purpose or effect of violating B's dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for B. A tribunal must consider B's perception, other circumstances, and whether it was reasonable for the conduct to have that effect, avoiding liability for "hypersensitive" individuals.

2. Conduct of a sexual nature

   This refers to unwanted conduct of a sexual nature that has the same purpose or effect as general harassment. Employers have a duty to take reasonable steps to prevent sexual harassment, and tribunals can uplift compensation by up to 25% for a breach of this duty.

3. Less favourable treatment because of rejection of or submission to harassment

   This occurs if someone is treated less favourably because they rejected or submitted to sexual harassment or harassment related to sex or gender reassignment. Harassment can be a one-off incident and may involve associative harassment or harassment based on perception.

Victimisation

Victimisation protects individuals who engage in "protected acts" from being subjected to a detriment. Protected acts include bringing proceedings under the EqA 2010, giving evidence or information in connection with proceedings, doing anything for the purposes of the Act, or alleging a contravention of the Act. It also extends to seeking or making "relevant pay disclosures" to address gender pay gaps. False evidence or allegations made in bad faith are not protected acts.

1. Victimisation occurs when A subjects B to a detriment because B has done, or may do, a protected act.

2. Unlike direct discrimination, a claimant does not need to show "less favourable treatment" with reference to a comparator, though such a comparison is often involved.

3. Victimisation need not be consciously motivated.

Instructing, Causing, Inducing, or Knowingly Helping Unlawful Acts

The EqA 2010 makes it unlawful to instruct, cause, induce, or knowingly help someone to discriminate, harass, or victimise another person.

1. Proceedings can be brought against the instructing/causing/inducing party (A) by the person instructed (B), the eventual victim (C), or the EHRC.

2. An employee will not be liable for knowingly helping if they reasonably relied on a statement from their employer that the act did not contravene the EqA 2010. An employer who knowingly or recklessly makes such a false statement commits an offence.

Combined or Dual Discrimination

Section 14 of the EqA 2010, designed to address direct discrimination based on a combination of two protected characteristics, has not yet been brought into force. It would apply to age, disability, gender reassignment, race, religion or belief, sex, and sexual orientation, but not pregnancy and maternity or marriage and civil partnership.

1. Currently, tribunals consider claims involving multiple characteristics as separate heads of claim. Case law suggests that existing direct discrimination law is often adequate to address such issues.

2. The government has issued a call for evidence, seeking views on bringing section 14 into force and potentially expanding its scope to include indirect discrimination, harassment, victimisation, and the currently excluded protected characteristics.

Scope of Protection and Liability

Who is Protected?

Part 5 of the EqA 2010 protects a wide range of individuals in the context of work:

1. Employees and job applicants (including prospective applicants).

2. Contract workers, including agency workers.

3. Police officers and applicants.

4. Partners and those seeking partnership in a firm.

5. LLP members and those seeking membership.

6. Barristers and Advocates.

7. Office holders and applicants for an office.

8. Those seeking or holding professional or trade qualifications.

9. Those seeking or undertaking vocational training and users of employment agencies.

10. Members of trade organisations.

11. Local authority members. Notably, the EqA 2010 also extends protection to corporate bodies if they suffer discrimination (e.g., a limited company member of an LLP claiming age discrimination due to its principal shareholder's age).

Scope of "Employment"

The EqA 2010 defines "employment" broadly (section 83(2)), encompassing:

1. Employees (under a contract of employment).

2. Workers (under a contract of apprenticeship or a contract personally to do work).

3. Certain self-employed individuals, provided their contract obliges them to perform the work personally without subcontracting.

Territorial Scope of the EqA 2010

The EqA 2010 is silent on its territorial scope. Tribunals determine applicability based on the connection between the employment relationship and Great Britain, often adopting tests similar to those used for unfair dismissal under the Employment Rights Act 1996.

Unlawful Discrimination against Job Applicants and Employees

The EqA 2010 prohibits discrimination, victimisation, and harassment against:

1. Job applicants and prospective job applicants

   This includes arrangements for deciding to whom to offer employment, the terms of offers, or not offering employment. Harassment of applicants is also prohibited. Even someone who hasn't applied can bring a claim if recruitment arrangements (e.g., an advert) are discriminatory.

2. Current employees

   Prohibitions cover terms of employment, access to opportunities (promotion, transfer, training, other benefits), dismissal, or being subjected to any other detriment. A "detriment" is established if a reasonable worker would feel disadvantaged.

3. Former employees

   Section 108 ensures protection against discrimination or harassment that arises out of and is closely connected to a past employment relationship, and would have been unlawful if it occurred during the relationship. Protection against post-employment victimisation is included. The duty to make reasonable adjustments for disabled persons can also continue after employment ends.

4. Discriminatory statements

   As of 1 January 2024, section 60A prohibits making a discriminatory statement to the public in connection with a decision to offer employment or work, where such a statement would amount to direct discrimination.

Who is Liable?

Liability under the EqA 2010 can extend beyond the direct perpetrator:

1. Employers' Primary Liability

   Employers are primarily liable for their own discriminatory or harassing actions.

2. Employers' Vicarious Liability

   Employers are liable for discriminatory acts committed by their employees in the course of employment, even if without the employer's knowledge or approval (section 109(1), (3)). This liability can be avoided if the employer can prove they took "all reasonable steps" to prevent the employee from committing the discriminatory act.

3. Employers' Liability for Acts of Agents

   Similar to employees, employers can be liable for discriminatory acts carried out by their agents (e.g., contractors or employment agencies) with the employer's authority, irrespective of knowledge or approval (section 109(1), (3)).

4. Third-Party Harassment

   Provisions making employers liable for third-party harassment were repealed in 2013. Currently, an employer is only liable if their failure to protect an employee from third-party harassment was because of a protected characteristic. However, the Employment Rights Bill proposes to reintroduce employer liability for third-party harassment.

5. Personal Liability of Employees and Agents

   Employees and agents can be personally liable for their discriminatory actions (section 110). This means they can still face proceedings even if their employer successfully argues they took "all reasonable steps" to prevent the act. An exception applies if the employee reasonably relied on a false statement from the employer that the act was not a contravention of the EqA 2010.

When Discrimination May Be Lawful

While discrimination is generally prohibited, certain exceptions allow for otherwise unlawful treatment:

Objective Justification

This defence allows an employer to avoid liability if they can demonstrate that their ostensibly discriminatory actions were a "proportionate means of achieving a legitimate aim". It applies to:

1. Indirect discrimination.

2. Direct age discrimination (the only form of direct discrimination that can be justified).

3. Discrimination arising from disability. The burden of proof rests with the employer, who must demonstrate a legitimate aim corresponding to a real business need and that their actions were a proportionate means to achieve it, balancing business needs against the potential discriminatory impact.

Occupational Requirements (ORs)

The EqA 2010 provides specific occupational requirement (OR) exceptions where a particular characteristic is essential for the work:

1. General OR exception

   Applicable where, due to the nature or context of the work, being of a particular sex, race, disability, religion or belief, sexual orientation or age (or not being a transsexual person, married or a civil partner) is an OR. This must be a proportionate means of achieving a legitimate aim.

2. Employment for organised religion

   Allows ORs related to sex, gender reassignment, marital/civil partnership status, or sexual orientation to comply with religious doctrines or avoid conflicts with followers' convictions.

3. Employers with a religious ethos

   May justify a particular religion or belief as an OR in certain circumstances.

4. Armed forces

   It may require a job to be done by a man or a non-transgender person if proportionate to ensure combat effectiveness.

5. Employment services

   Can treat a person less favourably if the work itself could be refused due to an OR.

Positive Action

These provisions allow employers to take proportionate measures to address disadvantages, particular needs, or under-representation among individuals with a protected characteristic, without incurring discrimination claims. Employers are not obliged to take such action.

1. General positive action rule (section 158)

   Allows proportionate measures to enable or encourage persons with a protected characteristic to overcome disadvantage, meet needs, or increase participation where an employer reasonably believes they are disadvantaged, have different needs, or are under-represented.

2. Positive action in recruitment and promotion (section 159)

   Applies where an employer reasonably believes persons with a protected characteristic are disadvantaged or under-represented. It allows treating such a person more favourably in recruitment or promotion, provided that the person is "as qualified as" other candidates. These provisions are not intended to allow "positive discrimination" (giving an advantage solely based on a protected characteristic), which is generally unlawful, except for treating disabled people more favourably.

Statutory Provisions

Schedule 22 of the EqA 2010 acknowledges and allows for discriminatory treatment required or permitted by other statutory provisions:

1. Compliance with specific requirements related to age, disability, or religion or belief.

2. Statutory protection concerning women, especially in relation to pregnancy or maternity, or other circumstances creating specific risks for women.

3. Educational appointments that statutorily require an individual to be a member of a particular religious order, a woman (before 1990), or a canon.

4. Crown employment and nationality restrictions for foreign nationals in certain public services.

Other Exceptions

Additional exceptions include:

1. National security

   A discriminatory act is not unlawful if done for safeguarding national security and is proportionate for that purpose.

2. Providing benefits to the public

   An employee denied public benefits for a discriminatory reason cannot bring an employment tribunal claim merely because they are an employee of the provider.

3. Age discrimination-specific exceptions

   Allow discrimination relating to benefits based on length of service, redundancy pay, national minimum wage, and insurance benefits.

Bringing and Defending Claims

Discriminatory Contract Terms

Contract terms that unlawfully discriminate against an employee are unenforceable or void (sections 142, 145). Such a term can constitute a "continuing act" for time limit purposes, meaning time does not start until the contract is no longer in force. Contracts attempting to exclude or limit discrimination legislation or claims are void unless they are valid settlement agreements.

Questions and Answers

While no longer a statutory procedure, an informal question and answer process allows claimants to submit questions to employers to gather information, establish a claim, and assist in evidence formulation.

Complying with the Acas Code

Employment tribunals must consider the Acas Code of Practice on Disciplinary and Grievance Procedures. Unreasonable failure by either party to comply with the Code can lead to an increase or decrease of up to 25% in compensation awarded.

Mandatory Acas Early Conciliation

For claims presented on or after 6 May 2014, mandatory Acas early conciliation is required before bringing an employment tribunal claim.

Time Limits

A discrimination claim must generally be submitted within three months of the discriminatory act (section 123(1)).

• "Conduct extending over a period" (a "continuing act") means time runs from the end of that period, not individual incidents.

• Tribunals can extend time on "just and equitable grounds," a lower hurdle than in unfair dismissal cases.

• Participation in Acas early conciliation also extends the time limit.

Burden of Proof

Discrimination claims operate under a two-stage burden of proof (section 136):

1. The claimant must first establish a prima facie case of discrimination.

2. If successful, the burden shifts to the respondent to provide a non-discriminatory explanation. This approach is not rigid, and tribunals may make findings without strictly applying the burden of proof. In direct disability discrimination claims by job applicants, the burden shifts automatically if the complaint relates to reliance on health information.

Compensation and Other Remedies

Successful discrimination claims can result in one or more of the following orders:

1. A declaration of the parties' rights.

2. Compensation for financial losses (e.g., earnings, pension) and non-financial losses (e.g., injury to feelings, personal injury, aggravated damages). There is no upper limit on compensation. Compensation aims to put the claimant in the position they would have been in had the discrimination not occurred, and claimants must mitigate losses.

3. An appropriate recommendation for the respondent to take steps to reduce the adverse effect of discrimination on the claimant. Since October 2015, recommendations have been individual to the claimant. While not binding, failure to comply without a reasonable excuse can lead to an increase in compensation. If harassment involves sexual harassment and the employer breaches its duty to prevent it, compensation can be increased by up to 25%. In unintentional indirect discrimination, tribunals first consider declarations or recommendations before awarding compensation. Compensation can be awarded against both the employer and individual respondents.

Other Relevant Considerations

Acas Guidance

Acas (Advisory, Conciliation and Arbitration Service) provides guidance on discrimination in the workplace. While older, more detailed resources were archived in 2019 and should be used with caution, current, less detailed guidance is available.

The Equality and Human Rights Commission (EHRC)

The EHRC is an independent public body established in 2007 to promote equality and human rights across various protected characteristics. It provides guidance, including on equal opportunities policies, a code for employers and a supplementary document.

Equal Opportunities Policies

Employers are not legally required to have an equal opportunities policy, but the EHRC recommends it. Such policies can help set behavioural standards, reduce legal risk, and support an employer's "all reasonable steps" defence against vicarious liability.

1. Ideally, policies should be non-contractual to allow for amendments. However, they can become contractual through collective bargaining or custom and practice.

2. A well-drafted policy provides a positive message about valuing equality and diversity. The code for employers should include a commitment statement, define acceptable behaviour, outline rights and responsibilities, and detail procedures for concerns, complaints, breaches, implementation, monitoring, and review.

EU Discrimination Law Post-Brexit

EU discrimination law, primarily set out in directives like the Equal Treatment Directive and the Equal Treatment Framework Directive, formed part of retained EU law.

1. Post-Brexit, UK domestic legislation implementing EU law continues to apply, with courts and tribunals generally interpreting it in line with EU law. However, the Supreme Court and Court of Appeal can now depart from EU case law "when it appears right to do so".

2. The Retained EU Law (Revocation and Reform) Act 2023 (REUL Act) made significant changes, including repealing directly effective EU rights. However, key equality rights, such as the single source test for equal pay derived from Article 157 of the TFEU, have been reproduced in domestic law through the Equality Act 2010 (Amendment) Regulations 2023.

3. Historically, UK courts applied EU directives through principles like vertical direct effect (against emanations of the state) and indirect effect (interpreting domestic law consistent with directives). They could also "read words into" legislation to ensure compliance with directives and, in exceptional cases, disapply national legislation conflicting with a "general principle of EU law". The UK's membership of the ECHR and the applicability of ECtHR case law remain unaffected by Brexit.

Conclusion

The Equality Act 2010 provides a comprehensive and intricate framework for combating discrimination in employment. It covers a broad spectrum of protected characteristics and types of unlawful conduct, establishes clear lines of liability for employers and individuals, and outlines specific circumstances where discriminatory actions may be lawfully justified. The procedural mechanisms for bringing and defending claims, from early conciliation to the burden of proof and remedies, underscore the Act's commitment to ensuring fairness and equality in the workplace. While some areas, such as combined discrimination, await full implementation or further reform, the EqA 2010 remains the cornerstone of anti-discrimination law in Great Britain.