The Equality Act 2010 harmonises the law of discrimination, bringing together the various strands which cover race; sex; disability; pregnancy; maternity; age; gender re-assignment; religion of belief and sexual orientation. Most of its provisions came into force on 01 October 2010.
The time limit for lodging an Employment Tribunal complaint concerning an act of alleged discrimination is generally 3 months less one day from the act complained of, or omission to act complained of, unless the complaint concerns a “continuing act” of discrimination where the time runs from the date of the last act relied upon if part of a continuing act of discrimination. Due to the uncertainty of whether an act of discrimination would be considered a continuing act or not, it is always better to issue a claim with the Tribunal sooner rather than later to avoid time problems.
The Equality Act codifies the old legislation namely the:
- Equal Pay Act 1970
- Sex Discrimination Act 1975
- Race Relations Act 1976
- Disability Discrimination Act 1995
- Employment Equality (Religion of Belief) Regulations 2003
- Employment Equality (Sexual Orientation) Regulations 2003
- Employment Equality (Age) Regulations 2006
The new legislation introduces the new concept of “Protected Characteristics” which the law seeks to protect, namely:
- Gender Re-assignment
- Marriage and Civil Partnership
- Pregnancy and Maternity
- Religion or Belief
- Sexual Orientation
The law sets out the concept of “Prohibited Conduct” namely:
- – Discrimination by way of less favourable treatment in its Direct and Indirect forms;
- – Failure to comply with a duty to make reasonable adjustments (in disability cases);
- – Harassment; and
- – Victimisation
Direct Discrimination (S 13)
Note: Direct Discrimination cannot be justified under any circumstances save when the Protected Characteristic is Age.
S13 provides that a person (A) discriminates against another (B) if:
- Because of a protected characteristic;
- A treats B less favourably that A treats or would treat others.
[This has been changed from “on the grounds of” to make the Act more accessible and understandable to the ordinary layman.]
- Motive is irrelevant (there need be no conscious motive on the part if the discriminator);
- There is a distinction between unfavourable treatment (where an Employee is treated badly) and less favourable treatment (where other Employees receive better treatment even though the circumstances are not materially different).
- The legislation provides for a comparative test, so the Employee must point to another Employee who was treated more favourably in similar circumstances. So if the Employer would have treated all the employees badly, they will not normally be found to have discriminated.
- The comparison between the Employee and a Comparator to be relied upon must be comparing “like with like”; as such the relevant circumstances of the 2 cases must be the same or not materially different;
- The Comparator can be “actual” or “hypothetical” in the sense that the Employer would have treated another unnamed Employee more favourably. If there are actual Comparators, it is usually prudent to rely upon both actual and hypothetical Comparators, in the alternative.
- Note, where the prohibited characteristic is pregnancy or maternity, there is no need for a Comparator (actual or hypothetical) for obvious reasons.
There is no longer a need in Direct Discrimination for B to actually possess the prohibited characteristic themselves allowing “Associative Discrimination” as a wholly new concept. So, the Act covers less favourable treatment by A of B on the grounds of another persons (C’s) protected characteristic.
Under Associative Discrimination, the victim of discrimination need not possess the protected characteristic. For example, less favourable treatment of B by A because A believes B is gay is still protected even if B is not gay. Further, homophobic bullying even though the perpetrators knew that their victim was not gay is protected.
However, where the less favourable treatment is because of “marriage or civil partnership” then it is expressly provided by S 13(4) that the protected status must apply to the complainant. So B cannot complain because she or he has been less favourably treated by A because of C’s status as a married person for example.
Indirect Discrimination (S 19)
Indirect Discrimination looks beyond formal equality towards a more substantive equality of results. For example, criteria which appear neutral on their face may have a disproportionately adverse impact upon people of a particular colour, race, nationality or ethnic or national origin. Essentially this looks at the discriminatory impact of ostensibly neutral requirements.
A person A discriminates against another B if A applies to B a provision, criterion or practice (PCP) which is discriminatory in relation to a relevant protected characteristic of B’s.
A PCP is discriminatory in relation to a relevant protected characteristic of B’s if A applies, or would apply, the PCP to persons with whom B does not share the characteristic, but:
- (a) It puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it; and
- (b) It actually puts, or would put, B at that disadvantage; and
- (c) A cannot show the PCP to be a proportionate means of achieving a legitimate aim.
- Tribunals must determine the group of persons or “pool” for comparison.
- As with Direct Discrimination, there must be no other material difference between the circumstances relating to the pool of people who share the characteristic in issue with B and those who do not share the characteristic.
- The pool for comparison must be those who have an interest in the advantage or disadvantage in question.
- Only covers those who would be put at a disadvantage personally – so you cannot complain about a potentially discriminatory PCP if you don’t suffer any personal disadvantage yourself.
- It is not necessary that the Complainant cannot comply with the PCP only that they are put to a particular disadvantage;
- The Complainant must be part of a group who are disadvantaged (so not enough if only the Complainant is disadvantaged;
- “Provision” includes contractual provisions and non contractual policies; “Criterion” includes selection for appointment, promotion or dismissal. “Practice” is wider and enables the Tribunal; to look at what happens on the ground.
Justification (Defence of)
Indirect Discrimination can be justified (unlike Direct Discrimination (save when the PC is age)) if it is shown to be a proportionate means of achieving a legitimate aim.
- Whether the measure has a legitimate aim. The aim must not itself be discriminatory. This is a question of fact in each case. Include: rewarding loyalty, encouraging better access to employment, achieving a stable workforce;
- Whether the measure is capable of achieving that aim;
- Whether having regard to all factors including the possibility of achieving that aim by other or lesser means, the measure is proportionate. The Tribunal must balance the discriminator effect of the measure against the legitimate aim. This is not necessary when the legitimate aim is the protection of fundamental rights.
- It is not necessary to establish that there was no alternative to the PCP that was applied but the PCP has to be justified objectively notwithstanding its discriminatory effect.
- The principle of proportionality requires a Tribunal to take into account the reasonable needs of the business but it has to make its own judgement upon a fair and detailed analysis of the working practices and business considerations involved as to whether the proposal is reasonably necessary.
Harassment (S 26)
The section applies to all protected characteristics excluding “pregnancy and maternity” and marriage/civil partnership.
Unlike Direct Discrimination – there is no need for a Comparator.
Three forms of harassment are covered s26 (1) to (3):
Harassment occurs where A engages in:
- 1. Unwanted conduct related to a relevant protected characteristic S26(1);
- 2. Unwanted conduct of a sexual nature (S26(2));
And the conduct has the purpose or effect of either:
- Violating B’s dignity; or
- Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
- 3. Harassment occurs where A or another person engages in unwanted conduct of a sexual nature of that is related to gender reassignment or sex and the conduct has the purpose or effect of either s26(3):
- Violating B’s dignity; or
- Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
And because of B’s rejections of, or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted t the conduct.
- It is not necessary for B to possess the relevant characteristic;
- It is not necessary that A knew B to have the relevant characteristic (so could cover mistaken belief).
In deciding whether the conduct in question has the effects referred to, one must have regard to (S26(4)):
- The perception of B;
- The other circumstances of the case and;
- Whether it is reasonable for the conduct to have that effect.
There is no need for a Comparator.
A victimises B if A subjects B to a detriment because:
- (1) B actually does a protected act; or
- (2) A believes that B has done, or may do, a protected act.
Protected acts include:
- Bringing proceedings under the Equality Act;
- Giving evidence or information in connection with proceedings under the Equality Act;
- Doing any other thing for the purposes or in connection with the Equality Act and;
- Making an allegation (whether or not express) that A or another person has contravened the Equality Act. This includes reference to committing a breach of an equality clause or rule.
Note: Giving false information or making false allegations is not a protected act if given or made in bad faith.
Discrimination in Employment
Employees and Applicants (S 39)
An Employer A must not discriminate or victimise a person B:
- In the arrangements A makes for deciding whom to offer employment;
- As to the terms on which A offers B employment;
- – By not offering B employment;
- – As to B’s terms of employment;
- – In the way A affords B access, to opportunities for promotion, transfer or training of for receiving any other benefit, facility or service;
- – By dismissing B and;
- – By subjecting B to any other detriment.
An Employer A must not in relation to employment by A harass a person B
- (1) Who is an employee of A’s and;
- (2) Who has applied for employment,
A is treated as harassing B where:
- – A third party harasses B in the course of B’s employment; and
- – A failed to take such steps as would have been reasonably practicable to prevent the third party from doing so
This will not apply unless A knows that B has been harassed in the course of B’s employment on at least 2 occasions by a third party; and it does not matter whether the third party is the same or a different person on each occasion.
Note: Similar principles apply as between the Principal and Contract workers.
It is possible to receive assistance in a claim for discrimination from the Commission for Equality and Human Rights Commision or Disability Rights Commission.
If an Employment Tribunal is satisfied that discrimination has taken place there are a number of remedies available to it. By far the most common remedy to discrimination is an award of compensation. Tribunals can also make recommendations for improvements in the employer’s policies and systems, although these are unusual. In cases of discrimination, there is no cap upon a level of discrimination compensation that can be ordered by the Employment Tribunal and damages can include an element to cover injury to feelings and, occasionally, if the employee suffered actual psychological injury, damages for personal injury. The damages can also be increased if the employer’s behaviour was insulting or malicious, called “aggravated damages”.
The vast majority of awards for injury to feelings are for less than £6,000. Most one-off acts of discrimination (such as a refusal to offer a job, or a one-off incident of harassment), fall into this category. For more serious cases, tribunals will award between £6,000 and £18,000. For the absolute worst cases, covering very serious harassment ongoing over many years, tribunals award between £18,000 and £30,000.