1. Overview of discrimination law

The extent of workplace discrimination

Despite the existence of discrimination law there is indisputable evidence of continuing discriminatory practices in the workplace. Individuals and organisations have proved persistently unwilling to resist discriminating against others and this has pressured governments to strengthen equality laws.

Women continue to earn significantly less than men; black workers are more likely to be found in lower-graded jobs; disabled workers are more likely to be unemployed; lesbian, gay and bisexual workers experience considerable levels of harassment at work; and there is ample evidence of discrimination against workers on the grounds of their religion/belief or age.

Unlawful forms of discrimination

Not all discrimination is unlawful. Legislation provides protection from specific types of discrimination, and it is only in these instances that the law can be used to challenge an employer’s discriminatory treatment. For example, the fact that your employer treats you less well, or pays you less than other colleagues, can only be challenged using discrimination law if the reason for the different treatment stems from one of the forms of discrimination protected by law.

In the case of Zafar v Glasgow City Council [1998] IRLR 36, the House of Lords (now known as the Supreme Court) held that the fact that the employer treated Mr Zafar, a black employee, unfavourably did not support a race discrimination claim, since the employer treated all employees equally badly, regardless of their race.

The different forms of unlawful discrimination are set out below.

Age

Section 5 of the Equality Act 2010 (EA 10) makes it unlawful to discriminate against a worker on the grounds of their age — although the employer will be able to argue that its actions are objectively justified (see Chapter 6).

An individual may well be able to bring a claim, even if they don’t consider themselves to be particularly old or young. Specifically, whether someone has been subjected to less favourable treatment on the grounds of age may simply be a relative concept. To initiate a claim, an individual need therefore just show that they are in another age bracket to people who are receiving preferential treatment.

An individual can identify themselves as being part of one of a number of different age groups. The following example is taken from the Equality and Human Rights Commission’s draft Code of Practice on Employment (EHRC Code):

Similarly, an individual may be able to bring a claim, even if they don’t consider themselves to be young or old, but others consider them to be too young or too old for a certain role. For example, a 35 year old may not consider him or herself old in general terms, but may be considered too old to work behind a bar. Also, a 35 year old may not consider him or herself young in general terms, but may be considered too young to be appointed to a role as a senior manager.

Also, any employment benefits based on a worker’s age or length of service are potentially discriminatory. Age-related benefits will have to be justified under the general objective justification defence. But, under Para 10, Schedule 9, Part 2 EA 10 there are different criteria for justifying length-of-service benefits:

• if the length of service required for a particular benefit is five years or less, the benefit is not unlawful because there is an automatic exemption; but

• if the benefit relates to length of service of more than five years it will be justified (and therefore lawful) if it “reasonably appears” to the employer that the benefit “fulfils a business need … for example, by encouraging the loyalty or motivation, or rewarding the experience, of” its workers.

A common example of a length-of-service benefit is additional holiday after a certain number of years’ employment.

Disability

Section 6 of the Equality Act 2010 (EA 10) makes it unlawful (including for small employers) to discriminate on the grounds of a person’s disability. Section 6(1) of the EA 10 defines disability as a physical or mental impairment and this includes sensory impairments which affect vision or hearing. Such impairments must have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities (section 212(1) of the EA 10), and be long-term, meaning that the impairment(s) has lasted or will last at least a year (para 2(1), schedule 1 EA 10).

Tribunal rulings have made it clear that the following forms of physical impairment are capable of amounting to a disability:

• abdominal pain;

• asthma;

• bipolar affective disorder;

• cerebral palsy;

• colitis;

• congenital myotonic dystrophy;

• deafness;

• emphysema;

• ME (chronic fatigue syndrome);

• migraine;

• mobility impairment;

• multiple sclerosis;

• photo sensitive epilepsy; and

• visual impairment.

A person whose mobility is impaired can come within the definition, even if the impairment arises from a mental and not a physical condition (College of Ripon & York St John v Hobbs [2002] IRLR 185). A person who is suffering from a condition which itself is a result of medical treatment to relieve their disability will also be covered (Kirton v Tetrosyl [2002] IRLR 840).

Mental impairments that come within the definition include:

• dyslexia;

• paranoid schizophrenia;

• post-traumatic stress disorder; and (potentially)

• depression.

Conditions such as HIV and cancer are also included: para 6, Schedule 1, EA 10. People suffering from such conditions are protected under the EA 10, from the date of diagnosis. Also progressive conditions and those that fluctuate or recur can amount to disabilities: paras 2(2) and 8, Schedule 1, EA 10.

Where an individual has made a recovery from an impairment that constituted a disability, s/he will still be able to claim the protection of the disability discrimination provisions of the EA 10. Similarly, where an individual’s impairment can be corrected by him or her taking certain measures (medication, for example), s/he will remain protected: para 5, Schedule 1, EA 10. Exceptions to this are normal eyesight deficiencies which can be corrected by the wearing of glasses or contact lenses. The explanatory notes to the Equality Act 2010 offer the following two examples to illustrate who is likely to be protected from disability discrimination:

For further information see: www.officefordisability.gov.uk/docs/wor/new/ea-guide.pdf

Additionally, under section 60 of the EA 10, employers can no longer ask about a job applicant’s health. However, an employer can still seek some medical information in certain circumstances. Specifically, if a request is designed to help the employer understand whether the individual can carry out a key function of the post, to monitor diversity, or to know what reasonable adjustments the individual needs in order to be able to participate in a job assessment process. Once an individual has been appointed, the restrictions on an employer seeking medical information are lifted.

Gender reassignment

Under section 7(1) of the Equality Act 2010 (EA 10) discrimination on the grounds of gender reassignment is unlawful. Specifically, someone who is proposing to undergo, is undergoing or has undergone a process (or part of a process) to reassign their gender (by changing physiological or other sex attributes) is protected.

Gender reassignment is a personal rather than a medical process — in other words someone does not need to be undergoing medical treatment in order to be covered by the Act. The following example is taken from the Equality and Human Rights Commission’s draft Code of Practice on Employment (EHRC Code):

This will be the case even where someone has begun the process of gender reassignment, but then does not proceed:

Even while an individual is pre-operative, an employer will be obliged to take some steps to accommodate their needs. However, in one case, arrangements made for an employee to use the disabled persons’ toilets (rather than the women’s toilets) during a temporary period prior to gender assignment having been concluded, was held not to be contrary to discrimination law (Croft v Royal Mail [2003] IRLR 592).

A post-operative transgendered person has all of the rights available to their new sex:

In terms of marriage, the law recognises those who can demonstrate that they have taken decisive steps towards living permanently and fully in their acquired gender (as opposed to the gender in which they were registered at birth). In the case of KB v National Health Service Pensions Agency Case C-117/01, the European Court of Justice held that a pension fund rule conferring survivors’ rights only on married couples discriminates against transgendered people.

Applications for legal recognition in the acquired gender are considered by a Gender Recognition Panel. If the panel issues a Gender Recognition Certificate, a new birth certificate will be available.

Marriage and civil partnership

Under section 8 of the Equality Act 2010 (EA 10) discrimination on the grounds that someone is married or is in a civil partnership is unlawful. The unions must be recognised under UK law. Groups that are not protected under EA 10 are:

• people who are to marry or enter into a civil partnership, but have not yet done so;

• people who have been married or were part of a civil partnership (which has since been dissolved);

• people who do not wish to or have no intention of marrying or entering into a civil partnership;

• people who are single; and

• people who cohabit or are in relationships (but are not married, nor in a civil partnership).

The following example is taken from the Equality and Human Rights Commission’s draft Code of Practice on Employment (EHRC Code):

An employer offers “death-in-service” benefits to the spouses and civil partners of their staff members. A worker who lives with her partner, but is not married to him, wants to nominate him for death- in-service benefits. She is told she cannot do this as she is not married. Because being a cohabitee is not a protected characteristic, she would be unable to make a claim for discrimination.

Pregnancy/maternity leave

Under section 18 of the Equality Act 2010 (EA 10) — and also under the Employment Rights Act 1996 — discrimination on the grounds of pregnancy or maternity is unlawful. Specifically, if a female worker is treated unfavourably due to her pregnancy (or because she has an illness related to her pregnancy) she will have a claim. Additionally, where a female worker is treated unfavourably because she exercised, had sought to exercise, is exercising, or is seeking to exercise her right to maternity leave — she will also have a claim.

This type of unlawful treatment amounts to direct discrimination (see Chapter 2) and, therefore, cannot be justified by the employer. The intention or motivation of the employer will be irrelevant in any tribunal’s assessment. All that the employee need show is that the employer knew, suspected or believed that she was pregnant or (for example) going to be on maternity leave, and because of that, treated the individual less favourably.

Examples of unlawful pregnancy discrimination include:

• treating a woman less favourably because (due to her pregnancy) she is temporarily unable to carry out her work;

• treating a woman less favourably because of the costs to the business of covering a woman who (due to her pregnancy) is absent from work;

• treating a woman less favourably because her performance at work is weaker due to the fact that she is suffering from a pregnancy-related condition (such as morning sickness);

• treating a woman less favourably because she cannot attend a disciplinary meeting due to the fact that she is suffering from a pregnancy-related condition (such as morning sickness);

• being unwilling to extend the probationary period of a woman whose maternity absence meant that she had not had the same length of time actually working in the job to demonstrate her abilities (Haines Lee v Relate Berkshire EAT/1458/01);

• refusing to hire a suitable worker because she is pregnant (Mahlburg v Land Mecklenburg Vorpommern [2000] IRLR 276);

• subjecting a woman to disciplinary action because she refuses to do certain tasks on the basis that they present a risk to her as a pregnant woman;

• failing to carry out a risk assessment where a woman is pregnant (O’Neill v Buckinghamshire County Council UKEAT/0020/09);

• treating a woman less favourably because (due to her pregnancy) a woman is prevented by health and safety regulations from carrying out her work;

• including the amount of pregnancy-related sickness absence a woman has had when deciding whether to terminate someone on the grounds of capability;

• omitting to carry out an annual assessment of a woman’s work because she is on maternity leave;

• not telling an employee on maternity leave about an internal job vacancy for which she would have applied (Visa International Service Association v Paul [2004] IRLR 42);

• omitting to consult a worker who is on maternity leave about changes to work practices or about a risk of redundancy;

• denying a woman on maternity leave the right to a bonus (Gus Home Shopping v Green [2001] IRLR 75);

• assuming that, following childbirth, work will be less important to a woman and therefore allocating her less interesting or responsible tasks;

• refusing to allow her to return to her job at the end of her maternity leave on the same terms and conditions as applied before she left (Rashid v Asian Community Care Services EAT/480/99); and

• not allowing a woman on maternity leave to return to work before the end of her leave because the employer knew that she was pregnant again and wanted to save on costs (Busch v Klinikum Neustadt [2003] IRLR 625).

Pregnancy or maternity leave need not be the only reason for the less favourable treatment as this example from the Equality and Human Rights Commission’s draft Code of Practice on Employment (EHRC Code) shows:

An individual who believes that they have suffered pregnancy/maternity discrimination and brings a claim does not need to point to a comparator. However, the treatment of other staff can be relevant:

Male workers cannot complain about preferential treatment (i.e. more generous sick leave provisions) given to female workers relating to their pregnancy/maternity:

Race

Section 9 of the Equality Act 2010 (EA 10) outlaws discrimination on the grounds of race. An individual is a member of a racial group if they are one of a number of people who shares the same colour, nationality, ethnic or national origins.

In order to comprise an ethnic group, a person must be able to show that the group is considered by others and itself to be distinct and separate due to certain characteristics. An ethnic group must have in common a long history and its own cultural traditions. The existence of a shared language, geographical origin, religion and literature are not essential requirements, but may help establish an ethnic group. Jews, Romany Gypsies, Irish Travellers, Scottish Gypsies, Scottish Travellers and Sikhs have already been recognised as ethnic groups by the courts.

National origin is defined by history and geography and must involve the current or previous existence of a nation. It is distinct from nationality in that someone’s national origin cannot be changed. For instance, a person may be of Chinese national origin — yet a citizen of another country.

Under section 4 of the EA 10, a racial group can comprise one or more racial groups — for example, “black Britons” or “South Asians”. A racial group can also be a group that is defined by exclusion — for instance, “non-British”. Discrimination on grounds of racial group would include refusing to hire an English employee in preference to a Scottish one (BBC Scotland v Souster [2001] IRLR 150).

Someone may well be eligible to claim race discrimination on multiple grounds. For instance, a “Nigerian” person being mistreated at work may well be suffering discrimination under each of the categories of colour, nationality, ethnic or national origin. Similarly, in cases where a person’s ethnicity and religion or belief are closely interrelated, it is probably good advice to claim on both the grounds of race and religion/belief discrimination (see below).

Religion or belief

Section 10 of the Equality Act 2010 (EA 10) makes it unlawful to discriminate against a worker on the grounds of their religion or belief. Under section 10(1) of the EA 10 protection is extended to all religions (including denominations of religions such as Methodists within Christianity) — provided that they have a clear structure and belief system. Importantly, a lack of religion is also covered.

Section 10(2) of the EA 10 defines a belief as any religious or philosophical belief. Guidance produced by the arbitration and conciliation service Acas states that if a belief is profound and affects someone’s way of life or world-view, it is likely to be protected. The following case sets out the full-range of tests that tribunals should apply:

The EAT (which found for Mr Grainger) set the following tests for establishing whether an individual’s beliefs amount to protected philosophical beliefs:

• the belief must be genuinely held;

• it must be a belief and not simply an opinion based on the present state of information available;

• it must be a belief as to a weighty and substantial aspect of human life and behaviour;

• it must attain a certain level of cogency, seriousness, cohesion and importance; and

• it must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the rights of others.

Subject to this, a protected “belief” need not be a fully-fledged system of thought. Pacifism, vegetarianism, Darwinism, humanism and atheism would probably all be covered. Support of a political party would be excluded, but the EAT did not rule out belief in a political philosophy, such as socialism being protected.

The following example of a belief that is not protected is taken from the Equality and Human Rights Commission’s draft Code of Practice on Employment:

There are clearly limits on the protection afforded to people under section 10 of the EA 10:

This point is also illustrated in the following case:

Asserting a right under section 10 of the EA, where that right conflicts with other anti-discrimination provisions, may be problematic:

In Ladele v London Borough of Islington UKEAT/0453/08/RN, a Christian births, marriages and deaths registrar refused to perform civil partnerships. Having been disciplined and threatened with dismissal, Ms Ladele claimed that she had suffered religious discrimination.

The Court of Appeal found that there was no direct discrimination or harassment because the reason the Council had treated Ms Ladele as it did, was not because she was a Christian but because she was refusing to carry out civil partnership ceremonies.

As to indirect discrimination, the policy of requiring all registrars to perform civil partnerships did put Ms Ladele, who believed that civil partnerships were contrary to the will of God, at a disadvantage when compared with others. The question was whether the Council could justify its policy as a proportionate means of meeting a legitimate aim.

The Council aimed to provide an efficient civil partnership service and maintain its commitment to promote equal opportunities. The CA decided that the Council’s requirement of Ms Ladele was therefore proportionate and in pursuit of a legitimate aim. Ms Ladele was working in a secular job and was being asked not to discriminate against gay people in the course of that job. It did not stop her worshipping the way she wished.

The CA said that Ms Ladele’s religious views should not be permitted to override the Council’s wish that all its registrars manifest equal respect for the homosexual and heterosexual community.

Sex

Section 11 of the Equality Act 2010 (EA 10) outlaws discrimination against either sex. Although the intention behind the Sex Discrimination Act 1975 (the original gender discrimination legislation) was to protect women, discrimination against men is unlawful. Nevertheless, in practice, it is mainly women who experience sex discrimination in the workplace — only a fraction of complaints are from men who believe they have been discriminated against on the grounds of their gender.

Pay secrecy and information on the pay gap

Additionally, under section 77 of the EA 10, employers are no longer able to enforce provisions of a contract which prevent an employee revealing his or her pay. Equally it is permissible for an individual to ask his or her colleague about their pay in order to establish whether there is a connection between pay levels and those with a protected characteristic.

However, there is as yet no obligation on all employers to report on the gender pay gap in their workplace. Specifically, the coalition government has stated that it would prefer not to bring into force section 78 of the EA 10. Instead it favours a voluntary scheme, providing sufficient progress is made in closing the pay gap.

Sexual orientation

Section 12 of the Equality Act 2010 (EA 10) makes it unlawful to discriminate against a worker on the grounds of their sexual orientation. Section 12(1) of the EA 10 defines sexual orientation as an orientation towards:

• persons of the same sex;

• persons of the opposite sex; or

• persons of either sex.

As such all forms of sexual orientation are covered, although in practice it is lesbians, gay men and bisexuals who are most likely to face discrimination and therefore most likely to use the legislation to enforce their rights.

Who the law covers

The Equality Act 2010 (EA 10) covers all workers, not just employees, provided there is a contractual relationship between the employer and the worker, whether a contract of service (a standard employment contract) or a contract for services (where employment has elements of self-employment — for example, agency workers). Sub-contract workers are also covered, as are those obtaining work through employment agencies. The case below shows how the self-employed can be covered by discrimination law.

However, there are some limits to the scope of the legislation. The main one is that the individual has to be personally performing the work, as in the following case.

However, even though they have no employment contract, job applicants are covered.

Public Sector Equality Duty

This is where public authorities are required to have due regard to the need to eliminate discrimination, harassment, victimisation and so on, as well as advancing equality of opportunity and fostering good relations between those with and without protected characteristics. While the public sector was already bound by an equality duty in relation to disability, race and sex, the Equality Act 2010 will extend this duty to age, gender reassignment, religion/belief and sexual orientation. This is meant to happen by April 2011 but the timetable may slip.

However, there will be no requirement on public authorities to take into account marriage/civil partnership considerations. Also, the coalition government has confirmed that the duty on public authorities to have due regard in decision making to reducing socio-economic inequalities (section 1 of the EA 2010) will not be brought into force by it.

Working outside Great Britain

The Equality Act 2010 (EA 10) covers all those working in Great Britain (Northern Ireland is covered by separate legislation). If you only work abroad occasionally you are not disbarred from making a discrimination claim. The one exception concerns the extent of protection afforded to seafarers — UK unions who organise seafarers are continuing to campaign to have all exclusions removed.

Who the law does not cover

There are some groups of workers who are specifically excluded from the right to discrimination protection. The Equality Act 2010 may in some circumstances exempt charities; training (under the positive action provisions — see Chapter 7); and acts done for the purpose of safeguarding national security.

Illegal contracts

Normally the law says that if a contract is illegal (for example, if there is an agreement between the employer and worker not to deduct tax and National Insurance) the worker cannot enforce contractual and statutory rights against the employer. In effect, those who agree to work illegally risk being left unprotected if their employer does not honour their employment rights. The aim is to make it unattractive to workers to agree to work under these kinds of contracts. However, in cases of unlawful discrimination, employers probably cannot escape responsibility for acts of discrimination by pointing to the fact that the contract is illegal.

In the case of Hall v Woolston Hall Leisure [2000] IRLR 578, the Court of Appeal ruled that an employee still had the right to pursue a sex discrimination claim even though she had agreed to a scheme to avoid paying tax. In the case below, the EAT, examining a claim made by a foreign student who worked nights as a security guard, reached a similar conclusion:

However, if the illegality is entirely due to the employee’s actions, a tribunal may remove their right to bring a discrimination claim. In the case of X v Governing Body of Addey and Stanhope School [2004] EWCA Civ 1065, the Court of Appeal held that an employee’s decision to work in the UK without documents was criminal and meant that he could not pursue a discrimination claim.