2. Direct and indirect discrimination

The law defines two types of discrimination — “direct” and “indirect”. Direct discrimination is where someone is treated less favourably for one of the outlawed reasons — there are no circumstances when an employer can lawfully justify it (except in relation to age discrimination claims, and claims by a non-disabled person that a disabled person has been treated more favourably). Indirect discrimination is where an employer applies a provision, criterion or practice which is discriminatory in relation to a protected characteristic — this can be justified. Discrimination can also be by way of harassment or victimisation (see Chapters 3 and 4).

In most cases a worker will be pursuing either a direct or an indirect discrimination claim. But there will be occasions when the facts point to both claims being present. In the case of Jaffrey v Department of Environment, Transport and the Regions [2002] IRLR 688, the EAT ruled that there could be situations where pursuing both would be appropriate.

Direct discrimination

Section 13 of the Equality Act 2010 (EA 10) defines direct discrimination as where an employer, because of someone’s protected characteristic, treats him or her less favourably, than they treat or would treat others. The protected characteristic must be a cause of the less favourable treatment, but it does not have to be the only cause. Also, an individual can complain even if they do not have the protected characteristic themselves — see sections on discrimination by association and perceptive discrimination.

The law says that if employers treat someone less favourably than their comparator because of a protected characteristic, the action is automatically discriminatory. It cannot be justified except in relation to age discrimination claims, and claims by a non-disabled person that a disabled person has been treated more favourably — “reverse discrimination”. In other words, no arguments can be advanced by employers to explain why it was necessary to directly discriminate, and their motivation is irrelevant. However, employers may be able to escape liability for “reverse discrimination” if they can show that their demand for someone to have a protected characteristic amounts to a genuine occupational requirement: Para 1, Schedule 9 EA 10.

Also, an employer can justify direct discrimination on the grounds of age — specifically, an employer will escape liability if they can show that the less favourable treatment is a proportionate (meaning appropriate and necessary) means of achieving a legitimate aim: section 13(2) of the EA 10. The following examples are taken from the Equality and Human Rights Commission’s draft Code of Practice on Employment (EHRC Code):

Also, an employer can justify direct discrimination on the grounds of disability where they treat a disabled person more favourably than a non-disabled person: section 13(3) of the EA 10.

Other than in relation to claims of racial segregation, where people are kept apart based on their race, and pregnancy/maternity claims, the employee will need to compare him or herself against someone who does not have the protected characteristic. The comparator must be someone whose relevant circumstances are the same or nearly the same, and s/he must be someone who has not suffered (or would not suffer) the less favourable treatment complained of: section 23(1) of the EA 10. If the claimant is disabled, his or her comparator will be someone who does not have his or her disability but who does have his or her skills: section 23(2)(a) of the EA 10 (no comparator is necessary for claims of discrimination arising from disability — see below). If an actual comparator cannot be identified, a hypothetical comparator can be constructed as follows:

The employee will also need to show that the less favourable treatment has put them at a disadvantage: for example, refusal of a job, being deprived of a choice, excluded from an opportunity. However, they will not need to show that they have suffered financial loss:

Discrimination by association

The definition of direct discrimination is broad enough to also prohibit discrimination by association. This is where an individual is discriminated against because of their connection to someone who has a protected characteristic (for example, an employee is turned down for promotion because of his manager’s dislike of their friendship with a colleague in another department who is undergoing gender reassignment).

In English v Thomas Sanderson Ltd [2008] EWCA Civ 1421, a heterosexual man was subjected to homophobic insults at work, even though his colleagues knew that he was not gay. Mr English was entitled to privacy and did not have to declare his sexuality in order to be able to bring a claim. The Court of Appeal found that the verbal abuse (on grounds of sexual orientation) that Mr English suffered was an insult to his dignity and he was, accordingly, entitled to damages under the 2003 regulations.

While discrimination by association was already unlawful under race, religion/belief and sexual orientation anti-discrimination legislation, the Equality Act 2010 extends protection against this type of behaviour to the fields of age, disability, gender reassignment and sex almost certainly overruling the decision in Kulikaoskas v MacDuff Shellfish UKEATS/0062/09/BI). However, there is one characteristic that is specifically excluded from associative discrimination and that is on the grounds of marriage/civil partnership.

Perceptive discrimination

As with discrimination by association, the definition of direct discrimination is broad enough to also prohibit perceptive discrimination. This is where an employee is treated less favourably because they are believed (incorrectly) to have a protected characteristic, for example, where an employee suffers abuse for being a Muslim when in fact they are of another faith, or of no faith.

Again, although prescriptive discrimination was already unlawful under age, race, religion/belief and sexual orientation anti-discrimination legislation, the Equality Act 2010 expressly extends protection against this type of behaviour to the fields of disability, gender reassignment and sex. As with discrimination by association, the one characteristic that is specifically excluded from perceptive discrimination is marriage/civil partnership.

Discrimination arising from disability

It is clearly unlawful to directly discriminate against a person on the ground of their disability. An example of what would amount to direct disability discrimination can be found in the case of British Sugar v Kirker [1998] IRLR 624, where the EAT held that Mr Kirker’s selection for redundancy because he was disabled amounted to unlawful direct discrimination.

In addition to direct disability discrimination being outlawed there is a new offence of “discrimination arising from disability”. This occurs where a disabled person is treated unfavourably because of something arising in consequence of their disability: section 15(1) of the Equality Act 2010.

In order to establish that discrimination arising from disability has occurred, an individual need only show that they suffered unfavourable (i.e. disadvantageous) treatment because of something connected with their disability. For instance:

The consequences of a disability cover anything which is the effect or result of a disabled person’s condition. For example:

It is not necessary to select a non-disabled comparator against whom the disabled person has been less favourably treated. For instance, in the case of a disabled person who has been dismissed for being off on long-term sick leave, the fact that a non-disabled person would also have been dismissed will not prevent a claim being brought.

However, the employer has two defences — firstly, that it did not know (nor could reasonably be expected to know) that the individual was disabled. Where an employer takes precipitous disciplinary action, they should nevertheless consider whether the conduct complained of is out of character and why. For example:

An employer can also escape liability by showing that the discriminatory treatment was objectively justified (i.e. a proportionate means of achieving a legitimate aim): see Chapter 6.

Indirect discrimination

Section 19 of the Equality Act 2010 (EA 10) prohibits indirect discrimination. Under this definition, which applies to all forms of discrimination, an employer indirectly discriminates where a “provision, criterion or practice” applies equally, but where:

• it puts, or would put, those in the protected group at a disadvantage;

• it puts the individual taking the claim at a disadvantage; and

• the employer cannot show that it is a proportionate means of achieving a legitimate aim.

Exactly what the concept of “disadvantage” covers is not defined in the EA 10. However, the courts have defined what the similar term “detriment” means which is something that a reasonable person would complain about — although it need not be quantifiable. It is irrelevant that the person could have complied with the provision, criterion or practice. For example, if an employer recruiting for a fast food restaurant requires employees, without exception, to wear hats as part of the organisation’s uniform, it would be no defence for the employer to state that a Sikh man could apply as all that he had to do was not wear his turban.

A claim may not necessarily fail just because the individual cannot show that a majority of his or her protected group are disadvantaged by the practice, criterion or provision. It may be sufficient to just show that a significantly greater proportion of a protected group (than a non-protected group) are, or would, be disadvantaged. This is always subject to the proviso that the individual bringing the claim is being, or would be, him or herself disadvantaged. The following examples are taken from the Equality and Human Rights Commission’s draft Code of Practice on Employment (EHRC Code):

One way of establishing that a provision, criterion or practice puts (or would put) a protected group at a disadvantage is through statistics. Statistics relevant to your particular workplace can be obtained by submitting a questionnaire to your employer (see Chapter 5). Also, some statistics are provided on a national and regional basis by the Office of National Statistics (www.statistics.gov.uk).

Indirect discrimination is actionable in the tribunals. The employer has a defence if they can justify it and can prove that it was a proportionate way of achieving a lawful outcome. In other words, if there was another reasonable way of achieving the same outcome without the need to discriminate, the employer would normally be expected to take that other way.

Direct and indirect discrimination in practice

Claims involving direct and/or indirect discrimination can cover a wide range of employment issues, from being denied a job to being made redundant. The main circumstances when the law will be relevant are highlighted below.

Applying for jobs

It is unlawful for an employer to advertise a job stating that the individual must be of one sex, race, or any other factor covered by discrimination law. The only circumstance where it is lawful to directly discriminate in this way is where the individual’s protected characteristic is a genuine occupational requirement of the job: Part 1 of Schedule 9 Equality Act 2010 (EA 10). For more information see Chapter 6.

The Equality and Human Rights Commission (EHRC) has published a code of practice giving advice on how to ensure that job applications are dealt with in a non-discriminatory way.

It has probably become somewhat rarer for employers to be caught out discriminating directly against job applicants. The days when jobs were openly advertised as, for example, not being available to female candidates, have gone, although in the area of race discrimination there is still evidence of employers taking account of people’s names and deciding to reject those which sound “foreign”.

Indirect discrimination in job offers is probably more common. This involves making offers of jobs dependent on criteria that are more difficult for some groups to meet than others.

There are special rules that apply in relation to immigration law and these can impact on the anti-discrimination provisions of the EA 10. Employers have a legal duty not to employ those who have no right to work in the UK. To comply with that duty employers must ask for documentary evidence of proof of the right to work. There is a risk that employers may interpret these rules to impose different requirements on job applicants from ethnic minorities or individuals who may be perceived to be less obviously British-born. Representatives need to make sure that this does not happen in their workplace, as it is unlawful. If an employer is asking some applicants for evidence of their right to work, the request should be made to all applicants.

Access to promotion and job changes

Employers have to ensure that employees have equal access to jobs once in the workplace, including access to promotion. If they operate a practice that makes it more difficult for members of any one of the protected groups to apply, this will amount to discrimination (unless it can be objectively justified). Examples might include:

• refusing an employee’s request to transfer to part-time work. In the case of Chief Constable of Avon and Somerset v Chew EAT/503/00 it was held that, taking into account the overall size of the workplace and the fact that the proportion of women was already quite small, the employer’s refusal to accommodate a request for part-time work discriminated against women;

• making the offer of a bonus in return for agreement to work different shifts only to a group of predominantly male workers on the basis that the women were less determined than the men to challenge the new shift arrangements (MFI v Bradley and others EAT/1125/02);

• refusing a woman’s request to work from home due to difficulties with childcare (Lockwood v Crawley Warren Group EAT/1176/99);

• passing over a black teacher for promotion in favour of a junior, less qualified white teacher, where there was evidence to the tribunal of subsequent acts of discrimination (Chattopadhyay v Headmaster of Holloway School [1981] IRLR 487);

• introducing a new shift pattern under which a woman worker with a young child would have had to work unsocial hours (London Underground v Edwards [1995] IRLR 355); and

• imposing a mobility clause in a female employee’s contract in circumstances where fewer women could comply with the requirement (Meade-Hill v British Council [1995] IRLR 478).

The Court of Appeal, in the case of West Midlands PTE v Singh [1998] IRLR 186, held that employers should, in response to a request, provide statistical data to individuals who have been turned down for promotion, and who allege that discrimination was involved. This should show who had applied and who had been accepted for similarly graded posts, in addition to the post that the worker had applied for. As with all indirect discrimination, employers can avoid discrimination claims if they can provide justifiable and non-discriminatory reasons for the decision.

Terms and conditions

It is unlawful to discriminate over the terms and conditions available to staff, if based on one of the protected forms of discrimination. For example, less favourable treatment of part-time workers (such as by excluding them from entitlement to bonuses) would be capable of amounting to indirect sex discrimination under the Equality Act 2010 (EA 10), because it would detrimentally affect more women than men. However, the employer may be able to escape liability by justifying the indirect discrimination (see Chapter 6).

Part-time workers also have legal protection under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. These were introduced to comply with an EU directive and make it unlawful to provide less favourable treatment to part-time workers. When taking up cases involving part-time workers, representatives need to consider whether there are claims under these regulations as well as under sex discrimination law.

Dress codes also have the potential to discriminate if the employer imposes a requirement that disadvantages one group. In the case of Department for Work and Pensions v Matthew Thompson EAT/0254/03, a requirement that men wear ties was not necessarily discriminatory. The EAT held that it was lawful for an employer to impose rules regarding the wearing of specific items of clothing on one sex to promote “smartness”, provided that the same standard of smartness applied to both sexes.

Discrimination in pay is covered by the Equal Pay Act 1970 and is outside the scope of this booklet.

Disciplinary and grievance procedures

Employers must comply with non-discrimination legislation when applying disciplinary or grievance procedures. In general, this means that all else being equal, they should treat employees the same when found guilty of the same offences, except in rare cases where a manager imposing a disciplinary penalty is unaware of how similar offences were treated in the past.

Examples of what would amount to discrimination in disciplinary or grievance procedures include:

• carrying out an investigation into an allegation of fraud that lasted longer than would have been the case if the employee had been white (Garry v LB Ealing [2001] IRLR 681);

• dismissing an employee who had been involved in a fight, without taking account of his prior complaints of racism, when race was the background to the fight; and

• carrying on with a disciplinary hearing even though the employee was absent due to a pregnancy-related sickness (Abbey National v Formoso [1999] IRLR 222).

For more information on disciplinary and grievance procedures, see the LRD booklet Disciplinary and grievance procedures — a guide for union reps.

Termination of employment

Employers who dismiss for discriminatory reasons, or who select employees for redundancy on discriminatory grounds, are in breach of discrimination law. Although employees can pursue legal remedies just under dismissal and redundancy law, there are good reasons for also adding claims under discrimination law (if this is the background to the termination). The main reason is that compensation in discrimination claims is unlimited, whereas in dismissal cases it is set at a maximum of £65,300 (as of 1 February 2010). Additionally, although a claimant cannot recover twice for the same type of loss, there are more types of compensation that can be claimed under discrimination law (see Chapter 8).

Employees who resign rather than carry out their employer’s instructions to discriminate are also protected under discrimination law, even if they themselves would not fall under discrimination protection, for example if they are not black but are instructed to discriminate against a black applicant (Weathersfield v Sargent [1999] IRLR 94).

There will be some cases where the mere ending of a fixed-term temporary contract may amount to discrimination, if not accompanied by the offer of new work. This would be the case where the impact of the decision to terminate a fixed-term employee’s contract falls more heavily on women, black workers, the disabled or any other group protected by discrimination laws.

In the case of Whiffen v Milham Ford Girls School [2001] IRLR 468, the Court of Appeal held that a policy of making temporary workers redundant first was indirectly discriminatory since it meant in practice that a higher proportion of women workers were made redundant.

Redundancy

Employers cannot offer different redundancy pay packages to men and women. Nor can they select for redundancy on discriminatory grounds, for example, by choosing women over men or by allowing redundancies to fall in areas that are predominately female without justification. However, they do have the right to set redundancy pay based on the person’s earnings at the date of the redundancy. This means that where workers have shifted from full-time to part-time work and are then made redundant, it is lawful for all of their years of service to be assessed on the lower part-time rate of pay. And the fact that more women lose out through this law is not relevant. In the case of Barry v Midland Bank [1999] IRLR 581, the House of Lords ruled that, despite the fact that it was indirectly discriminatory, the employer had good grounds for the policy.

In addition, there are two groups of employees who have a special protected status in cases of redundancy. They are disabled employees and employees who are pregnant or on maternity leave. Employees in either of these categories must be offered alternative employment, if there is any, if their existing jobs are to be made redundant. In the case of Kent CC v Mingo [2000] IRLR 90, the EAT held that the obligation to make reasonable adjustments (see Chapter 5) extended to a requirement to consider disabled employees first for redeployment in cases of redundancy. In the case of Conoco v Booth EAT/83/00 it was held that employers should prove to the satisfaction of the tribunal, that there was no alternative employment at the time of the redundancy or within a reasonably acceptable period into the future. A lack of such proof would lead to a finding of discrimination.

However, there is no obligation to “red circle” (protect) a disabled employee’s terms and conditions. Thus if the alternative employment is on a lower rate of pay and the employee accepts it, the employer does not have to maintain the terms and conditions applying to the previous post (British Gas Services v McCaull [2001] IRLR 60). Nor is there a requirement on the employer to dismiss other employees to make way for a disabled employee whose job has been made redundant.

There are other obligations on employers where redundancies affect disabled employees. In the case of Berry v GB Electronics EAT/0882/00 the employer was held to have discriminated against Mr Berry, a profoundly deaf employee, by calling him into a meeting to announce his impending redundancy without having made arrangements for a signer to be present.

Where employees volunteer for redundancies, representatives need to be sure that they are not volunteering just because they believe that, due to discrimination, they will not get a fair chance at the available jobs. In the case of Derby Specialist Fabrication v Burton [2001] IRLR 69, the EAT held that an employee who had chosen to volunteer for redundancy for that reason could take a constructive dismissal claim based on discrimination law.

Retirement ages

At the moment, an employer can force an employee to retire at its normal retirement age (65 or above), and (provided set procedures are followed) be exempted from a claim of unfair dismissal/age discrimination: Para 8, Schedule 9, Equality Act 2010 (EA 10).

Maintaining a mandatory retirement age is controversial. The membership organisation Heyday, (formed by the charity Age Concern, now Age UK) challenged the UK government’s introduction of the default retirement age in the courts:

In Incorporated Trustees of the National Council on Ageing v Secretary of State for Trade and Industry C-388/07 the ECJ decided that a mandatory retirement age is capable of being justified (i.e. if in pursuit of certain social objectives, such as tackling youth unemployment). The issue of whether having a mandatory age in the UK is a proportionate means of achieving a legitimate aim was referred back to the High Court.

The High Court found the introduction of a retirement age (in 2006) to be justified on the grounds of maintaining confidence in the labour market, the need for workforce planning and to avoid an adverse impact on the provision of pensions and workplace benefits. The High Court was less certain about the justifiability of imposing a default retirement age of 65 rather than 70. It said that, had it been adopted for the first time in 2009, or had the government not committed to an imminent review of the appropriate retirement age, it would have found that the selection of the age of 65 was not proportionate: R (on the application of Age UK) v Secretary of State for Business, Innovation & Skills (Equality and Human Rights Commission — intervenor) [2009] EWHC 2336 (Admin).

In any event, there is now strong cross-party support for the withdrawal of the mandatory retirement age. The coalition government has reaffirmed its commitment to remove the mandatory retirement age and this is expected to occur in October 2011.

However, for the time being, employers can still lawfully force individuals to retire at the mandatory retirement age.

What if the employer doesn’t have a set retirement age? The following example is taken from the Equality and Human Rights Commission’s draft Code of Practice on Employment:

An employer does not have to retire someone at its retirement age — if the employee wishes it, the employer can exercise its discretion and extend the employment. If the employee wishes to carry on working after his or her normal retirement age, s/he can formally request to carry on working. The employer has, under Schedule 6 Employment Equality (Age) Regulations 2006, a duty to:

• give an individual who is due to retire six to 12 months’ notice that s/he is due to retire;

• tell an individual who is due to retire that s/he has a right to request to carry on working;

• consider (within a reasonable period) an individual’s request to carry on working. As long as the employer has given the employee the correct amount of notice under the regulations, the employee’s request must be made within three to six months of his or her retirement date. It must state how long the employee wants to continue working;

• hold a meeting with the employee, consider his or her request, and give written notification of any decision;

• allow an employee to appeal if his or her request is not met; and

• hear the employee’s appeal as soon as reasonably practicable and give written notification to the individual of the outcome.

Although retiring an individual earlier than the age of 65 will be discriminatory on the grounds of age, an employer may be able to escape liability by objectively justifying its actions: section 13(2) of the EA 10. An employer’s decision may (in exceptional circumstances) be in pursuit of a legitimate aim (the first test for objective justification) if, for example, it is acting for health and safety reasons. However, whether the employer’s actions are proportionate (the second test) will depend on whether an appropriate balance has been struck between the discriminatory action and the necessity of the aim.

However, it is important to note that the default retirement age of 65 is to be phased out during 2011 (a change that is currently being consulted on). Specifically, from 6 April 2011 employers will no longer be able to issue retirement notices to employees (correspondingly the right to request to work beyond 65 will cease). However, until 1 October 2011 (provided that notifications of retirement are issued to employees before 6 April 2011) employers will still be able to retire those staff.

As of 1 October 2011 there will no longer be an exemption for employers from the risk of unfair dismissal claims following retiring someone. Also, the dismissal may be discriminatory on the grounds of age, unless the employer can show that it was objectively justified.

Employers dismissing employees need to identify which of the potentially fair reasons in the Employment Rights Act 1996 — capability, conduct, redundancy, illegality, some other substantial reason — they are deploying. The number of dismissals of older workers on the grounds of capability and so on may well therefore rise substantially. Reps should be aware of this likelihood and should scrutinise dismissals of older workers particularly carefully.

Former employees

Discrimination laws cover former employees if a previous employer discriminates against them, for example by refusing a reference. Claims by former employees are taken as victimisation claims (see Chapter 4).