6. Discrimination

The Equality Act 2010 came into force in October 2010, consolidating and harmonising anti-discrimination law in the UK in a single source. However, 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 Supreme Court) held that the fact that the employer treated Mr Zafar, a black employee, unfavourably did not on its own 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.

An individual may well be able to bring a claim, even if they don't consider themselves to be particularly old or young. Specifically, where someone has been subjected to less favourable treatment on the grounds of age, whether they are old or young may be determined by reference to the relative age of their colleagues.

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 Code of Practice on Employment (EHRC Code):

Similarly, an individual may be able to bring a claim, even if they do not 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

• depression.

In DLA v Piper (UKEAT/0203/09), the EAT indicated that while "clinical depression" will almost always be a disability, "reactive depression", in the form of anxiety, stress and low mood" suffered in response to adverse circumstances such as problems at work, is less likely to qualify as a disability, although each case will always be examined on its own individual facts. In practice, the requirement for a condition to be "long-term" (i.e. lasting for at least twelve months) may eliminate many cases of reactive depression from the scope of the definition.

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: http://odi.dwp.gov.uk

Guidance on the definition of disability came into force in 2011 and can be found at: http://odi.dwp.gov.uk/docs/wor/new/ea-guide.pdf.

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 Code of Practice on Employment:

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 reassignment having been concluded, were 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 Code of Practice on Employment:

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 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;

• 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 Code of Practice on Employment 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:

While female workers can receive preferential treatment to male workers if it is on the basis of their pregnancy/maternity, any preferential treatment must be no more than is necessary or proportionate to eliminate the disadvantage caused by being pregnant or on maternity leave. An important recent case which established this principle, Eversheds Legal Services Limited v de Belin [2011] UKEAT0352, is discussed in Chapter 11: Discrimination and selection for redundancy.

It is important for reps to ensure employers do not overstate the importance of this case. In particular, note that this case makes no difference to the special statutory right of a woman made redundant while on maternity leave to be offered any suitable available vacancy (see Chapter 11: Alternative work).

On its own, it is not sex discrimination to conduct disciplinary proceedings against a woman during her maternity leave, even though it means that she is less able to prepare because she is caring for her baby (Chief Constable of Hampshire Constabulary v Haque UKEAT/0483/10). However, employers should not go ahead with a disciplinary hearing in the absence of an employee where this is due to a pregnancy-related illness (Abbey National v Formoso [1999] IRLR 222).

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, ethnicity 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, ethnicity 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 in 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 Code of Practice on Employment:

There are 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.

A similar conclusion on the interaction between different anti-discrimination rights was reached in the following case:

Gender

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 relatively small number 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

Section 77 of the EA 10 prohibits employers enforcing contractual terms that prevent workers discussing their pay, as long as the purpose of those discussions is to establish whether there is evidence that the employer is unlawfully discriminating in relation to pay. Clauses that ban discussions of pay that take place for any other reason are still lawful.

There is as yet no obligation on all employers to report on the gender pay gap in their workplace. The coalition government has indicated that it does not intend to bring into force section 78 of the EA 10 which would have provided for this. Instead it favours a voluntary scheme, as long as 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.

"Outing" a gay person in the workplace against his or her wishes is unlawful discrimination. However, innocently revealing an individual's sexuality in the context of ordinary workplace conversation, in circumstances where the claimant had already been open about his sexuality when working in another office for the same employer, was not unlawful discrimination. The colleague would have been justified in assuming that since he had been open about their sexuality at the last workplace, he would be comfortable with the information being shared in the new one (Grant v HM Land Registry [2011] EWCA Civ 769).

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.

Job applicants are also covered. Equally, even where the person carrying out discriminatory behaviour is not an employee (eg an agency worker), the employer can still be held responsible:

Public Sector Equality Duty

When taking decisions, public authorities must 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 extended this duty to age, gender reassignment, religion/belief and sexual orientation. The government is reviewing the Public Sector Equality Duty as part of its Red Tape Challenge programme.

There is no requirement on public authorities to take into account marriage/civil partnership considerations. Also, the government has stated 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 be removed from the Act.

The Equality and Human Rights Commission is responsible for the code of practice on the public sector equality duty which can be accessed at: www.equalityhumanrights.com/legal-and-policy/equality-act/equality-act-codes-of-practice/

The TUC has produced helpful guidance which is available at: www.tuc.org.uk/equality/tuc-20159-f0.pdf

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); and acts done for the purpose of safeguarding national security.

Illegal contracts

The law in relation to illegal contracts is set out in Chapter 3. As a general rule, an employer cannot escape responsibility for acts of discrimination by pointing to the fact that the contract is illegal.

In 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.

However, if the illegality is entirely due to the employee's actions, a tribunal may remove their right to bring a discrimination claim. In 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.

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. With the exception of age discrimination, an employer is not allowed to argue that he is justified in carrying out direct discrimination against anybody who is protected by the legislation.

Indirect discrimination is where an employer applies a provision, criterion or practice which is discriminatory in relation to a protected characteristic - this type of discrimination may be exempt from penalty if it can be "justified". Discrimination can also be by way of harassment or victimisation.

In most cases a worker will be pursuing either a direct or an indirect discrimination claim. But there are occasions when both claims may be present. In the case of Jaffrey v Department of Environment, Transport and the Regions [2002] IRLR 688, the EAT confirmed 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 can only be justified in two circumstances. Firstly, in relation to age discrimination claims, and secondly for claims by a non-disabled person that a disabled person has been treated more favourably.

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 Code of Practice on Employment:

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) EA 10.

Other than in relation to claims of racial segregation (i.e. where people are kept apart based on their race), and in relation to pregnancy/maternity claims, the employee will need a comparator - that is s/he 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) 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) EA 10. (No comparator is necessary for the new claim of "discrimination arising from disability" which is different from claims for disability discrimination and indirect disability discrimination).

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 proceed with his claim.

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. 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 perceptive discrimination was already unlawful under age, race, religion/belief and sexual orientation anti-discrimination legislation, the Equality Act 2010 expressly extended 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 because 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 the Equality Act 2010 added 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 meaning of the phrase "something arising in consequence of disability" covers 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).

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.

What the concept of "disadvantage" covers is not defined in the EA 10.

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 Code of Practice on Employment:

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. Also, some statistics are provided on a national and regional basis by the Office of National Statistics (www.statistics.gov.uk).

A claim of indirect discrimination can be brought in the employment tribunal. The employer has a defence if it 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. 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).

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. See Chapter 3: References and employment checks.

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, suggested that (probably just substantial) 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.

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.

Disciplinary, capability and grievance procedures

Employers must comply with non-discrimination legislation when applying disciplinary, capability and grievance procedures. Examples of what would amount to discrimination in such 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;

• an employee's disclosure at a capability meeting that she was menopausal required the employer to seek medical evidence of the impact of this on her work. Failing to do so, and omitting to treat her condition in the same way as other medical conditions, was direct sex discrimination (Merchant v British Telecom plc ET 1401305/11); 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 Chapter 10: Dismissal, and 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 equality law. Employees can bring a claim for discriminatory dismissal from the first day of their employment. There is no service requirement. Even where employees have enough service to claim unfair dismissal or redundancy, there are often good reasons for also adding claims under discrimination law if an employee believes the dismissal was for a discriminatory reason.

Compensation in discrimination claims is unlimited, whereas in dismissal cases it is set at a maximum of £72,300 (as of 1 February 2012). However, typical awards are much lower than this. The overall median award for a discrimination claim in 2010-11 was £8,000.

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. One clear advantage of a claim of discrimination is that you can claim against both the employing organisation and individual perpetrators of discrimination. This can often help prompt a settlement.

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 must not use discriminatory criteria when carrying out redundancy selection or allocating redundancy packages. The law in relation to discrimination as it applies to redundancy is set out, along with the most recent case law, in Chapter 11: Selecting for Redundancy.

Retirement ages

Up until 6 April 2011 an employer could lawfully give its employees who were between 12 and six months away from reaching their normal retirement age (generally 65), notice that they were to be retired. The law changed on 6 April 2011 and the default retirement age of 65 was phased out. Specifically, employers can no longer issue retirement notices to employees (correspondingly the right to request to work beyond 65 ceases). However, until 1 October 2011 (provided that notifications of retirement were issued to employees before 6 April 2011) employers were still able to retire those staff.

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.

Harassment

Harassment at work is a complex and difficult issue that many union reps will have to deal with. The most common form of harassment is where a junior worker is harassed by a more senior one. But reps may also be faced with cases of harassment by colleagues at the same grade. These types of cases can be particularly difficult to deal with, especially where both the harasser and the harassed are union members.

Most unions will have a policy for dealing with harassment and reps should familiarise themselves with it. The case of FBU v Frazer [1998] IRLR 697, makes it clear that a union can lawfully refuse legal representation and assistance in a disciplinary hearing to a member accused of sexual harassment, without being in breach of discrimination law.

Most workplace disciplinary and grievance procedures make it clear that harassment is a disciplinary offence. Some workplaces have separate procedures for dealing with harassment, and this is recommended by the Equality and Human Rights Commission (EHRC).

Defining harassment

Section 26(1) of the Equality Act 2010 (EA 10) defines harassment as unwanted conduct, which has the purpose or effect of:

• violating the employee's dignity; or

• creating an intimidating, hostile, degrading, humiliating or offensive environment for that employee; provided that it could reasonably be considered to have that effect.

Section 26 of the EA 10 makes it clear that, provided the conduct is unwanted and violates the employee's dignity (as the employee sees it), it is unlawful, unless it would not reasonably be assumed that an employee could be offended by the action complained of. This means that the test is not entirely dependent on how the individual experiencing the harassment sees it, and how a "reasonable" person would view it is relevant. Even aside from the legislative position, courts have held for some time that harassment has to be seen from the point of view of the person being harassed, as indicated in the following example:

There may be cases where there has been a period without harassment after an employee's complaint and then one single act of harassment as in the following case:

In most cases the harassment will continue over a period of time before eventually the person experiencing it can no longer put up with it and complains. But even single acts of harassment can be caught by the legislation. It is no defence to say that something was just a "one off" event. A single act of verbal racial harassment can be enough to establish a complaint. In the case of Insitu Cleaning v Heads [1995] IRLR 4, a single offensive comment to an employee, by the son of one of the senior managers, was sufficiently serious to amount to sexual harassment.

However, for discrimination law purposes, it is necessary to differentiate between harassment linked to a protected characteristic and generally abusive behaviour, as only the former comes within the definition (although bullying and abusive behaviour may amount to a breach of contract). A racist remark that is not directly targeted at an individual may or may not amount to harassment, the issue is whether the employee making the complaint has evidence to show that she had been upset by the remark at the time (Thomas and Comsoft v Robinson [2003] IRLR 7).

Under section 26(2) of the EA 10, sexual harassment is also expressly outlawed. Specifically, conduct of a sexual nature that meets the definition of harassment under section 26(1) of the EA 10 will be unlawful - that is having the effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

The conduct complained of may be the subject of a complaint to a tribunal even though it is not because of a protected characteristic, but is simply related to a protected characteristic. The following example is taken from the Equality and Human Rights Commission's Code of Practice on Employment (EHRC Code):

Also, under section 26(3)(c) of the EA 10, unlawful harassment occurs where an individual (in response to harassment) irrespective of whether s/he rejected or submitted to the conduct, then suffers further harassment:

It will be harder to win a harassment case where there is evidence that the employee voluntarily took part in activities that could be described as harassment. In one case (Jones v ICS Cleaning Services EAT/811/99), this was enough to defeat the claim. However, because an individual is prepared to accept a level of banter from one person, it does not mean that they cannot claim harassment because the same banter from another employee is unwanted.

Most cases of harassment are dealt with using discrimination law, but there are circumstances where it may be possible to use other legal avenues, for example, breach of contract as in the following case:

For useful information on drawing up policies with employers, see the EHRC Code.

Employer liability for harassment

An employer is liable for harassment that occurs at work if no steps were taken to prevent it, or no action was taken once it was brought to the employer's attention. It is no defence for employers simply to suggest that they are not liable because they had not condoned or authorised the action complained of. The leading case on this issue is Jones v Tower Boot [1997] IRLR 168:

Also, where an employer tries to take advantage of a statutory defence to unlawful discrimination it can only point to steps it took to prevent a discriminatory act before that act took place. Steps taken after the discrimination has occurred will be irrelevant: Fox v Ocean City Recruitment Limited (UKEAT/0035/11/JOJ).

Employers can be challenged for having failed in their duty of care to the employee if harassment occurs at work. Every employer has an implied duty of care for its employees' health and welfare, and failing to provide a workplace free from harassment is a clear breach of that duty. In the case of Canniffe v East Riding of Yorkshire Council [2000] IRLR 555, the EAT held that Denise Canniffe did have a valid claim against her employers. She had brought the harassment to their attention and, although some steps had been taken, they were insufficient. It was the duty of the employer to see whether there were any further steps they could reasonably have taken, even if the harassment might still have occurred had they taken them.

Normally an employer will not be liable for harassment which is insufficiently connected to work, although harassment which occurs at a Christmas party or on a work outing is capable of being the subject of a complaint. Where the harasser is also an employee and, for example, the employer fails to investigate the complaint or delays the investigation, there may be grounds for taking a claim against the employer. The case of Coyne v the Home Office [2000] IRLR 838, makes it clear that in cases where harassment is alleged the employer has a responsibility to employees to deal with the complaint, even where the circumstances mean that they would not be responsible for the harassment itself.

Third party harassment

This is where a third party (such as a customer of, or a supplier to the employer) harasses an employee (section 40 of the Equality Act 2010). Under this section employees have a claim against their employer where the harassment occurs on three occasions, and where the employer - having been made aware that the harassment has occurred - fails to take reasonable steps, such as barring the harasser from the employer's premises, to prevent a recurrence.

Prior to the implementation of the Equality Act 2010, it was only third party harassment on the grounds of sex that was unlawful. However, since 1 October 2010, harassment on the grounds of age, disability, gender reassignment, race, religion/belief and sexual orientation has been unlawful.

Despite bringing this section into force, the coalition government is consulting about scrapping the right of employees to bring claims against their employer for third party harassment. The consultation ends in August 2012.

The employer's duty to act

Whenever there is a claim of harassment, it is the duty of the employer to properly investigate the claim as quickly as possible. It is also important to protect the individual making the claim against further harassment during the period of the investigation.

Often the employer may need to suspend a co-worker accused of harassment on full pay - depending on what any contractual disciplinary or harassment procedure states. However, the alleged harasser is entitled to be treated fairly. Automatically suspending someone is likely to be unlawful (Crawford v Suffolk Mental Health Partnership [2012] EWCA Civ 138).

In Gogay v Hertfordshire CC [2000] IRLR 703, Julie Gogay successfully claimed that her suspension was a breach of mutual trust and confidence. She had been suspended over what turned out to be a completely unsubstantiated allegation of abuse and suffered clinical depression as a result. She successfully sued her employers for breach of their duty of care.

The decision in Mezey v SW London and St George's Mental Health NHS Trust [2007] EWCA Civ 106, confirms this. Even where the contract permits it, there is stigma attached to being on suspension and therefore suspending someone cannot be considered "a neutral act".

A rep needing to argue against an "automatic" or lengthy suspension should look at the comments made by Lord Justice Elias of the Court of Appeal at the end of his judgment in the Crawford case, where he speaks out against this practice and draws attention to the long-term damage it can do to mental health and wellbeing.

Other legislation

Harassment at work can also be dealt with under the Protection from Harassment Act 1997. This Act was initiated in an attempt to curb stalking, but the House of Lords (now Supreme Court) has held that it can apply to employment situations (Majrowski v Guy's & St Thomas' NHS Trust [2006] UKHL 34).

In practice, the Act is more likely to be used in serious cases of bullying and harassment which are not protected by any of the discrimination laws. This is because there are few legal remedies in those cases. For example, where the contractual status of a worker is unclear -whether they are self-employed or a worker or employee - it might be appropriate to use the Act, since it does not depend on there being a contractual relationship of employment. Also, it could be of use where the normal time limit of three months for lodging a claim in an employment tribunal has passed, but less than six years have elapsed. Clearly representatives will need sound legal advice before considering pursuing cases under the 1997 Act.

To succeed, the employee must show that there was a course of oppressive conduct directed at them, which was deliberately intended to cause alarm or distress.

In Conn v Council of City of Sunderland [2007] EWCA Civ 1492, an employee refused to inform on colleagues whom the manager suspected of finishing work early. In response, the manager behaved aggressively and on one occasion threatened violence. The Court of Appeal noted that for the Protection from Harassment Act 1997 to be activated, the acts complained of would need to be considered sufficiently serious as to warrant a criminal sanction. The Court of Appeal decided that while the acts complained of in this case were unattractive they did not cross the boundary into being oppressive as multiple acts were needed for this definition to apply.

Victimisation

The term victimisation does not, as is commonly thought, refer to general poor treatment but has a specific definition. Under section 27 of the Equality Act 2010 (EA 10) it is unlawful for an employer to victimise someone (from existing or former staff) because they have made complaints of discrimination. This is the case irrespective of whether the complaints themselves are upheld.

Discrimination by way of victimisation is where someone is treated less favourably because they have:

• brought proceedings on the grounds of discrimination - section 27(2)(a) of the EA 10;

• given evidence or information connected with proceedings brought by someone else - section 27(2)(a) of the EA 10;

• done anything else over a discrimination complaint - section 27(2)(a) of the EA 10;

• alleged a breach of discrimination law, or where it is known that they intend to do so - section 27(2)(a) of the EA 10; or

• made or sought a "relevant pay disclosure" to, or from, a colleague (for example, trying to find out salary information with a view to bringing an equal pay claim in the tribunal) - section 77 of the EA 10.

The following example is taken from the Equality and Human Rights Commission's Code of Practice on Employment:

Both existing and past employers can be liable if they victimise those who have alleged discrimination. Victimisation while in work is most likely to involve workers being denied promotion, subjected to a poor assessment or not being given bonuses to which they would have expected to have an entitlement.

The legal duty on the employer not to discriminate does not end just because the employment has ended - it continues in relation to any benefits arising from the employment relationship. What this means in practice is that if the employer would normally act in a certain way towards ex-employees, then all must expect the same treatment, regardless of whether or not they had complained about discrimination while in the job. For example, if employers normally provide ex-employees with references, they must provide them for all, including those who have raised discrimination issues. Other examples of discrimination by way of victimisation include:

• special monitoring of the employee's attendance record following his complaint about race discrimination (Lindsay v Alliance & Leicester [2000] ICR 1234);

• giving employees unsatisfactory references because they had taken discrimination claims;

• not allowing an ex-employee access to the workplace so that he could pick up some business cards, because the employee had taken (but lost) a discrimination claim (Jones v 3M Healthcare [2003] IRLR 33 - joined case with Rhys-Harper v Relaxion Group [2003] IRLR 484);

• refusing an employee the right to take a small amount of time off to meet with a Racial Advisory Council after he had claimed race discrimination when, in other circumstances, employees would have been allowed time off (TNT Express Worldwide v Brown [2001] ICR 182); and

• refusing to pay to an individual compensation awarded by a tribunal following a successful discrimination claim (Rank Nemo Ltd v Coutinho [2009] EWCA Civ 454).

Representatives need to monitor pay and benefits packages to assess whether these reveal evidence of victimisation. Members who have previously taken, or assisted in taking, discrimination claims should be told of their rights not to be victimised. When leaving their job, staff who are known to have raised issues of discrimination should similarly be informed of their rights. Employees should never be in the situation of not wanting to challenge discrimination for fear of future employer action against them.

A landmark ruling of the House of Lords (now Supreme Court) in the case of Nagarajan v LRT, held there could be circumstances where an employer genuinely believed that the reason for the less favourable treatment had nothing to do with the individual's previous discrimination claim. Nevertheless, where the evidence permitted the tribunal to infer that victimisation had been the motive it could do so. The facts were as follows:

The Nagarajan case is of wider importance. This is because it establishes that the tribunals can look beyond the reasons for less favourable treatment given to them by employers, to try to ascertain the real reasons for it.

The victimisation provisions will not apply where the allegation, evidence or information was false and not made in good faith. As long as the individual making the complaint or giving evidence is not doing it out of malice, they will have protection from victimisation.

Street v Derbyshire Unemployed Workers' Centre [2004] IRLR 687, a case under the whistleblowing provisions which are similar to those for discrimination law, gives some clues as to how the term "good faith" would be interpreted. The case concerned an employee who alleged financial impropriety. Her claims were investigated and the management committee held them to be "clearly unfounded and based on mischief making".

The Court of Appeal confirmed that a disclosure made purely out of personal antagonism was not a protected disclosure, even if the person making it genuinely believed it to be true. The motive for which a person does a particular act can, according to this ruling, "change its character from good to bad".

Proving a discrimination claim

Once a worker has established that s/he has suffered less favourable treatment, it is up to the employer to prove that there was no discriminatory reason for that treatment. This amounts to shifting the burden of proving the case from the employee to the employer. The law says that where the worker proves facts from which the tribunal could conclude "in the absence of an adequate explanation", that there has been less favourable treatment, the complaint will be upheld unless the employer proves that they did not discriminate.

The law makes it clear that the tribunal can conclude that there was discrimination if there is no acceptable reason for less favourable treatment. This is commonly referred to as the tribunal's ability to "infer" discrimination. The case that initially established this principle is that of King v The Great Britain-China Centre [1991] IRLR 513:

Since the King ruling, the courts have dealt with many other cases concerning the issue of inferring discrimination. These have resulted in a widening of the duty on the employer to prove there was no discrimination and greater powers on the tribunals to infer discrimination.

The most important decision has been that of the joined cases of Igen Ltd & others v Wong; Webster v Brunel University; Emezie v Emokpae [2005] EWCA 142 ([2005] IRLR 258). In those cases the Court of Appeal decided that once a claimant has shown that there could be discrimination, their claim will be upheld unless the employer can offer an adequate alternative explanation for the difference in treatment.

The Court also clarified that the employer must show that the treatment was "in no sense whatsoever" on grounds of sex, race or disability, rather than that being "not significantly influenced by" sex, race or disability.

The EAT's judgment in Barton v Investec Henderson [2003] IRLR 332 is also helpful. The EAT ruled that the clear tests are:

• for the worker to prove that discrimination (less favourable treatment) has taken place or, where the worker does not have sufficient evidence to prove it, where there is enough evidence for the tribunal to infer discrimination;

• once this has happened the employer has to prove, on the balance of probabilities, that there was no discrimination.

In an example of a case where the tribunal was able to infer discrimination from the facts, a worker showed that she had been paid her bonus late, had not been invited to an important social function and there was a delay in hearing an appeal.

All of these events took place after the worker had told her employer that she had a disability. That was enough for the tribunal to infer discrimination.

Other examples where tribunals have inferred discrimination are:

• being dismissed after asking for a pay increase on finding out that an employee of the opposite sex was getting more; and

• being told to attend a disciplinary hearing while off sick for stress (Rowden v Dutton Gregory [2002] ICR 971).

Dual discrimination

One important point to note, in cases where more than one form of discrimination is alleged, is that each has to be proved separately. In the case of The Law Society v Bahl [2003] IRLR 640, the employee alleged race and sex discrimination. The tribunal could not infer from the facts that either had occurred and therefore could not, looking at both claims together, infer that discrimination must have been present.

Section 14(1) of the Equality Act 2010 (EA 10) was intended to enable someone to bring a claim where they suffered less favourable treatment than another on the basis of two protected characteristics. For example, this section was designed to enable a candidate to claim if she were rejected for a job both because she is of black ethnic origin and a woman.

However, the government announced in its March 2011 budget that it would not be bringing section 14 into force. Although this is a disappointment, bear in mind that an employee can still bring separate claims of discrimination to cover each of the protected grounds upon which they have suffered a detriment.

The questionnaire procedure

Because the law accepts that sometimes it is difficult for a worker to get enough evidence to prove that there has been less favourable treatment, a "questionnaire procedure" exists under the Equality Act 2010 (Obtaining Information) Order 2010 (EAOI 10). This gives workers the legal right to serve questions on their employer to try and obtain answers that might help them decide whether or not there has been less favourable treatment, usually before a claim has been lodged or within 28 days of this occurring. A copy of the questionnaire specified by EAOI 10 is available at: www.legislation.gov.uk/uksi/2010/2194/schedule/1/made.

Workers can use this to get information on what terms and conditions other workers have. If the employer does not reply, or if their replies are inadequate in the view of the court or tribunal, it may draw adverse inferences, including an inference that discrimination did take place, if appropriate.

However, the government wants to withdraw the questionnaire procedure, arguing that doing so will not prevent employers and employees from corresponding. The issue is currently out for consultation ending on 7 August 2012.

Disability discrimination

An individual wanting to bring a claim of disability discrimination must first show that they are disabled. Section 6 of the Equality Act 2010 (EA 10) defines this as a person with a physical or mental impairment that has a substantial and long-term adverse impact on that individual's ability to carry out normal day-to-day activities.

In most cases the worker will produce medical evidence in support of the claim that s/he is disabled. The tribunal will not normally take into account what has caused the disability once it is shown to come within the definition. Although the legislation specifically excludes alcohol and drug addiction from the definition of a disability, a person suffering from clinical depression brought on by addiction to alcohol can still claim protection under the EA 10 (Hutchinson 3G v Mason UKEAT/0369/03).

The test is whether the disability has a substantial impact. This is for the tribunal to assess, it is not determined by a medical assessment.

For disability discrimination claims to succeed the worker needs to show, not only that there is a disability, but that it is "long-term". Long-term means an effect that has lasted or is likely to last for a year or more.

Just because your GP tells a tribunal in a medical report that you are disabled for the purposes of the EA 2010, this does not mean that you necessarily meet the requirements of the legislation. A tribunal will still want to examine the medical evidence you provide to satisfy itself that you met the requirements of the statutory test on the date the discrimination took place (for example, on the date of a discriminatory dismissal).

To succeed, you must be able to produce persuasive evidence that you were disabled on the date of the discriminatory act. If you cannot do this, the claim will fail. The fact that you were disabled by the date of the tribunal hearing itself is irrelevant

This case also underscores the vital importance of getting good medical evidence as early as possible in the process. Unless the employer admits disability, it will be up to the claimant to prove it to the tribunal.

An individual does not have to be disabled for as long as a year to claim, provided that at the date the discriminatory act took place, the disability was likely to last at least a year or is recurring (Greenwood v BA [1999] IRLR 600). The effect of any medication or other treatment is ignored when assessing the effects of an impairment.

If an impairment is recurring, it will be regarded as "long-term" if the substantial adverse effect is likely to recur. For example, someone with rheumatoid arthritis may have adverse effects for a few weeks; if the effects then stop but are likely to recur more than 12 months after the first occurrence, they are long-term. The focus is on whether the substantial adverse effect, rather than the impairment itself, is likely to recur (Swift v Chief Constable of Wiltshire Constabulary EAT/484/03 ([2004] IRLR 540)).

In SCA Packaging Ltd v Boyle and Equality and Human Rights Commission (Intervener) [2009] IRLR 746, the House of Lords (now Supreme Court) considered the meaning of "likely" in disability discrimination law:

For more detailed guidelines, reps can refer to the new guidance on the definition of disability published by the Office for Disability Issues (part of the DWP) in 2011. You can find it at: http://odi.dwp.gov.uk/docs/wor/new/ea-guide.pdf

Guidance also appears on the website of the Equality and Human Rights Commission.

Reasonable adjustment

Once it is established that a person is disabled, the employer (including a prospective or ex-employer) is under a duty to make reasonable adjustments to accommodate their disability. Specifically:

• where a provision, criterion or practice puts a disabled person at a substantial disadvantage, an employer must take such steps as are reasonable to avoid the substantial disadvantage: section 20(3) of the Equality Act 2010 (EA 10) - for example re-allocating duties, altering hours, transferring a newly disabled person (or a person whose disability has worsened) into a more suitable existing vacancy;

• where a disabled person would, but for the provision of an auxiliary aid such as adapted telephone or computer equipment, text to speech software, a sign language interpreter, be at a substantial disadvantage, an employer must take such steps as are reasonable to provide the aid - for example, providing information in an accessible format: section 20(5) of the EA 10; and

• where a physical feature (such as steps, emergency escape routes, signs and so on) puts a disabled person at a substantial disadvantage, an employer must take such steps as are reasonable to avoid the disadvantage: section 20(4) of the EA 10 - for example, inviting the disabled worker to work in a ground floor office or from home, modifying a building for a wheelchair user.

The disadvantage must be substantial - meaning more than minor or trivial: section 212(1) of the EA 10. The employer - rather than the employee - is responsible for suggesting what adjustments would be suitable (British Midland Airways Ltd v Hamed UKEAT/0292/10/RN) and an employer that does not consider making any adjustments is very vulnerable to a disability discrimination claim.

The duty to make reasonable adjustments can even require an employer to treat a disabled worker more favourably than other staff (Archibald v Fife Council [2004] UKHL 32 (see Chapter 11: Discrimination and redundancy).

However, treating a disabled employee more favourably than non-disabled staff by paying extra sick pay will rarely be a reasonable adjustment (O'Hanlon v HM Revenue and Customs [2007] EWCA Civ 283, RBS v Ashton UKEAT/0306/10). The only time when paying extra sick pay is likely to be a reasonable adjustment is where the disabled person's absence results from a failure to make the adjustments that would have enabled them to return to work (Nottinghamshire County Court v Meikle [2004] IRLR 70). This should not discourage reps from trying to negotiate enhanced sickness absence policies for disabled workers.

Just because an employer has made some reasonable adjustments, this does not mean that they are exempted from making further reasonable adjustments. For example:

There is no requirement to do something that would not meet the test of reasonableness. Nor does the duty to make reasonable adjustments extend to requiring employers to help an employee to access ill-health retirement as an alternative to dismissal (Mylott v Tameside Hospital NHS Foundation Trust UKEAT/0399/10/DM).

However, if an adjustment is reasonable, an employer must make it. What is reasonable will depend on all the circumstances of the situation.

Employers are allowed to take into account factors such as cost, or the impact of a proposed adjustment on the health and safety of others to establish whether it is "reasonable". In the case of Cordell v The Foreign and Commonwealth Office UKEAT/0016/11/SM, the employer could withdraw the offer to a deaf person of a posting to Kazakhstan where the cost of a lip reader was £230,000 per year.

On cost, relevant issues as to what is reasonable include the size of the budget allocated for making reasonable adjustments; what the employer has spent in comparable situations; what other employers have chosen to spend; and any collective agreement on an appropriate level of expenditure. The employer will not be able to pass on the cost of making adjustments to the employee, unless there is an express agreement to the contrary.

A disabled person wishing to complain that his or her employer is guilty of disability discrimination need not compare his or her treatment with the treatment of a worker who is not disabled. In other words, cases of reasonable adjustment do not require claimants to identify comparators.

Finally, the employer might try to claim that it did not know, and could not reasonably be expected to know, that the individual was disabled (Schedule 8, para 20(1)). Whether an individual formally discloses to their employer that they are suffering from a disability (where it is not already obvious) may therefore be a significant factor. Although employees are entitled to keep their personal lives private, employers cannot escape liability for disability discrimination by not making reasonable enquiries. For example:

Employers' defences to discrimination claims

There are circumstances where an employer can escape liability for discriminatory treatment. There are three main defences:

• in cases of indirect discrimination, where the discriminatory (less favourable treatment) is proportionate and aimed at achieving a legitimate aim;

• where the less favourable treatment is to do with a genuine occupational qualification or requirement; or

• in disability discrimination claims, where the employer has made adjustments and there is nothing more that reasonably can be done.

Proportionate means

In cases of indirect discrimination (and discrimination on grounds of age) the employer is allowed to accept that an individual has experienced less favourable treatment, but argue that it was necessary to achieve a legitimate aim.

The first thing to note is that an employer can never justify direct discrimination (other than on the grounds of age). The law does not permit employers to treat someone less favourably purely because of who they are, so long as they fall within one of the groups protected by discrimination law.

The issue of whether or not an employer can defend the imposition of a "provision, criterion or practice" the outcome of which is to treat some workers less favourably, is only relevant to indirect discrimination claims.

Circumstances where the courts have accepted an employer's reasons for less favourable treatment include turning down a woman's request to work part-time because the job she was doing could only effectively be done full-time.

Service-related pay scales are another area where the different working patterns of men and women can potentially affect entitlement. In Cadman v HSE C-17/05, the ECJ held that, as a general rule, length of service is enough to objectively justify a difference in pay as long service goes "hand-in-hand" with experience, which generally enables a worker to perform his or her duties better. However, the ECJ did recognise that there were cases in which this general rule would not apply. It said this would be where the worker provides evidence giving rise to "serious doubts" that length of service goes hand-in-hand with experience and/or that experience enables the worker to perform his or her duties better.

In a subsequent case against the HSE, the Court of Appeal commented that the "serious doubts" test is not an additional hurdle for the claimant to cross. Rather it is a low test and simply operates as a preliminary filter to see whether the claimant is likely to be able to prove that in a particular case objective justification may be required:

Can cost considerations justify indirect discrimination?

As explained above, indirect discrimination (and direct discrimination on grounds of age) can be objectively justified as long as the employer can produce persuasive evidence that the discrimination is a reasonable way of achieving a "legitimate aim". However, there has been conflicting case law as to whether "cost" alone can be relied on by the employer to justify indirect (or direct age-related) discrimination.

The most recent cases suggest that arguments based only on "cost" considerations cannot be used to justify discrimination (Cross v British Airways plc [2005] IRLR 423)). However, the reasoning adopted by tribunals often appears artificial and contrived, as they search for something to sit alongside "cost" to justify what would otherwise be unlawful discrimination.

In Woodcock v Cumbria Primary Care Trust [2012] EWCA Civ 330, an NHS Trust cut short a period of consultation and brought the employment of its Chief Executive to an immediate end to avoid him reaching his 50th birthday. This was because reaching 50 would have triggered early retirement rights valued at around £500,000. The Court of Appeal confirmed that, although discriminatory on grounds of age, the decision to curtail the consultation process could be objectively justified in this case because the Trust had the "legitimate aim" of making Mr Woodcock redundant rather than letting him claim early retirement. The tribunal was influenced by evidence that the consultation process had been dragging on over several weeks through nobody's fault, and would not have changed the eventual outcome.

Similarly, in HM Land Registry v Benson (UKEAT/0197/11), a decision to offer a voluntary severance package to employees who cost the least to release under the terms of the Civil Service Compensation Scheme was judged objectively justifiable, even though it discriminated against employees aged between 50 to 54, who had the highest level of entitlement under the terms of the scheme (including the right to immediate pension without any discount for early receipt). Cost saving was undoubtedly the primary aim of the decision, but the EAT found that the Registry also wanted to fit a reduced workforce into smaller premises and to achieve a good mix of skills, experience and grades. These additional aims enabled the employer to justify its selection criteria even though they discriminated against workers aged between 50 and 54. See also Chapter 11: Redundancy selection.

Genuine occupational requirements

Under Part 1, Schedule 9 Equality Act 2010 (EA 10), employers can justify discrimination where there is a genuine occupational requirement (GOR) for the job. This affects people with any protected characteristic alleging direct and/or indirect discrimination. It cannot, however, be used as a defence in harassment and/or victimisation claims.

An example of a GOR reason might be where, for authenticity, a theatre wants to hire a man for a male role or wants a black actor to perform a black role. However, the GOR exemption is always narrowly defined. In the case of Etam v Rowan [1989] IRLR 150, the EAT did not accept that it was necessary to employ a woman in a clothes shop just because a small part of the duties involved entering the changing rooms.

Positive action

In addition to it being unlawful to discriminate against workers on the basis of protected characteristics, it is also unlawful to positively discriminate in favour of protected groups, other than in relation to disabled people . However, under section 158 of the Equality Act 2010 (EA 10) employers have the option to take "positive action".

Positive action is where employers take steps to benefit a particular protected group (or groups) that does not involve treating another group less favourably. Lawful positive action could be where, in addition to advertising a post in the national press, an employer also advertises in a publication such as The Voice (a magazine particularly aimed at the African-Caribbean community).

Specifically, an employer may be able to take positive action where it reasonably thinks that people in a protected group are at a disadvantage which is connected to their protected characteristic, have different needs to those of people not from their protected group, or have disproportionately low participation in an activity compared to those not from a protected group.

Any action that an employer does take can only be in order to enable or encourage people with a protected characteristic to overcome or minimise that disadvantage, meet the protected group's needs, or to enable or encourage people who share the protected characteristic to participate in that activity.

The kind of steps that an employer might be encouraged to take are illustrated in the following example - taken from the Equality and Human Rights Commission's Code of Practice on Employment (EHRC Code):

However, employers can only take action where participation by a protected group is disproportionately low: section 158(2) of the EA 10. A number of factors will determine what constitutes disproportionately low participation, as the following example illustrates:

Under section 158(2) of the EA 10, the steps that the employer takes must also be proportionate. In other words the employer should be encouraged to take appropriate steps which are reasonably necessary to achieve the aim.

However, employers are not so restricted when it comes to disabled people. Specifically, under section 13(3) of the EA 10 it is lawful for an employer to treat a disabled person more favourably than a non-disabled person.

For example, employers can be encouraged to offer a guaranteed interview for a post to all disabled candidates who meet the minimum criteria.

Section 159 of the EA 10, brought into force on 1 April 2011, also contains some important provisions. It allows (but does not compel) employers, where candidates for a job are equally qualified, to select an individual for that post on the basis that s/he is from a disadvantaged group (or where the participation of that disadvantaged group is disproportionately low).

Equal pay

It is unlawful for an employer to discriminate on the grounds of sex, which includes paying people of one sex less than the other for comparable work. Discrimination in pay and conditions was covered by the Equal Pay Act 1970 (EPA) and is now covered by Chapter 3 of the Equality Act 2010 (EA 10) - with the sex discrimination provisions of the Equality Act 2010 prohibiting other forms of unequal treatment on grounds of sex.

Section 66 of the EA 10 states that a sex equality clause is presumed to operate in every employment contract, giving women the right to equal pay with men and vice versa. Either a man or a woman can bring a claim under the EA 10. To bring a claim with someone of the opposite sex whose job is comparable to yours, you have to show that there is an appreciable difference in pay between the two jobs and that the reason for this difference is the sex of the workers.

In the past, many people didn't realise that they were being unlawfully underpaid relative to their colleagues of the opposite gender. This was partly because some employers routinely sought to impose a blanket ban on employees discussing how much they earned. However, under section 77, EA 2010 (brought into force in October 2010) employees cannot be prevented from disclosing details of their pay to either colleagues or trade union representatives where that disclosure is to establish if there is evidence that an employer is unlawfully discriminating in relation to pay.

Under the planned section 78, EA 10, organisations employing 250 or more individuals, were to be required to publish information on the gender pay gap amongst their employees. However, the coalition government has stated that it would prefer not to bring this section into force. Instead, in its consultation Modern workplaces, the government proposed that where an employer has been held to have breached the equal pay provisions of the Equality Act 2010, it will be required to undertake a pay audit - the results of which will be published.

In the case of MOD v Armstrong ([2004] IRLR 672), the EAT made it clear that the "fundamental question is whether there is a causative link between the applicant's sex and the fact that she is paid less than the true value of her job as reflected in the pay of her named comparator". You have to establish that there is a case of pay discrimination based on a sex difference - just pointing to the fact that someone earns more than you is not enough (Parliamentary Commissioner for Administration v Fernandez ([2004] IRLR 22)).

Employees who think they may have grounds for an equal pay claim can use a questionnaire procedure to get information from their employer about pay and grading in the workplace. But they must ensure that they do not ask for information that goes beyond finding out about their comparators: in one case, where an employee asked for information about the pay of everyone on her pay band, the EAT held that employees on the same pay band or grade are not necessarily doing like work or work of equal value (Villalba v Merrill Lynch EAT/461/04).

If the employer refuses to respond to the questionnaire, a tribunal can infer that there is unequal pay.

The Equality and Human Rights Commission's Code of Practice on equal pay (as well as Acas) provides guidance and suggests good practice (www.equalityhumanrights.com/uploaded_files/code_of_practice_equalpay.pdf)

Employers are advised to carry out equal pay reviews, meaning that employers who fail to do so can have this fact used against them at a tribunal.

Public authority employers have a duty to promote equal pay under the gender equality duty (see above). Besides basic pay, the EA 10 also covers other contractual terms and conditions such as sick pay, holiday pay, special retirement privileges (such as travel concessions, pensions and redundancy pay) and any "fringe" benefits that can be defined as pay, including discretionary bonuses.

In the case of Hoyland v Asda Stores ([2006] IRLR 468), the Court of Session held that a bonus scheme that was "discretionary" (and therefore not an automatic contractual right) still amounted to pay that was "regulated" by the contract of employment - meaning that a claim relating to a discriminatory application of the scheme had to be brought under the EPA and not the Sex Discrimination Act 1975 (now both subsumed within the Equality Act 2010).

Each term in the employment contract stands separately, so an employer cannot justify one unequal term by saying that the employee benefited under another, different term (Jamstalldhetsombudsmannen v Orebro C-236/98 ([2000] IRLR 421)). Some pay systems have been found to be justified under European law, even though they are indirectly discriminatory, because they have an equality objective:

In another case, the ECJ upheld the legality of a scheme which paid an extra allowance to women who had been made redundant, to take account of evidence that they were more likely to remain out of work following redundancy (Hlozek v Roche Austria Case C-19/02).

The equal pay provisions of the EA 10 apply equally to part-time workers. The ECJ case of Bilka Kaufhaus v Weber von Hartz [1986] IRLR 317, established that refusing part-time workers access to a company pension scheme infringed the law on equal pay. And pieceworkers can also use the Act. According to the ECJ in the case of Specialarbejderforbundet i Danmark v Dansk Industri C-400/93 ([1995] IRLR 648), if there is an appreciable difference in pay between pieceworkers of different sexes, it is for the employer to prove that there is no sex-based discrimination.

Even if there are some men employed doing the same work as women for the same pay, this does not bar the women from bringing an equal value claim by comparing their jobs with those of other male workers being paid more (Pickstone v Freemans [1988] IRLR 357).

In the case of Home Office v Bailey and others [2005] EWCA Civ 327 ([2005] IRLR 369), the Court of Appeal held that female support officers could bring an equal pay claim using male governors as comparators, even though about 50% of support officers were male.

Equally, men engaged in lower-paid work predominantly carried out by women can bring "piggyback" claims (i.e. claims contingent upon their female colleagues' equal pay claims succeeding). In this way when female colleagues receive back pay from a tribunal, their male colleagues will be able to secure the same amounts reimbursed: Hartlepool Borough Council v Llewellyn and others; Middlesbrough Borough Council v Matthews and others; South Tyneside Borough Council v McAvoy and others; Middlesbrough Borough Council v Ashcroft and others UKEAT/0006/08; 0057-58/08; 0168/08; 0276/08.

A woman does not need to have worked for a particular length of time before claiming equal pay. She can claim at any time while she is in the job, or within six months of leaving that job. (Even if she stays with the same employer, if she changes jobs she must bring the claim within six months of leaving the job that her equal pay claim relates to).

Note that special rules on time limits apply following a TUPE transfer (see Powerhouse Retail Ltd & others v Burroughs & others [2006] UKHL 13 ([2006] IRLR 381).

If a worker has been employed on a series of contracts with the same employer, this can amount to a stable employment relationship for the purposes of the equal pay provisions of the EA 10, and the time limit for bringing a claim will run from the end of the last contract.

Comparing jobs

Section 65(1) of the EA 10 states that women have the right to equal treatment in pay where they carry out:

• like work to that of a man;

• work rated as equivalent to a man's; or

• work of equal value, in terms of, for example, effort, skill and decision-making, to a man's.

Like work is defined as work that is "the same or broadly similar" to the comparator (see below); the differences, if any, are not of practical importance. Tribunals will look at how work is carried out in practice to determine this. Where there are differences in the work, they will examine the frequency with which these occur.

Work rated as equivalent refers to work rated under a job evaluation scheme. The existence of a job evaluation scheme may act as a bar to workers taking equal value claims to a tribunal, but only if it was applied specifically to the group of workers - a job evaluation of health workers in Britain did not bar a claim by workers in Northern Ireland, for example (McAuley v Eastern Health & Social Services [1991] IRLR 467).

To bar a claim, a scheme must be "thorough in analysis" and "capable of impartial application" (Diageo v Thomson EAT/0064/03). If the scheme itself is discriminatory (for example, if factors generally seen as favourable to women have been excluded or wrongly weighted), it can be challenged, and a tribunal can reject a scheme where there is a "reasonable suspicion" that it is discriminatory.

To claim equal value, a woman (or man) must show that her/his job is of equal value to that of a more highly-paid male (or female) employee (the comparator), as measured by criteria such as skill and decision-making. For there to be a valid equal pay claim, there must be evidence that the reason for the difference in pay is gender:

The claim will not succeed if the employer can show a material difference between the jobs or a genuine material factor (see Bringing an equal pay claim), other than gender, that accounts for the difference in pay. For example, it may be lawful to pay workers different rates to reflect their different qualifications, even though in practice they appear to perform similar work. They can also be paid differently on account of their job performance, as long as it is their actual work and not their work potential that is assessed (Brunnhofer v Bank der Österreichischen Postsparkasse C-381/99 ([2001] IRLR 571)).

Different or additional tasks can also justify pay differences. In the case of Christie and others v John E Haith EAT/793/02 ([2003] IRLR 670), the EAT held that a requirement for male employees to lift heavy loads was lawful grounds for a pay difference. A pay difference resulting from pay protection after a TUPE transfer (see Chapter 12) is justifiable under equal pay law. Additionally, where the original basis for the difference in pay received by men and women is not discriminatory, it may be lawful (Audit Commission v Haq UKEAT/0123/10/LA).

Different pay rates based on length of service may also be justifiable. In the long-running case of Cadman v HSE C-17/05, the ECJ held that, as a general rule, length of service is enough to objectively justify a difference in pay as long service tends to go "hand-in-hand" with experience, which generally enables a worker to perform his or her duties better.

However, the ECJ did recognise that there were cases in which this general rule would not apply. It said this would be where the worker provides evidence giving rise to "serious doubts" that length of service goes hand in hand with experience and/or that experience enables the worker to perform his or her duties better.

In Wilson v Health and Safety Executive and EHRC (intervener) [2009] EWCA Civ 1074 [2010] IRLR 59, the employee challenged the lawfulness of a pay scale which, by a series of fixed pay increases, rewarded up to 10 years' service. The tribunal agreed that a 10-year period was not justified and that a five-year period would have been appropriate. On appeal, the Court of Appeal said the effect of the earlier decision in Cadman is that an employer can be required to provide objective justification for its use of a length of service criterion as well as its adoption in the first place. The "serious doubts" test is not an additional hurdle for the claimant to cross. It is a low test and simply operates as a preliminary filter to see whether the claimant is likely to be able to prove that in a particular case, justification may be required. The tribunal's decision was correct.

Women transferred to alternative work for health reasons during pregnancy cannot pursue an equal pay claim in respect of the alternative work. Equally, men do not have the right to claim equality in respect of any additional lump sum or loyalty bonuses paid to women on maternity leave (Abdoulaye v Renault [1999] IRLR 811).

Comparable worker

To win an equal pay claim, the claimant must be able to show that there is a worker of the opposite sex - the comparator - who is being paid more. Normally, the comparator will be in the same establishment (workplace). It is helpful to choose a comparator (or comparators, as more than one can be chosen) whose circumstances are most similar to the worker, to reduce the chances that the difference in pay can be explained by factors other than the sex of the worker.

In Somerset County Council and Secretary of State for Children, Schools and Families v Pike [2009] EWCA Civ 808, a teacher who had taken early retirement came back to work on a part-time basis. Only teachers in receipt of a pension who restarted work on a full-time basis were permitted to rejoin the pension scheme. Ms Pike argued that this policy indirectly discriminated against her and 73 colleagues on the basis of their gender. The Court of Appeal decided that the correct pool for comparison was not all teachers, but teachers who returned post-retirement. On this basis the policy had a statistically and legally significant adverse impact on the claimants.

A claimant can choose a comparator in another workplace owned by the same employer, if they work under the same terms and conditions (British Coal v Smith [1994] IRLR 342). Some workers, such as those in NHS trusts and local councils, may be able to compare their pay with that of workers in other trusts or councils.

In the case of Scullard v Southern Region Council for Education [1996] IRLR 344, an employee was able to claim equal pay with those employed by other regional councils. All were funded by the Department for Education and Employment, and the fact that the employers were different did not bar the claim. However, the Court of Appeal ruled in the case of Robertson v Department for Environment, Food and Rural Affairs [2005] EWCA Civ 138 ([2005] IRLR 363), that civil servants working for different civil service departments could not compare their jobs under equal pay law as there was no single source for their rate of pay - each department set its own terms and conditions.

In Dumfries and Galloway Council v North and others UKEATS/0047/08, the EAT considered the equal pay claims brought by female classroom assistants, support for learning assistants and nursery nurses. These school-based staff sought to compare their pay with male manual workers employed elsewhere (depots and a swimming pool). The EAT noted that the Equal Pay Act permits a comparison between male and female workers employed at different establishments.

However, there was no evidence that any of the male workers would ever be employed in schools, and furthermore the men and women were also employed on different sets of terms and conditions (Green and Blue Books respectively). Accordingly the claim failed.

In the case of Allonby v Accrington & Rossendale College C-256/01 ([2004] IRLR 224), the ECJ ruled that agency worker Debra Allonby could not compare her rate of pay with that of a directly employed male worker, even though both worked at the "same establishment". They had different employers and there was no common controlling entity regulating their pay.

Additionally, in the case of Walton Centre for Neurology v Bewley UKEAT/0564/07/MAA ([2008] IRLR 588), the EAT was asked by a health care assistant to compare the salary that she had been paid with that of the man who had taken over her job. The EAT decided that the Equal Pay Act did not permit such a comparison. However, under section 64, Equality Act 2010 (which came into force in October 2010) it is expressly possible for an individual bringing an equal pay claim to name as a comparator someone who previously or subsequently carried out that role (e.g. for a claimant to use as a comparator someone who has since left the organisation).

Bringing an equal pay claim

Before issuing a tribunal claim, the claimant should first issue a grievance to comply with the Acas code and avoid suffering a reduction to any compensation payment. The time limit for an equal pay claim in the tribunal under the Equality Act 2010 (EA 10) is six months from the end of the employment - although if this time limit is missed it may be possible to bring a claim (within six years) in the High Court (Abdulla and others v Birmingham City Council [2010] EWHC 3303).

If there is a business transfer, the employment will transfer under the TUPE regulations (see Chapter 12) and the new employer will still be liable for any equal pay claim - except if the claim relates to pensions. In the case of Powerhouse Retail Ltd & others v Burroughs & others [2006] UKHL 13 ([2006] IRLR 381), the House of Lords (now Supreme Court) held that, because occupational pension rights do not transfer under TUPE, any equal pay claim in relation to those rights must be brought against the old employer within six months of the date that the employment transferred.

There are special procedures for taking equal value claims to tribunals. These include a provision for the appointment of an independent expert, instructed by the tribunal to evaluate the jobs being compared. The expert examines the jobs and presents the resulting report as evidence. A tribunal can decide on a claim without using an expert, but must first give the parties the opportunity to appoint their own experts before giving its ruling on the claim (William Ball v Wood EAT/89/01).

The employer has a defence against equal pay claims if there is:

• a material difference justifying the pay gap (in like work cases); or

• a material factor justifying the pay gap (in equal value cases).

A material difference can include such aspects as merit pay, longer hours and so on. But the employer has to show that the difference is genuine and accounts for the whole of the pay disparity.

If a measure has been introduced for budgetary savings, the fact that it has not achieved the gains anticipated will not, in itself, cancel out the employer's defence. An ECJ ruling, however, suggests that budgeting constraints can never be used to justify sex discrimination unless there is a legitimate social policy behind them (Jorgensen v Foreningen C-226/98 ([2000] IRLR 726)).

The case of Redcar & Cleveland Borough Council v Bainbridge; Surtees v Middlesbrough Borough Council [2009] ICR 133, concerned steps taken by local authority employers in response to complaints of unequal pay patterns. The Court of Appeal found that a programme of phased changes to pay designed to shield male employees from more rapid drops in pay could amount, in itself, to unlawful discrimination.

The relevant test remains whether the employer's actions were objectively justified (i.e. a proportionate means of achieving a legitimate aim). Essentially, pay protection is unlawful where it is brought in to protect discriminatory payments. Material factors include matters such as skill shortages or an employee's special role in giving advice and training. Once the employer has shown genuine reasons, unconnected with sex, for the pay difference, it is under no further obligation to justify the difference (Villalba v Merrill Lynch & Co Inc & others EAT/0223/05).

In one case, bonus schemes purportedly designed to encourage productivity were attached to jobs which were predominantly carried out by men (such as joiners and painters rather than care assistants and office cleaners, for example). A tribunal found that the bonus payments were in fact additional payments for completing the work that individuals were already paid to do and were a sham. Accordingly, the employer's defence that the bonus payments were genuinely intended to encourage productivity failed (Dolphin v Hartlepool Borough Council and Housing Hartlepool Ltd UKEAT/0007/08/CEA).

In Chief Constable of West Midlands Police v Blackburn & Manley EWCA Civ 1208, two WPCs (with childcare responsibilities) complained that a shift bonus scheme for officers who worked at least four hours at night indirectly discriminated against them. The tribunal upheld the claim but the EAT disagreed and found that the payment of the bonus was to reward those who worked night shifts. Having found that this was a legitimate aim and was not related to any discrimination based on sex, the EAT decided that the tribunal should have gone on to conclude that it was justified.

In the case of Barber v NCR [1993] IRLR 95, a reduction in hours of work for male workers gave them a higher hourly rate than that of women whose work was equally evaluated. The women won the right to the higher hourly rate.

In some situations, pay rates may be determined by more than one collective process. However, the ECJ has held (Enderby v Frenchay HA [1993] IRLR 591) that differences resulting from multiple collective arrangements will not cause an equal pay claim to fail. This will be the case even if the collective processes, considered separately, have no discriminatory effect.

While the ECJ accepted that market forces could be an objective justification, it added that the claimants were entitled to any proportion of the difference that could not be objectively justified; this meant that speech therapists could successfully compare themselves with clinical psychologists, enabling them to negotiate a satisfactory compensation deal.

In the case of Ratcliffe v N. Yorkshire CC [1995] IRLR 439, the House of Lords (now Supreme Court) said that reducing the pay of school meals workers to win an in-house contract was contrary to equal pay laws. The women's work had been evaluated as equal to that of male workers who did not face a wage cut.

Back pay of up to six years can be recovered, plus interest from the halfway point. It is also possible for a claim to go back further than six years in two particular circumstances (section 129 EA 10):

• in a "concealment case" where the employer deliberately concealed relevant facts from the claimant; or

• in a disability case where the claimant is a minor (under-18 in England, Wales and Northern Ireland; under-16 in Scotland) or suffering from a mental disability (defined as someone who "lacks capacity" under the Mental Capacity Act 2005 in England and Wales or is "incapable" under the Adults with Incapacity (Scotland) Act 2000 and the Mental Health (Northern Ireland) Order 1986). Note that this is entirely different from the definition of a disability under the EA 10.

Bringing a discrimination claim

Before submitting a claim to the employment tribunal, it is advisable for an employee to first raise a written grievance (in order to comply with the Acas code and avoid a reduction to any compensation s/he secures). An individual can bring a claim for both direct and indirect discrimination, but should specify this on the claim form (Ali v Office of National Statistics [2004] EWCA Civ 1363 ([2005] IRLR 201)).

The time limit for all discrimination cases is three months from the date of the discriminatory act. If the individual is subject to continuing discrimination, the time limit runs from the end of that period of continuing discrimination - this would be the case if the employer operated a discriminatory policy, for example, rather than committing one-off acts of discrimination.

If a woman claims discriminatory treatment, the fact that she does not suffer this treatment while away from work on maternity leave does not break the continuity of discrimination (Spencer v HM Prison Service EAT/0812/02).

In a disability case, discrimination was found to continue during the employee's absence on sick leave (Hendricks v Commissioner of Police of the Metropolis [2002] EWCA Civ 1686 ([2003] IRLR 96)).

Where an employer promises but fails to take remedial steps to improve the working environment and prevent a recurrence of discrimination, this can fall within the definition of continuing discrimination (Littlewoods v Traynor [1993] IRLR 154). So too does a case where an employer has more than once rejected an employee for promotion on discriminatory grounds (Owusu v London Fire and Civil Defence Authority [1995] IRLR 574).

Where the claim is based on an employer's discriminatory recruitment policies, the three months run from the date of the last refusal of employment.

There is a difference between the continuing existence of a discriminatory rule or policy and its single or occasional application to a complainant. A claim based on refusal of a job because of a discriminatory policy must be brought within three months of the refusal (Tyagi v BBC World Service [2001] IRLR 465).

An employment tribunal has discretion to extend the time limit for bringing a discrimination claim if it is just and equitable to do so, although there must be a very good reason for this.

A claimant should never rely on time being extended, but should not be put off bringing a claim outside the normal time limit if there is a specific reason why s/he could not bring it in time.

A worker's right to bring a discrimination claim does not depend on their length of service.

Discrimination laws apply to workers at an establishment in Great Britain (or Northern Ireland). However, a worker can still be covered if part of their work is done outside the UK, or if their employer has a place of business there and the employee has lived in the UK either when s/he applied for or was offered the job, or at any time during the employment.

Claims of discrimination can be taken against bodies other than employers. Partnerships, trade unions, qualifying bodies, vocational training bodies, employment agencies and statutory bodies are all covered under the legislation. Claims can also be taken against work colleagues who have discriminated against or harassed other colleagues. In the case of Miles v Gilbank, the Court of Appeal held that a claim could be brought against an individual manager as well as the company:

It is sometimes useful to claim against the individual responsible for the discriminatory act or omission, as well as claiming against the employer. This is because this strategy will prevent the employer, if it is a small entity, from winding up the business and escaping liability. Tribunals have the power to make an order declaring the rights of the parties, award compensation to the employee discriminated against, and recommend action for the employer to take within a specific period.

Under section 124, Equality Act 2010, where an employer is found to have discriminated, the tribunal will have the power to make recommendations covering both the complainant and the whole workforce. Examples include a requirement that a letter be sent to all parents putting the record straight about a victimised teacher's performance (Governing Body of St Andrews Catholic School v Blundell UKEAT/0330/09) or that employees undergo equality training.

Although a tribunal's recommendation will not be binding, failure to follow a recommendation will be taken into account in any future discrimination cases involving the employer. Specifically, if in a subsequent case an employer is found to have ignored a tribunal's recommendations, the tribunal will be able to increase the amount of damages awarded to the claimant.

Tribunals rarely make recommendations but the government is consulting on removing this capacity from them (the consultation ends on 7 August 2012).

Compensation

There is no upper limit for compensation in discrimination claims, and compensation can be claimed under a number of different headings.

If the claimant has left his/her job as a result of discrimination, compensation for loss of earnings will include any actual financial loss sustained plus an estimate of future loss, assessed by taking the sum they would have earned at work (net of tax and national insurance contributions), deducting what might have been earned elsewhere and then reducing this by a percentage to reflect the possibility that they might have left the employer at some stage anyway (MoD v Wheeler [1998] IRLR 23). The fact that the employer "unintentionally" discriminated is not a defence.

Claimants can also claim damages for injury to feelings. The size of this award can reflect the length of time that the employer took to resolve the employee's grievance (BT v Reid [2003] EWCA Civ 1675 ([2004] IRLR 327)), and will also be affected by the seniority of the person who has discriminated and how persistent the discrimination has been.

The Court of Appeal established three bands within which injury to feelings awards should be made (Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1675 ([2003] IRLR 102)). Those bands have since been uplifted (following the case of Da'Bell v NSPCC UKEAT/0227/09) in order to take inflation into account.

There is a top band of between £18,000 and £30,000 for the most serious cases (e.g. where there has been a lengthy campaign of discriminatory harassment); a middle band of between £6,000 and £18,000 for serious cases which do not merit an award in the highest band; and a lower band of between £500 and £6,000 for less serious cases (e.g. where the act of discrimination is an isolated or one-off occurrence). Awards above or below these limits should only be made in exceptional circumstances.

Injury to feelings awards are not "grossed up" to take account of any tax liability the claimant might have (Orthet v Vince-Cain EAT/0801/03 ([2004] IRLR 857)).

In the case of Essa v Laing [2004] EWCA Civ 02 ([2004] IRLR 313), the Court of Appeal held that an employer was still liable to pay compensation for injury to feelings even though it could not have been foreseen that the discrimination would have affected the employee's health so badly. The Court held that there was a strict obligation on employers to pay compensation where health was damaged.

Equally, compensation may be due even if an employee omits to claim that the reason that they have suffered injury to feelings is because of the discriminatory treatment to which they have been subjected:

Sometimes an employer will argue that it should not be liable for the full extent of the injury that an employee has suffered because the employee had underlying health issues. The approach that tribunals should take is set out in the following case:

Tribunals can also award aggravated damages due to the exceptionally upsetting way a defendant carries out an unlawful act; due to a spiteful, vindictive or unthinking motive on the part of the wrong-doer; and due to conduct following the unlawful act (eg a failure to apologise). However, aggravated damages are meant to be compensatory rather than punitive (Commissioner of Police of the Metropolis v Shaw UKEAT/2011/0125).

There may be circumstances in which tribunals will award additional compensation for psychiatric injury, and in the case of MoD v Cannock [1994] IRLR 509, the EAT held that compensation could also be claimed for hurt caused by loss of a chosen career. Separate claims for personal injury (physical or mental) can be pursued in the civil courts (Sheriff v Klyne Tugs [1999] IRLR 481). Exceptionally, tribunals may also award exemplary damages - that is, damages that are punitive (rather than compensatory) where a public authority has behaved in an oppressive, arbitrary or unconstitutional way.

If an individual who has made a discrimination claim dies, the claim for compensation can be continued by relatives or beneficiaries (Executors of Soutar v James Murray [2002] IRLR 22). In determining compensation in harassment cases, tribunals will take account of the impact of harassment and how the employer responded to it. They may also take account of factors such as the victim's age (for example, if s/he was a young person, if s/he was particularly vulnerable), whether the employer's attitudes had encouraged the harassment, and whether complaints were ignored. Employees working in some sectors may also, in rare cases, be able to claim extended loss of earnings for being stigmatised for having brought a claim against their employer.

The case of Chagger v Abbey National PLC & another [2009] EWCA Civ 1202 [2010] IRLR 47, concerned a man of Indian ethnic origin, who had been dismissed for redundancy. Mr Chagger's allegation that the employer's redundancy scoring system discriminated against him on the grounds of his race, was upheld. On appeal, reviewing the loss of earnings awarded, the Court of Appeal noted that Mr Chagger had unsuccessfully applied for 111 jobs and that it had been assessed that he would never again find employment in the financial services industry.

The Court of Appeal rejected the employer's argument that Mr Chagger's loss of earnings should not be calculated on the basis of the rest of his working life. The Court found that Mr Chagger would only have left Abbey National to take up a similar or better paid job. The Court of Appeal decided that, in principle, claimants can claim compensation for stigma loss (normally by extending the damages due under the head of loss of earnings).

Evidence of what an employee might have done had he not been discriminated against (for example, evidence, based on his past employment record, suggesting that he would probably not have remained indefinitely at the discriminating employer even if the discrimination had not happened) will not normally be relevant to an assessment of compensation for discrimination. This is because a person out of work as a result of discrimination is usually in a completely different position from that of a normal jobhunter - having lost his or her job unexpectedly, and at a time not of their own choosing.

The normal measure for lost future earnings following a discriminatory dismissal will be to award compensation up to the point at which it is "at least possible" that the person is likely to find an equivalent job. Assessing compensation over a lifetime will very rarely be appropriate, and only where the evidence shows permanent career damage (Wardle v Credit Agricole Corporate and Investment Bank (EWCA/Civ/2011/545).

The case of Corus Hotels v Woodward EAT/0536/05, suggests that a tribunal cannot take into account the size of the employer's organisation or resources.

The Equality and Human Rights Commission

The Equality and Human Rights Commission (EHRC) began work on 1 October 2007, taking over the functions of the former Equal Opportunities Commission (EOC), Commission for Racial Equality (CRE) and Disability Rights Commission (DRC) as well as having responsibility for equality on grounds of religion or belief, sexual orientation and age together with human rights.

The EHRC was established under the Equality Act 2006 and exists to "reduce inequality, eliminate discrimination, strengthen good relations between people, and promote and protect human rights."

The Commission gives advice and guidance to businesses, the voluntary and public sectors, and also to individuals.

However, while the Commission has the power to take legal action on behalf of an individual, this is normally limited to particularly complex cases, or those where a question of legal principle is involved. It also has powers to enforce the equalities duties of organisations and authorities, including instituting official inquiries and formal investigations. Northern Ireland already had a single Equality Commission Northern Ireland, which covers all forms of unlawful discrimination.

The coalition government has launched a consultation into streamlining the EHRC and has announced that it will enact a number of measures designed to limit the EHRC's activities. If these measures prove ineffective further changes could include redistributing the EHRC's functions.

Codes of Practice

The Commission has issued Codes of Practice, which contain practical guidance and information on the interpretation of discrimination law. The codes are not legally enforceable themselves, but must be taken into account by tribunals when deciding discrimination claims; if employers ignore a code's recommendations, this can be used against them at a tribunal.