Having previously looked at the protected characteristics in discrimination law we’ll be looking at the relevant types of ‘discrimination’ (technically victimisation and harassment aren’t discrimination) under the Equality Act 2010.

These are, briefly:

  1. Direct (s.13)
  2. Combined (s.14)
  3. Arising from disability (s.15)
  4. Gender reassignment (relating to absence from work) (s.16)
  5. Pregnancy and maternity (s.18)
  6. Harassment (s.26)
  7. Victimisation (s.27)

We’ll visit each of these types of discrimination in turn to provide a short summary of their substantive content.

Direct discrimination

This is substantially similar to the definition of discrimination under the previous statute relating to equality with the sole difference being that less favourable treatment is now ‘because of’ a protected characteristic and not ‘on the grounds of’. This change was introduced to make the Act more accessible to the layman, laying aside the fact that anyone casually browsing through statute needs their head checked.

The definition of direction discrimination under the Act is therefore ‘less favourable treatment of person ‘A’ because of their (or another’s) protected characteristic. The less favourable treatment can be as a result of person A’s possessing (or being believed to possess) the protected characteristic or, as in the case of discrimination by association, because of someone else possessing that characteristic. For example, person A being treated less favourably by their employer (i.e. refused a promotion) because of person A’s refusal to discriminate against another employee, client etc. is an example of discrimination by association.

As is necessary in most cases, less favourable treatment is established by comparing person A’s treatment with other actual or hypothetical comparators working at the same company.

Only age discrimination can be justified.

Combined (or “multiple”) discrimination

This is a completely new ground of discrimination. Combined discrimination occurs when person A is treated less favourably because of their combination of two protected characteristics (i.e. race and disability) by someone who doesn’t share that combination of characteristics. It can only be used in cases of direct discrimination and doesn’t apply to other types of discrimination. The drawback to bringing a claim of this type is that the claim stands and falls upon the combination of protected characteristics used. If, for example, their employer is held liable for race discrimination but not for disability discrimination then that claim for discrimination would fail in its entirety. It may therefore be worth bringing separate claims for race discrimination and disability discrimination as well as for “multiple discrimination” under the Equality Act 2010.

The protected characteristics that can’t be used with this form of discrimination are pregnancy or marriage/civil partnership.

Multiple discrimination can be justified if the employer has a legitimate occupational requirement that necessitates that form of discrimination. Again, if the discrimination can be justified by the employer because of an occupational requirement on one ‘wing’ of the “multiple” discrimination claim then the “multiple” discrimination claim itself fails.

Discrimination arising from disability

Discrimination arising from disability is, again, a new type of discrimination in the Equality Act 2010 and has been created to try and escape from the House of Lords’ restrictions on disability discrimination in the infamous Malcolm case.

It is defined as where: A treats B less favourably than A treats others who are not disabled and such treatment is not justified. The treatment can be justified if it is both material to the circumstances of the particular case and substantial. An example is given in the Act as

An employee with a visual impairment is dismissed because he cannot do as much work as a non-disabled colleague. If the employer sought to justify the dismissal, he would need to show that it was a proportionate means of achieving a legitimate aim.

Gender reassignment

This type of discrimination occurs if: A treats B less favourably because of their absence from work by reason of gender reassignment than A would treat B if B’s absence was because of sickness or injury (or B’s absence was for some other reason) and it is not reasonable for B to be treated less favourably.

Gender reassignment is defined as anyone who is proposing, undergoing, or has undergone a propose for the purpose of reassigning their sex by changing physiological or other attributes of their sex.

There are two lines of defence open to the employer regarding this type of discrimination.

  1. B has not been treated less favourably. For example, B is absent from work for a week because of reasons relating to gender reassignment and is disciplined or dismissed. However, if other employees absent from work for a reason not related to gender reassignment would have received the same treatment then this is obviously not ‘less favourable treatment’.
  2. ; and/or

  3. If there was less favourable treatment then it was reasonable to treat that person in such a manner

Pregnancy and maternity discrimination

The pregnancy and maternity discrimination prohibition under the Equality Act 2010 is substantially similar to the prohibition contained previously under the Sex Discrimination Act 1975. Person A is discriminated against if in the protected period (‘PP’) A is treated less favourably because of the pregnancy or an illness suffered as a result of the pregnancy. The PP begins when the pregnancy begins and ends when (if there is a right to take Ordinary Maternity Leave or Additional Maternity Leave) when the worker returns to work or their Additional Maternity Leave allocation ends. If there is no right to OML or AML then the PP ends at the end of the Compulsory Maternity Leave (CML) (2 weeks from the birth-date).

Important point: don’t use s.13 (direct discrimination) to assert maternity rights. S.18 should be used.

Indirect

Again, this element of discrimination legislation is substantially similar to what existed prior to the Equality Act 2010. Person B discriminates against Person A if they apply to A a provision, criterion or practice (‘PCP’) (not cumulatively but individually – either a criterion, practice or provision) which is discriminatory in relation to a relevant protected characteristic of A’s. The PCP is discriminatory if it is applied to persons with whom A does not share the characteristic, puts persons with whom A shares that characteristic when compared to people who do not share A’s characteristic, does in fact put A at a disadvantage, and B can’t show that it is a proportionate means of achieving a legitimate aim.

Failure to comply with a duty to make adjustments for disabled persons

A duty to make adjustments arises where a PCP, physical feature of the workplace or the lack of an auxiliary aid puts a disabled person at a substantial disadvantage relating to a relevant matter in comparison with persons who are not disabled.

As under the Disability Discrimination Act 1995 a Claimant must first show that they are in fact disabled (a test which we won’t cover here but will do so in a later post). Once this test is hurdled the Claimant must show that there was a disability – that there was in fact a PCP etc. that was putting them at a substantial disadvantage in comparison to people who were not disabled – and that the Respondent had failed to comply with such a duty, thereby discriminating against them.

Harassment

There are now 3 types of ‘harassment’:

  1. Unwanted conduct harassment
  2. Sexual harassment
  3. Non-submission harassment

Unwanted conduct harassment: B harasses A if B exhibits unwanted conduct which has the purpose or effect of either creating a humiliating, intimidating, hostile, degrading or offensive environment for A OR the conduct violates their dignity.

Sexual harassment: Substantially similar to unwanted conduct harassment but there has to be a sexual element to the conduct or sexual harassment itself.

Non-submission harassment: Harassment occurs if B treats A less favourably than another employee because A has submitted or failed to submit to sexual harassment or harassment related to sex or gender reassignment which has the purpose or effect of either creating an intimidating, hostile, degrading, humiliating or offensive environment for A OR of violating A’s dignity.

Victimisation

Defined as subjecting a person to a detriment because that person is doing, has done or may do a protected act. A protected act is defined broadly and includes bringing proceedings under the EA 2010, giving evidence or information in connection with bringing such proceedings, doing any other thing in connection with the Act or making an allegation that the employer or another person has contravened the Act. An important element of this is that the protected act must be made in good faith.

So there’s a brief overview of the remit of ‘discrimination law’ as per the Equality Act 2010. It won’t be sufficient to prosecute a case but hopefully will allow you to get a summary of the relevant equality law provisions.

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The Direct 2 Lawyers Employment Team post daily on interesting employment law cases, Employment Tribunal judgments and Employment Appeal Tribunal judgments. All of the Employment Team posts are written by qualified specialist employment lawyers

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