Under the Equality Act 2010 there are three constituent parts to any claim for “discrimination” (in the broad sense). The victim of discrimination must possess a ‘protected characteristic’ (i.e. disability, skin colour or age etc.), a ‘prohibited act’ must have been carried out (i.e. dismissal of the victim of discrimination), and the reason for this prohibited act must be the “victim’s” protected characteristic (we’ll call this the “causal element”). The issue that will be addressed directly today is that of the causal element – the reason for the discrimination itself.
The causal element in discrimination claims is often the lynch pin of whether a claim is viable and /or successful. The Equality Act states that the protected act must have been carried out (i.e. the Claimant’s dismissal) “because of” their protected characteristic (i.e. skin colour). An issue that constantly reoccurs with the discrimination claims that Direct 2 Lawyers is presented with is that the less favourable treatment that a Claimant receives is not because of their protected characteristic but for another reason entirely. This cannot be classed as discrimination. Let’s take a look at an example.
Tony, a 55 year-old man of Jamaican origin, has worked as a cleaner at Fiferow Airport for almost 10 years. He’s always been seen as a good worker and generally enjoys his job. However, he’s never had a very good relationship with Sam, his line manager. Sam has, in the past, carried out potentially discriminatory acts which have affected Tony. For example, in 2006 Tony asked for a new uniform as his was becoming quite tattered. In response to this Sam said that he couldn’t have a new uniform because all Tony would do would be to sell it to his family in Jamaica to make a bit of money. However, Tony knew that Sam had recently given a new uniform to Mandy, a white British woman. This was clearly an act of discrimination – Sam treated Tony less favourably than Mandy, ostensibly because of Tony’s nationality.
After a long period where Tony hasn’t had a problem with Sam, there has recently been another issue. Last week Sam accused Tony of stealing from the store cupboard and subjected him to a humiliating and degrading search in front of at least a dozen other employees. Sam found nothing but said that the reason for his search was that he saw Tony put things in his pocket in the store room and knew that Tony had a (spent) criminal conviction for theft. Was this discrimination? On the balance, and considering only these facts, probably not. Although the past incidents of discrimination would suggest that racial prejudice may possibly have been a motivation on Sam’s part there is nothing to suggest on these facts that Sam’s treatment of Tony in this incident was discriminatory. Sam had reason to believe that Tony was stealing and therefore searched him. There doesn’t appear to be any ‘racist’ motive. Sam’s treatment of Tony could not therefore be suggested to be “because of” Tony’s race (his protected characteristic). As a consequence this would not be an act of discrimination but either a personality clash or, more charitably, a simple mistake on Sam’s part.
The reason for this post is that there’s an important technical difference between the normal definition of “discrimination” (i.e. Tony being treated differently from the other employees) and the legal definition of discrimination (i.e. with direct discrimination, the less favourable treatment of Tony because of his nationality). It’s important for potential and actual victims of discrimination to appreciate this difference, and even more important for legal advisers to do so. Not every act of differential treatment is an act of unlawful discriminatory treatment.