Equality legislation in the UK, formerly in separate Acts and regulations for each protected characteristic, is now primarily found in the
Equality Act 2010. Particularly since the United Kingdom joined the
Social Chapter of the
European Union treaties, it mirrors a series of EU Directives. The three main Directives are the Equal Treatment Directive (
Directive 2006/54/EC, for gender), the
Racial Equality Directive (2000/48/EC) and the
Directive establishing a general framework for equal treatment in employment and occupation (2000/78/EC, for religion, belief, sexuality, disability and age).
Direct discrimination Direct discrimination occurs when an employer treats someone less favourably on the ground of a protected characteristic. It is unlawful under section 13 of the Equality Act 2010. A protected characteristic (age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex, and sexual orientation) must be the reason for the different treatment, so that it is because of that characteristic that the less favourable treatment occurs. Generally, the law protects everyone, not just a group perceived to suffer discrimination. Therefore, it is unlawful to treat a man less favourably than a woman, or a woman less favourably than a man, on the ground of the person's sex. However people who are single are not protected against more favourable treatment of people in marriage or civil partnership, and non disabled people are not protected if a disabled person is treated more favourably. In
Coleman v Attridge Law in the
European Court of Justice confirmed that a person may claim discrimination even if they are not the person with the protected characteristic, but rather they suffer unfavourable treatment because of someone they associate with. For the protected characteristic of Age, it is a defence to a claim of direct discrimination that the discrimination is "justified" by some reason. There is no defence of justification for other protected characteristics.
Harassment Under the
Equality Act 2010 section 26, a person harasses another if he or she engages in unwanted conduct related to a relevant protected characteristic, and the conduct has the purpose or effect of violating the other's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the other. It is also harassment if a person treats another less favourably because the other has rejected or submitted to unwanted conduct of a sexual nature.
Victimisation The definition of "victimisation" is found in the
Equality Act 2010 section 27. It refers to subjecting a person to a further detriment after they try to complain or bring proceedings in connection with discrimination, on their own behalf or on behalf of someone else.
Indirect discrimination "Indirect" discrimination is unlawful under the
Equality Act 2010 section 19. It involves the application of a provision, criterion or practice to everyone, which has a disproportionate effect on some people and is not objectively justified. For instance, a requirement that applicants for a job be over a certain height would have a greater impact on women than on men, as the average height of women is lower than that of men. It is a defence for the employer to show that the requirement is “a proportionate means of achieving a legitimate aim”. •
Ojutiku v Manpower Services Commission [1982] EWCA Civ 3, [1982] ICR 661 •
R (Schaffter) v Secretary of State for Education [1987] IRLR 53 •
Rainey v Greater Glasgow Health Board [1987] AC 224 •
Clymo v Wandsworth London Borough Council [1989] ICR 250 •
Enderby v Frenchay Health Authority (C-127/92) [1994] ICR 112 •
R (Equal Opportunities Commission) v Secretary of State for Trade and Industry [1995] 1 AC 1 •
Staffordshire County Council v Black [1995] IRLR 234 •
R (Seymour Smith) v Secretary of State for Employment [2000] ICR 244 •
Rutherford v Secretary of State for Trade and Industry (No 2) [2006] UKHL 19
Positive action Discrimination law is "blind" in that motive is irrelevant to discrimination and both minorities or majorities could make discrimination claims if they suffer less favourable treatment. Positive discrimination (or "
affirmative action" as it is known in the US) to fill up diversity quotas, or for any other purpose, is prohibited throughout Europe, because it violates the principle of equal treatment just as much as negative discrimination. There is, however, a large exception. Suppose an employer is hiring new staff, and they have 2 applications where the applicants are equally qualified for the job. If the workforce does not reflect society's makeup (e.g. that women, or ethnic minorities are under-represented) then the employer may prefer the candidate which would correct that imbalance. But they may
only do so where both candidates are of equal merit, and further conditions must be met. This type of measure is also known as
positive action. Sections 158 and 159
Equality Act 2010 set out the circumstances in which positive action is allowed. Section 159, which deals with positive action in connection with recruitment and promotion (and which is the basis for the example of equally qualified applicants above), did not come into force until April 2011. The Government Equalities Office has issued a guide to the Section 159 rules. Section 158 deals with the circumstances in which positive action is permitted other than in connection with recruitment and promotion, for example in provision of training opportunities. Section 158 does not have the requirement for candidates to be equally qualified.
Disability claims The normal types of claim apply to disability, but additional types of claim are particular to it. These are 'discrimination arising from disability' and the reasonable adjustment duty. "Discrimination arising from disability" was a newly formulated test introduced after the House of Lords decision in
Lewisham LBC v Malcolm and EHRC was felt to have shifted the balance of protection too far away from disabled people. Section 15
Equality Act 2010 creates a broad protection against being treated unfavourably "because of something arising in consequence of" the person's disability, but subject to the employer having an 'objective justification' defence if it shows its action was a proportionate means of achieving a legitimate aim. There is also a 'knowledge requirement', in that the employer has a defence if it shows it did not know, and could not reasonably be expected to know, that the person had the disability. Section 15 will apply, for example, where a disabled person is dismissed because of a long absence from work which resulted from their disability - the issue will be whether the employer can show the 'objective justification' defence applies (assuming the 'knowledge requirement' is met). The reasonable adjustment duty is particularly important. The duty can apply where a disabled person is put at a 'substantial' disadvantage in comparison with non-disabled people by a 'provision, criterion or practice' or by a physical feature. The employer's obligation is, broadly, to take such steps as it is reasonable to have to take to avoid the disadvantage (s 20
Equality Act 2010). 'Substantial' means only more than minor or trivial (s 212(1)
Equality Act 2010). A further strand of the duty can require an employer to provide an auxiliary aid or service (s 20(5)
Equality Act 2010). There are provisions dealing with employer's lack of knowledge of the disability (
Equality Act 2010 Sch 8 para 20). Employers should actively pursue policies to accommodate protected groups into the workforce. This duty is made explicit in law for pregnant women and for people who are disabled. For people with religious sensitivities, particularly the desire to worship during work cases show there is no duty, but employers should apply their minds to accommodating their employee's wishes even if they ultimately decide not to.
Enforcement The main outcome of the
Equality Act 2006 was the establishment of a new Equality and Human Rights Commission, subsuming specialist bodies from before. Its role is in research, promotion, raising awareness and enforcement of equality standards. For lawyers, the most important work of predecessors has been strategic litigation (advising and funding cases which could significantly advance the law) and developing codes of best practice for employers to use. Around 20,000 discrimination cases are brought each year to UK tribunals. ==Defences==