Discrimination (Equality Act 2010) Direct & Indirect

Question 1

S4 EA 1010 prohibits discrimination on the ground of nine sets of protected characteristics, what are they?

Answer 1

Age (Section 5)

Disability (Section 6).

Gender reassignment (Section 7).

Marriage and Civil Partnership (Section 8).

Race. (Section 9)

Religion or belief (Section 10)

Sex (Section 11).

Sexual orientation (Section 12).

Question 2

Age (Section 5)

Answer 2

It means a person belonging to a particular age group. An age group includes people of the same age and people of a particular range of ages.

Question 3

Disability (Section 6).

Answer 3

A person has a disability if, they have a physical or mental impairment; and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day to day activities.

Question 4

Gender reassignment (Section 7).

Answer 4

This includes person who propose to undergo, or who are undergoing or who have undergone gender reassignment.

Question 5

Marriage and Civil Partnership (Section 8).

Answer 5

You must be married or in a civil partnership to be protected. This does not include divorces, or persons who civil partnerships that have ended.

Question 6

Maternity.

Answer 6

EA 2010 does not give any definitions.

Question 7

Race. (Section 9)

Answer 7

Race includes, Colour, Nationality, Ethnic, National origins.

Question 8

Religion or belief (Section 10)

Answer 8

Religion or belief (Section 10) Religion means any religion or lack of religion.

Belief means any religious or philosophical or lack of belief (S10(2). EA10 protects those who practice “traditional” religions, those who follow belief systems such as Paganism and Humanism and those without any religious belief.

Guidance on what is “philosophical belief” was decided in NICHOLSON V GRAINGER PLC

The EAT went on to clarify the legal test for a philosophical belief, it must:
1) be genuinely held
2) be a belief and not an opinion
3) a belief which substantially influences human life and behaviour
4) attain a certain level of seriousness and importance.
5) be worthy of respect in a democratic society and not incompatible with human dignity or in conflict with the fundamental rights of others

Question 9

Sex (Section 11).

Answer 9

This applies to men and women.

Question 10

Sexual orientation (Section 12).

Answer 10

Sexual orientation means a person’s sexual orientation towards persons of the same sex, persons of the opposite sex, or persons of either sex (S12(1). Therefore, it covers people who are homosexual, heterosexual or bisexual.

Question 11

In addition to showing that a person has a protected characteristic, there must also be some type of prohibited conduct.

Discrimination is defined in the Equality Act 2010 as taking four main forms, what are they?

Answer 11

1. Direct Discrimination
2. Indirect Discrimination
3. Victimisation
4. Harassment

Question 12

What is direct discrimination?

Answer 12

Direct discrimination is defined in S13 EA 2010 as where A treats B less favourably than others because of a protected characteristic. It includes both discrimination by association and discrimination due to a protected characteristic

Question 13

What is discrimination by association?

Answer 13

Discrimination is not limited to people themselves who have a disability. The leading case for protected characteristic by association is COLEMAN v ATTRIDGE LAW and ANOTHER.

The Claimant cared for her disabled son and resigned from her employment when she was refused flexible working arrangements to enable her to care for him

Question 14

NOTE

Answer 14

It is not direct discrimination to treat a non-disabled person less favourably than a disabled person, nor to treat a man less favourably than a woman in connection with pregnancy or childbirth.

Question 15

What does the claimant need to prove to bring direct discrimination?

Answer 15

If an employee claims that their employer discriminated directly against them, it must be proven that the treatment was less favourable than the treatment which would be afforded to others due to the employee’s protected characteristic.

For the tribunal to approach this, a comparator must be utilised.

A comparator is a tool used by the tribunal to compare treatment of the claimant to someone who is in the same circumstance but who does not have the protected characteristic of the claimant. The comparator is someone who’s in the same or similar enough situation/role/job, but who doesn’t have the same protected characteristic.

Question 16

What is the reason for a comparator (direct discrimination)?

Answer 16

The purpose of employing a comparator is to enable the claimant to show that the reason for their treatment was their protected characteristic and nothing else.

Question 17

Burden of proof for direct discrimination?

Answer 17

The burden of proof does not shift to an employer to explain the reasons for its treatment of a claimant unless the claimant is able to prove facts from which unlawful discrimination can properly be inferred.

Direct discrimination can never be justified although an employer might have a defence if there is an occupational requirement.

An ET will rarely have clear evidence of direct discrimination; normally it will be a matter of inference from the available evidence.
In some cases, it is obvious what has occurred.

In DITTON V PUBLISHING, the claimant had been called a “wee poof” and told he was “psychologically imbalanced” when his employer found out he was gay.

Question 18

When might an employer have a defence for direct discrimination?

Answer 18

(Para 1 Sch 9) An employer may have a defence if they can show one of the following:

a) it is an occupational requirement;
b) the application of the requirement is a proportionate means of achieving a legitimate aim; and

Question 19

Rule on default retirement?

Answer 19

Default retirement age of 65 was included within the EA 2010 however it was abolished in 2011. Employers can set their own compulsory retirement ago and in Seldon v Clarkson Wright & Jakes. ET confirmed that imposing the retirement age of 65 was a legitimate means of achieving a proportionate aim.

Question 20

Remedies and damages available for direct discrimination?

Answer 20

All complaints of discrimination under EA 2010 in the field of employment are dealt with by ET’s, S120.

Normal time limit for a complaint is 3 months from the date of the alleged discrimination, although the ET may allow an action out of time if it is just and equitable to do so, S123(1).

The ET may award any of the following:

An order declaring the rights of the parties (S124(2)(A)). This is of limited effect, but sometimes the only appropriate remedy.

A recommendation that the respondent take a particular course of action designed to remove or reduce the effects of the discrimination in respect of the claimant (S124(2)(C). This remedy is not an order.

Compensation, including an award for injured feelings (S124(2)(B)). This remedy is frequently granted.

Compensation for discrimination is unlimited. When assessing how to award compensation the ET will consider financial loss and injury to feelings. When considering injury to feelings, the ET will apply the Vento guidelines.

Question 21

What are the VENTO Guidelines?

Answer 21

In Vento V Chief Constable of West Yorkshire Police (No2), the court identified three bands of awards:

o £27,000 - £45,000 where there has been a lengthy campaign of discriminatory harassment.

o £9,000 - £27,000 for serious cases which do not merit an award in the highest band.

o £900 - £9,000 for less serious cases such as where the act of discrimination is an isolated or one-off occurrence.

Question 22

Guidance to calculate compensation for career loss as a result of discrimination was given by COA in Chagger v Abbey National plc and Another.

Answer 22

Court stated that:

o The task was to put the employee in the position he would have been in had there been no discrimination.
o Stigma loss was recoverable.
o When determining stigma loss, there will be evidence of the employee’s attempts to gain employment and this can be used to determine how long it will be before a job can be found.
o Tribunal should consider whether compensation should be reduced to take account of the chance that the employee might have been dismissed in any event.

Question 23

What is indirect discrimination?

Answer 23

Indirect discrimination is defined in section 19 of the EA 2010. It occurs when a provision, criterion or practice applies in the same way to everybody but has an effect which particularly disadvantages, for example, disabled people.

Indirect discrimination occurs when a rule or policy that applies to everyone has a worse effect on someone with a protected characteristic.

Question 24

What is a provision, criterion or practice?

Answer 24

A provision, criterion or practice can include both formal written workplace practices and informed work practices as well as contractual rules. Examples include decisions around workplace facilities – for example toilets, rest areas and canteens, and dress codes (religious reasons).

Question 25

How do you prove indirect discrimination?

Answer 25

To prove indirect discrimination in employment law, you can provide evidence such as include Witness statements or Company policies.

All that is needed is that a policy or practice has put you in a particular disadvantage when compared with other people who do not share the characteristic in question.

Question 26

How can an employer justify indirect discrimination?

Answer 26

Unlike direct discrimination, it is possible for an employer to justify indirect discrimination if it can show that it was PROPORTIONATE MEANS OF ACHIEVING A LEGITIMATE AIM.

WHAT IS JUSTIFIABLE DEPENDS ON THE FACTS OF THE CASE. This may include business or economic means, as seen in BILKA
If an employer can show justification, there is no indirect discrimination

Question 27

Indirect discrimination case

Answer 27

In MANDLA V DOWELL LEE, a Sikh kid wanted to attend public school, but he needed to remove his turban and cut his hair. He could have but then he wouldn’t be a Sikh, therefore the school was found liable.

Question 28

Pregnancy Discrimination

Answer 28

S18 EA 2010 provided that A discriminates against a woman if A treats her unfavourably because of pregnancy or because of illness suffered as a result of it.

A also discriminates if A treats her unfavourably because she is on compulsory maaternity leave (S18(3) or because she seeks to exercise her rights to maternity leave (S18(4).

S13 will not apply to a woman if she is within the protected period and she is discriminated against because of her pregnancy or pregnancy-related illness.

Question 29

Recruitment Discrimination

Answer 29

Individuals are protected against unlawful discrimination at work under the Equality Act 2010.

SS39(1) and (3) EA 2010.

An employer (A) must not discriminate against or victimise a person.
* in the arrangements A makes for deciding to whom to offer employment;
* as to the terms on which A offers B employment;
* by not offering B employment.

Unlawful discrimination is defined as unequal treatment based on a protected characteristic. These protections apply throughout the employment lifecycle, from recruitment and selection, through to contract termination.

This means that an individual who has been discriminated against while looking for a job may be able to bring a discrimination claim if they can demonstrate they have been treated unfairly due to a protected characteristic.

Rejecting an applicant for any of the following protected characteristics, as defined under the Equality Act, could constitute discrimination.

It is unlawful to publish a discriminatory advertisement and a word which has connotations of a protected characteristic infringes this law unless the advertisement contains an indication to the contrary.

Where a discriminatory advertisement is published, only the ECHR can bring a claim to the ET. The remedy available is a declaration, which is an order declaring the rights of the parties or a recommendation that the employer take a particular course of action to reduce the effects of the discrimination complained of.

S60 makes it unlawful for an employer to ask a job applicant about their health.
An employer will only be able to ask the job applicant about their health it is necessary for the purpose of:

5. establishing whether reasonable adjustments are required for interview,
6. whether they will be able to perform a function that is intrinsic to the job;
7. monitoring diversity;
8. taking positive action and establishing whether they have a particular disability.

S159 provides that, when faced with two candidates who are equally qualified, entitled to treat A more favourably than B, because A has the protected characteristic. This means the employer can recruit a person who has a protected characteristic because they have the protected characteristic.