Employment Discrimination Under the Equality Act 2010

Introduction

Employment discrimination law in the United Kingdom is governed by the Equality Act 2010 (EqA 2010), which consolidated and harmonised earlier anti-discrimination legislation, including the Equal Pay Act 1970, the Sex Discrimination Act 1975, the Race Relations Act 1976, and the Disability Discrimination Act 1995. The EqA 2010 prohibits discrimination in employment on the grounds of nine protected characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

Protected Characteristics

Section 4 of the EqA 2010 defines the nine protected characteristics. Age protection covers people of all ages. Disability is defined by section 6 as a physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. Gender reassignment protects trans people, including those who are proposing to undergo, are undergoing, or have undergone the process of reassigning their gender.

Race includes colour, nationality, and ethnic or national origins. Religion or belief includes any religion, religious belief, or philosophical belief. Sex refers to biological sex. Sexual orientation covers orientation towards persons of the same sex, opposite sex, or both sexes.

Direct Discrimination

Direct discrimination occurs under section 13 of the EqA 2010 where a person treats another person less favourably than they treat or would treat others because of a protected characteristic. Direct discrimination cannot be justified except in relation to age discrimination, where it may be justified if it is a proportionate means of achieving a legitimate aim.

Direct discrimination requires a comparator — a person who does not share the protected characteristic but whose circumstances are not materially different. The comparison must be like-for-like: for example, comparing the treatment of a woman with the treatment of a man in similar circumstances.

Indirect Discrimination

Indirect discrimination occurs under section 19 of the EqA 2010 where a person applies to another a provision, criterion, or practice that is discriminatory in relation to a protected characteristic. The provision, criterion, or practice must put or would put persons sharing the protected characteristic at a particular disadvantage compared with persons who do not share it, and the person applying it cannot show it to be a proportionate means of achieving a legitimate aim.

Indirect discrimination recognises that apparently neutral rules may have a disproportionate impact on groups sharing protected characteristics. For example, a requirement to work full-time may indirectly discriminate against women, who are more likely to have caring responsibilities.

Harassment

Harassment is defined by section 26 of the EqA 2010 as unwanted conduct related to a relevant protected characteristic that has the purpose or effect of violating the person’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment. Harassment also covers unwanted conduct of a sexual nature and treating a person less favourably because they have rejected or submitted to such conduct.

The test for whether conduct has the effect of creating a hostile environment considers the perception of the victim, the other circumstances of the case, and whether it is reasonable for the conduct to have that effect.

Victimisation

Victimisation under section 27 of the EqA 2010 occurs where a person subjects another to a detriment because the other person has done a protected act, or the other person is believed to have done or may do a protected act. Protected acts include: bringing proceedings under the EqA 2010; giving evidence or information in connection with such proceedings; making an allegation that a person has contravened the Act; and doing anything else for the purposes of or in connection with the Act.

Victimisation protects individuals from being penalised for asserting their rights under the equality legislation and is essential to the effective enforcement of discrimination law.

The Defence of Justification

Direct discrimination (other than age) cannot be justified. Indirect discrimination may be justified if the employer can show that the provision, criterion, or practice is a proportionate means of achieving a legitimate aim. The tribunal must balance the discriminatory effect against the employer’s need to achieve the legitimate aim, considering whether there are less discriminatory alternatives.

Employer Liability

Employers are vicariously liable for acts of discrimination, harassment, and victimisation committed by their employees in the course of employment, unless the employer can show that it took all reasonable steps to prevent the employee from doing the act (section 109 of the EqA 2010). Employers should have robust equality policies, provide equality training, and implement effective complaints procedures.

Enforcement and Remedies

Claims of employment discrimination are brought in the Employment Tribunal. The tribunal may make a declaration as to the rights of the parties, make a recommendation that the respondent take specified action within a specified period, or award compensation. There is no cap on compensation for discrimination claims, and awards for injury to feelings (the Vento bands) are made for the distress caused by the discrimination.

Conclusion

The Equality Act 2010 provides comprehensive protection against discrimination in employment. The prohibition of direct and indirect discrimination, harassment, and victimisation, together with the provisions on employer liability and enforcement, ensure that individuals are protected from disadvantage and mistreatment on grounds of protected characteristics.