The Equality Act came into force in October 2010 and replaces all previous equality legislation in England, Scotland and Wales, including the Race Relations Act, the Equal Pay Act and the Sex Discrimination Act, among others.
Northern Ireland is not covered by the Equality Act and has its own separate Acts – see this article for more details.
Ready for the details? Here we go!
The Equality Act & Protected Characteristics
The Equality Act covers the same characteristics that are protected by existing equality legislation:
- Gender reassignment
- Race (In 2013, legislation required that Caste should have been added to the definition of Race, but in 2018 the Government, after consultation, decided not to include it. By this point an Employment Appeal Tribunal in Chandhok and another v Tirkey, 2015, had held that caste discrimination could be covered by the protected characteristic of race under the “ethnic origin” element. This case did not set a “definitive decision in principle” that caste would always be covered but it did demonstrate how ethnic origin can be extended to include caste)
- Religion or belief
- Sexual orientation
- Marriage and civil partnership
- Pregnancy and maternity.
However, these groups will now be called ‘Protected Characteristics’ (PC’s).
This Act applies equally to employees, workers and many of those who are self-employed (only freelancers described as ‘contract workers’ and are contracted personally to do the work, i.e you can’t claim discrimination against your Employer if you’re contracted for the provision of services and hire someone else, or sub-contract someone else, to do the work). See our information about limited company contractors and the Equality Act here.
Your Employer must, by law, have an Equal Opportunities policy. They must also consider the following:
- Right to apply for flexible working for parents
- Prevention of less favourable treatment for part-time workers
- Prevention of less favourable treatment for Fixed Term employees
- Maternity Rights.
In addition, there’s specific legislation in Northern Ireland that amends the Race Relations Act by identifying the Irish Traveller community as a racial community and makes it unlawful to discriminate against someone on the grounds of religious belief or political opinion. They cover direct and indirect discrimination and victimisation.
The Equal Opportunities Commission, the Disability Rights Commission and the Commission for Racial Equality were merged in October 2007 to form a single equality body called the Commission for Equality and Human Rights. It offers various publications and advice to explain the above in more detail.
Let’s take a more detailed look at the Protected Characteristics:
The Act protects people of all ages. However, different treatment because of age is not necessarily unlawful (direct or indirect) discrimination if Employers can justify it, i.e. they can demonstrate that it’s a proportionate means of meeting a legitimate aim.
In 2015 in Osborne and another v Gondhia and others t/a Rubata Partnership, two young sisters who were subjected to aggressive and unfair criticism were found to have suffered age discrimination.
The two sisters had resigned from their jobs in a service station; they were aged 18 and 21 and alleged they were “berated aggressively” over mistakes that were caused by another employee. The Tribunal felt they were “not treated with the respect they deserved as employees” and that the employer wouldn’t have treated an older employee in the same way. They were also successful in their sex discrimination claims after the owner dubbed cleaning “a woman’s work”.
In March 2015, the Employment Appeal Tribunal heard the appeal in a test case against 5 police forces as to whether the rule requiring police officers to retire after 30 years’ service (to cut costs) is legal. The EAT judgment on Harrod and others v Chief Constable of West Midlands Police and others, was delivered on 8 July 2015. The EAT overturned the employment tribunal decision that five police forces committed age discrimination when they liberally used the “A19 rule”. This decision was appealed and in February 2017 The Court of Appeal ruled that police forces’ use of Regulation A19, which required police officers with more than 30 years’ pensionable service to retire, did not amount to age discrimination.
In November 2021 a 14 year waitress, who was sacked because of her age, was found to be discriminated against at an Employment Tribunal. The Teenager, Miss H Cassidy, became one of the youngest people to successfully win an age discrimination claim. The employer, at Daimler Foundation’s cafe had told her that she was too young to work there for health and safety reasons after just two days’ work. Employers can employ people from the age of 13, provided that limits on working time, work during term-time, additional health and safety duties, and any local authority rules, are observed.
More details about age discrimination related to retirement are here.
The Act has made it easier for a person to show that they’re disabled. Under the new Act, a person is disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities (which would include things like using a telephone, reading a book or using public transport).
‘Normal day to day activity’ was, in 2016, found by the Employment Appeal Tribunal to also include many skills and activities commonly required for work (you can read more details in our additional disability article given above).
As before, the Act puts a duty on employers to make reasonable adjustments for staff to help them overcome disadvantage resulting from an impairment. Disabled people are no longer required themselves to establish that their treatment is less favourable than that experienced by a non-disabled employee.
The Act includes a new protection from discrimination arising from disability – namely, it’s discriminatory to treat a disabled person unfavourably because of something connected with their disability (e.g. a tendency to make spelling mistakes arising from dyslexia). This type of discrimination is unlawful where the employer or other person acting for the employer knows, or could reasonably be expected to know, that the person has a disability. This type of discrimination is only justifiable if an employer can show that it’s a proportionate means of achieving a legitimate aim.
Additionally, indirect discrimination now covers disabled people. See more information about disability here.
The Equality Act says that “a person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing, or has undergone, a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”.
It’s discrimination to treat transgender people less favourably (i.e. someone who doesn’t identify with the gender they were assigned at birth) – for example if they are absent from work because of gender reassignment surgery then you must treat them the same as if they were absent because they were ill or injured, as any other employee. Medical procedures for gender reassignment such as hormone treatment cannot be treated as a ‘lifestyle’ choice.
You must also, for example, let transgender staff choose the toilet facilities they wish to use. If other members of staff object to this, this could potentially be discriminatory.
If you employ someone who has transitioned to another gender, you must keep this information confidential and ensure that any records which refer to their gender identity at birth are kept in a safe place. This information constitutes ‘special category data’ under the General Data Protection Regulations 2018. If an employer needs to retain information that’s related to the transition (such as absence records for medical reasons), their birth certificate or documentation of a name change this should be kept confidential; computer databases/systems should only reflect the current situation of their name/gender and contain no ‘old’ data.
It’s a criminal offence for any member of staff who has found protected information regarding someone’s gender identity to disclose that information to another person.
In 2018 in Miss A de Souza E Souza v Primark Stores Ltd, it was found that the claimant’s constructive dismissal was direct gender reassignment discrimination, after she suffered harassment from a supervisor and other staff members, including in front of customers, in the form of calling her by her original male name, calling her a ‘joke’ and ‘evil’. The claimant raised a grievance and later complained to the police. Primark dealt with the grievance badly by making errors in its investigations and she was never informed of the outcome of her grievance or given a right of appeal. She was awarded £47,433 in damages.
In 2020, a landmark tribunal case confirmed that gender non-binary, or gender fluid, people are also protected under the definition of gender reassignment. Until this judgement it was not clear whether the Equality Act covered people who did not identify as either male or female (as transgender people do), but identify as neither of these categories, or fluctuate between them.
In Ms R Taylor v Jaguar Land Rover Ltd, the Employment Tribunal found that Taylor, an engineer who faced insults and jokes at work, after identifying as gender fluid, had been harassed, discriminated against and had been constructively unfairly dismissed.
For the purposes of the Act, ‘race’ includes colour, nationality and ethnic or national origins. A racial group can be made up of two or more different racial groups (e.g. Black Britons).
For information about discrimination relating to languages used at work, see our article here.
It was confirmed in 2014 that immigration status does not equate to race. A Tribunal claimant alleged that immigration status and nationality are intimately associated and that discrimination on the grounds of the former should be treated as discrimination on the grounds of the later – but the Court of Appeal rejected this argument.
Caste is not included in this definition. The Government launched a Consultation after a 2015 Tribunal case (see below) but the Government concluded in summer 2018 that caste should not be included within the protected characteristics, preferring for the courts to rely on emerging case law.
However, in September 2015 an employment tribunal ruled that a woman had been discriminated against because of her caste and awarded her £184,000 for unpaid wages (Permila Tirkey v Chandok) – the case had been dismissed at a previous tribunal and subsequently went to the Employment Appeal Tribunal in January 2015, where it was sent back to Tribunal for reconsideration. The EAT had held that ethnic origin included caste. Tirkey had been made to work 18 hour days, seven days a week, and paid just 11p per hour to be a domestic servant for the family in the UK.
EU nationals are protected against discrimination on grounds of nationality
In December 2020, the Court of Appeal confirmed that EU nationals who hold the right to reside in the UK cannot be excluded from claiming means-tested benefits. The case was brought by the Child Poverty Action Group (CPAG) on behalf of two Romanian nationals who had been granted ‘pre-settled’ status under the EU Settlement Scheme. One man was severely disabled, the other was his carer, and they had been refused Universal Credit. This decision was found to be discrimination the grounds of nationality. The Department for Work and Pensions intends to appeal against the ruling by the Court of Appeal and does not have to implement the judgement until 26th February 2021.
Religion and belief
In the Equality Act, religion includes any religion. It also includes a lack of religion, in other words employees or jobseekers are protected if they don’t follow a certain religion or have no religion at all.
A religion must have a clear structure and belief system. To be protected, a belief must satisfy various criteria, including that it is a weighty and substantial aspect of human life and behaviour, and must not just be an opinion or viewpoint based on the present state of information available.
Discrimination because of religion or belief can occur even where both the discriminator and recipient are of the same religion or belief.
Employers should, for example, support Muslim staff during Ramadan when they are prohibited from consuming food and drink between the hours of sunrise and sunset for approximately 30 days. As many Muslims will carry on working during Ramadan, Employers need to be aware that their energy and concentration levels may fall. Employers should ensure the working environment does not put those observing Ramadan at a disadvantage or they are treated less favourably than other employees.
In December 2013 the UK Supreme Court confirmed that Scientology is a religion and its services are an act of worship. The Supreme Court said that religion is an evolving concept and it’s no longer the case that the term religion should be confined to “religions which recognise a supreme deity”.
In March 2014 a Tribunal found that a belief in ‘democratic socialism’ constituted a philosophical belief (a belief based on a political philosophy). Other Tribunals have found the following beliefs capable of amounting to ‘philosophical beliefs’ – belief in the sanctity of life (anti fox-hunting); belief in the ‘higher purpose’ of public service broadcasting; a belief in spiritualism and life after death; belief in Scottish Independence. However, marxist/trotskyist political beliefs have been ruled to not constitute a philosophical belief. All of these decisions have been at Tribunal level only so are not binding, with the exception of the belief in spiritualism.
In 2018 the EAT held that a woman who would not sign a copyright agreement with her Employer because of her philosophical beliefs was not protected under discrimination law. In Ms A Gray v Mulberry Company Design Ltd, Ms Gray said she could not sign the copyright agreement clause she was required to, because of her belief in the “statutory human or moral right to own the copyright and moral rights of her own creative works and output”.
Ms Gray appealed to the Court of Appeal and in October 2019 they dismissed her appeal – they did not agree that a belief in relation to copyright was a philosophical belief; and Mulberry’s requirement for her to sign the copyright agreement did not put her or other individuals who may have the same belief at a disadvantage.
Gray worked in a team that had access to some of the company’s new fashion designs and was asked to sign an agreement containing clauses that would allow the company to own the copyright of works she created while employed by them. She refused to sign it, saying she was concerned the agreement would infringe on her activities away from work (she was a writer and filmmaker). Mulberry confirmed it had no interest in owning her personal work and amended the agreement to make that clear.
Gray was unhappy with this and although Gray and Mulberry continued to discuss this, it was not resolved and Gray was eventually dismissed (with notice). The original Tribunal dismissed her claim, as did the EAT, saying she had never said she had this philosophical belief during her employment.
In February 2019, an Employment Tribunal found that someone who expresses ‘non-PC’ views cannot claim this is a philosophical belief (Dr Dunn v University of Lincoln).
In September 2019 it was ruled by a Tribunal (in Conisbee v Crossley Farms Limited) that ‘vegetarianism’ is not a philosophical belief, it was seen as a lifestyle choice; however the judge said that veganism may be a philosophical belief.
In January 2020, a tribunal ruled that veganism is a philosophical belief in Casamitjana v The League Against Cruel Sports. Mr Casamitjana, an ethical vegan (which he said was different to ‘health’ vegans – Ethical veganism he said “at its heart lies a moral imperative, namely the recognition of non-human animals as sentient beings it is morally wrong to exploit or harm.”), informed his employer that it’s pension fund investments included companies that carried out animal testing (which was against his belief).
The company failed to do anything about it and he then told his colleagues; he was later dismissed for gross misconduct and said this was because he whistle-blew because of his philosophical belief. The tribunal agreed, and even though he had less than two years service, found his dismissal was because of his belief. This decision was made by the tribunal because veganism is more than an opinion, the employee centred his life around his belief. This goes against government guidance which says veganism should not be a philosophical belief.
A tribunal will now determine whether the League Against Cruel Sports fairly dismissed Mr Casamitjana because of his alleged gross misconduct. This is a ‘first instance’ decision, which means that it does not have to be followed by other tribunals. Also, whether a belief is protected will depend on the facts and whether the belief affects how the individual lives their life – other vegans might not have the same set of beliefs as Mr Casamitjana, and therefore their belief may not be a protected characteristic.
Some of these decisions have been at Tribunal level only so are not binding. There is little doubt that Brexit will be subject to this test in the future (whether from a leaver or a remainers’ point of view!).
Gender Critical Beliefs may be qualified for protection as a philosophical belief
In June 2021, the Employment Appeal Tribunal held that gender-critical beliefs (including the belief that sex is binary, immutable and not to be conflated with gender identity) did qualify for protection as a philosophical belief, in Maya Forstater v CGD EUrope and others. Ms Forstater had made remarks on social media about gender identity issues that some of her colleagues found offensive and complained about and her employment was not renewed. She said she had been discriminated against because of her belief. At the original Tribunal they felt the belief was not a philosophical belief, so Ms Forstater appealed, and the EAT found that the Tribunal was incorrect. The EAT said that although her beliefs may be offensive to some, and could be harassment of trans people in some circumstances, they did qualify as a philosophical belief.
In December 2021, in a case where neither the employee or employer were named (so called X v Y), a Manchester Employment Tribunal found that a fear of catching Covid was NOT a protected belief under the Equality Act. The female employee said she was discriminated against by her employer because she refused to go to work in July 2020 and subsequently wasn’t paid when she didn’t go to work; she said she had a ‘genuine fear’ of getting coronavirus and giving it to her partner, who was at high risk. The Judge accepted she had a genuine fear but this was not a criteria for a “philosophical belief” that would be protected under the Equality Act 2010.
Both men and women are protected under the Act. In July 2014, the Equality and Human Rights Commission clarified to employers and recruiters that drawing up single-gender shortlists is illegal.
In 2015, in the case of Van Heeswyk v One Call Insurance Services Ltd, the claimant won a sex discrimination case. The claimant requested parental leave to spend time with her ill daughter and her soldier husband when he returned from service in Afghanistan. The request was refused and shortly afterwards she was asked to attend a disciplinary hearing for ‘persistent absenteeism’ and ‘unsatisfactory standards or output of work’. She had an exemplary record and no previous warnings, and had taken absence while her daughter was in hospital. She was dismissed without notice for gross misconduct.
In October 2019, in Mrs J McBride v Capita Customer Management Ltd, an Employment Tribunal found that an employee was unfairly dismissed and suffered indirect sex discrimination after her employer tried to change her role from a part-time/job share role to a full-time one. MrBride started work in 1999 for a company that later transferred to Capita. She went on maternity leave in 2015 returning in April 2017. In September she submitted a statutory flexible working request, which was refused, but the next month she was told of a job share with another worker returning from maternity leave, which McBride accepted.
Because Capita Group were experiencing numerous problems, her Manager had to review the make-up of his team, and he felt that all roles within his team should be full-time to cover core business hours. In April 2018 McBride was informed of a restructure and that all new roles would be full-time. In June she was issued a redundancy notice as the only alternative employment available to her was on a full-time basis.
Her employment ended by redundancy in September and she brought claims of unfair dismissal and indirect sex discrimination. The Judge agreed with McBride and said that a reasonable employer would not make such an important decision as whether a role was effectively a full-time position on the basis of ‘impression and opinion unsupported by evidence’. He said: “We conclude a reasonable employer would have given the job share a fair trial period, respecting the detailed plans that the two senior job-sharing employees concerned had prepared”. Therefore, employers will need to have proper justification for not continuing a job-share, and listen to employees’ arguments against such a decision.
In April 2016, Acas launched a new guide to help employers and managers identify, tackle and prevent sex discrimination in the workplace. The new guidance, which you can see here, is aimed to help employers and managers get to grips with the laws around equality and to be aware of any behaviour that could be considered as sex discrimination.
In the summer of 2019, a workplace harassment legal advice line was launched by the actor Emma Watson, with advice being given by the charity Rights of Women. The advice line number is 0207 490 0152.
The Stalking Protection Act 2019
The Stalking Protection Act 2019, which came into force in March 2019 in England and Wales, is designed to tackle ‘stranger stalking’ (statistics says that the majority of stalking offences – whether the abuse is directed against women or men – take place in a domestic setting, however, it is believed that approximately 27% of stalking cases are committed by strangers).
The Act introduces Stalking Protection Orders (SPO’s) which the police can apply for, to prevent the stalker from continuing to abuse their victim (before any criminal prosecution takes place). A SPO can order the stalker to refrain from doing certain things – like visiting the victim’s place of work – or require them to take certain actions; a breach of an SPO can be a criminal offence carrying a prison sentence of up to five years.
If you have an employee who is a victim of stalking, employers should offer support as it is your duty to ensure the health, safety and welfare of your employees. If an employee tells you they need protection for a stalker who is under an SPO, the employer would be entitled to inform the people responsible for security at the work-place, that the stalker should not be allowed to enter the building. Privacy and confidentiality issues need to be considered. There is, however, no requirement under the Act for an employee who is subject to an SPO to tell their employer.
It will become a challenge for employers where the victim and the stalker both work for the same employer – and steps will need to be taken to ensure they do not work together or have contact with each other. In such cases, the employer may want to follow their own harassment policy. You can read further details here.
The Act protects bisexual, gay, heterosexual and lesbian individuals. Stonewall produce a series of good practice guides for employers containing practical ways to implement working practices to ensure an inclusive workplace for lesbian, gay and bisexual staff which you can see here.
In Otomewo v Carphone Warehouse 2012, an Employment Tribunal found that the actions of employees who took their manager’s iPhone, without his permission, and updated his Facebook status to read “Finally came out of the closet. I am gay and proud” was harassment on the grounds of sexual orientation (see below for details about harassment).
Even though the claimant was not gay, the Tribunal found he was harassed as the comments were displayed to friends and family in a public space, which embarrassed and distressed him. The Tribunal also found that the actions by the employees were done at work, during working hours, and so the Employer was liable for their actions.
Marriage and civil partnership
The Act protects employees who are married or in a civil partnership against discrimination. Single people are not protected.
Pregnancy and maternity
A woman is protected against discrimination on the grounds of pregnancy and maternity during the period of her pregnancy and any statutory maternity leave to which she is entitled up to six months after the birth or while still breastfeeding. During this period, pregnancy and maternity discrimination can’t be treated as sex discrimination. For example, an Agency can’t refuse to place a worker, or a hirer refuse to accept a worker, or terminate a worker’s placement because she is pregnant. If you’re an ‘Agency Worker’, please see our guide to the Agency Worker Regulations and what this will mean if you’re pregnant.
Women are covered against pregnancy and maternity discrimination whether they’re a job applicant, an employee, a worker or self-employed (and providing their service personally). The provisions cover all parts of the employment relationship including recruitment, promotion, training and redundancy selection. A dismissal that’s due to an employee’s pregnancy or maternity leave will be automatically unfair.
In March 2018, the EAT confirmed that an employer is only liable for a pregnancy-related dismissal if they know or believe that the employee is pregnant, at the time they make the decision to dismiss.
In Really Easy Car Credit Ltd v Thompson, the claimant was dismissed in her probationary period for performance and conduct reasons (‘failure to fit in’). The employer made this decision on 3rd August 2016 but didn’t tell Thompson until the 5th August (in a letter dated the 3rd), and on the 4th August the claimant told her employer she was pregnant.
The EAT, overturning the original ET decision, held that the decision to dismiss her wasn’t taken because of her pregnancy, therefore the dismissal decision wasn’t automatically unfair. This was because the employer didn’t know of the claimant’s pregnancy when it made the decision to dismiss
In a 2014 case (Lyons v DWP JobCentre Plus), the Employment Appeal Tribunal confirmed that a dismissal arising out of absences for post-natal depression after maternity leave had come to an end, wasn’t discrimination on pregnancy/maternity or sex grounds – this was because the unfavourable treatment didn’t occur during the ‘protected period’, and because there was no direct sex discrimination as the pregnancy-related illness extended beyond the period of maternity leave, meaning the employer was entitled to compare the period of sickness absence after maternity leave with a period of sickness of a man.
Employers must ensure that women on maternity leave are informed of any jobs that become available, including opportunities for promotion and transfer, and allow them to apply if they wish. Failure to do this may be unfavourable treatment and so discrimination.
In July 2016 in Nicholsdon v Hazel House Nursing Home Ltd, the employee who was pregnant asked her nursing home if she could switch shifts from the morning to the afternoon, which her employer agreed to do, but then reduced her shifts from five to three a week without consulting her. This meant she qualified for maternity allowance, but not SMP. She put in a grievance which was rejected. She then resigned and later put in an appeal against the grievance decision, but did not respond to the request for further information and the appeal was not held. The case went to the Employment Appeal Tribunal who said she had been constructively unfairly dismissed and the reduction in shifts constituted pregnancy discrimination.
In 2018, in Ms M Walworth v Scrivens Ltd, Ms Walworth was unfairly dismissed and discriminated against on the basis of pregnancy and maternity when her Employer tried to reclaim training costs during her maternity leave. Ms Walworth was an optician for Scrivens and signed a training agreement in 2010, which stated she must pay back her training costs if she left the company within 3 years of registering as a dispensing optician with the General Optical Council. She completed her training in December 2014 and went on maternity leave in April 2016.
Before she went on maternity leave, she was told that her period of post-qualification employment (for the purposes of the training fee repayment) would restart when she returned from maternity leave (i.e. the maternity leave would not be included in the period). In January 2017 Walworth contacted Scrivens to discuss her return to work and she asked about possible extended time off work (including holiday and sabbatical) as her new daughter had health problems. Scrivens said that an extension was not an option. Walworth was contacted again in February to remind her of her return date of 17th April and was told that should she resign now she would be due to repay £11,000 of her training costs.
Walworth resigned on 13th March saying her contract had been fundamentally broken and she had been mistreated because of her pregnancy. Scrivens formally demanded the £11,000 and withheld Walworth’s holiday pay for the last year of employment. At Tribunal, Walworth said that although she had taken Scriven’s word for it that there was a ‘pause’ clause in her contract, she realised there was no such thing when reviewing her employment paperwork. The Tribunal found the original agreement did not include such a clause that would pause employment for maternity leave; therefore it was unlawful discrimination on the grounds of pregnancy or maternity.
In 2021, in Shipp v City Sprint UK Ltd, a Tribunal found that a Marketing DIrector who was dismissed while on maternity leave because she refused to take a demotion with a £20,000 pay cut, was unfairly dismissed and discriminated against on maternity grounds.
When she initially told the company she was pregnant she was subjected to “offensive and humiliating” comments about contraception and pregnancy weight-gain. Later, while she was on maternity leave, the company was restructured, several executives were dismissed and a new Chief Executive was appointed, who excluded her from the restructuring exercise. Shipp found out from HR that she was at risk of redundancy and she was then offered a lower-level marketing role with a pay cut. Shipp refused this new job and was made redundant. The Tribunal found a “stark difference” in the way Shipp had been treated compared to her male colleagues.
Types of discrimination
The Equality Act 2010 introduced the concept that the alleged discrimination should be “because of” the protected characteristic (before the alleged discrimination had to be “on the grounds of” the protected characteristic).
A case that went to the Employment Appeals Tribunal in 2014 (about a pregnant police dog handler who had one of her police dogs removed from her during pregnancy) discussed this meaning and the change in the wording, which the government said in 2010 had not been intended to change the law in any way.
The Metropolitan Police argued that the new meaning was narrower and there had to be a direct causal connection between the pregnancy and the decision. The EAT said that the detriment (the actual discrimination) doesn’t have to be caused solely, or even mainly, by the discriminatory act; it was enough if it was a significant and material influence.
- Occurs when someone is treated less favourably than another person because of a protected characteristic
- Existed previously for all protected characteristics and no change in the new legislation
- In cases of Direct Discrimination the Court of Appeal confirmed in 2016 that it’s the motive of the actual person who made the decision that the claim is related to, not those that may have influenced the decision, that is important. (Canada Life CLFIS (UK) Ltd v Reynolds)
- Claimants of direct discrimination need to show they have been treated less favourably than an actual or hypothetical comparator
- In December 2020, the European Court of Justice ruled that direct and indirect disability discrimination could be established where the treatment of a disabled worker was ‘compared’ to the treatment of another disabled worker, and not just ‘compared’ to a non-disabled worker. The case in question is VL v Szpital Kliniezny im. Dra J. Babinskiego v Krakowie. This ruling is not binding on UK tribunals but may be seen as a ‘persuasive’ argument for UK tribunals.
- This is direct discrimination or harassment against someone because they associate with another person who possesses a protected characteristic (e.g. a mother of a disabled child; a heterosexual worker who socialises with gay friends; a non-Jewish employee with a Jewish partner, who is subjected to inappropriate workplace “banter” about Jews). It doesn’t currently apply to indirect discrimination; however in July 2015 the European Court of Justice confirmed that individuals can claim indirect discrimination by association in CHEZ Razpredelenie Bulgaria (in this case about the provision of services but it should apply equally to employment) – the original Race Directive protects not only people of a certain ethnicity from suffering less favourable treatment because of a discriminatory measure, but also those who aren’t of the same ethnic group who suffer alongside them
- Applies to race, religion or belief, sexual orientation, age, disability, gender reassignment and sex
- Doesn’t apply to marriage/civil partnerships or pregnancy/maternity
- In 2014 the Court of Appeal (in Hainsworth v Ministry of Defence) made it clear that the duty to make reasonable adjustments for disabled employees does not extend to employees who are associated with a disabled person
- In July 2015 in Truman v Bibby Distribution Ltd an employer who suddenly dismissed an employee who was performing satisfactorily was found to have committed associative disability discrimination.
- This is direct discrimination against an individual because others think they possess a particular protected characteristic. It applies even if the person doesn’t actually possess that characteristic
- Already applies to age, race, religion or belief, sexual orientation, disability, gender reassignment and sex
- Doesn’t apply to marriage/civil partnerships or pregnancy/maternity.
In July 2019, the Court of Appeal confirmed that making assumptions about someone’s medical condition can amount to direct discrimination by perception. In Chief Constable of Norfolk and Lisa Coffey, the employer had refused a job transfer request from Coffey because they believed her existing mild hearing loss condition fell “just outside the standards for recruitment, even though a medical adviser had recommended a hearing test, which Norfolk did not choose to do. Coffey was a police officer in the Wiltshire police force and had some hearing loss and tinnitus, but this did not affect her ability to do her job and wasn’t considered a disability (under the Equality Act).
Coffey was successful at the initial Employment Tribunal. Norfolk Constabulary appealed to the EAT, but were dismissed, before also being dismissed by the Court of Appeal.
The CoA referred to the Tribunal’s original finding that the Chief Constable of Norfolk believed that in the future Coffey would be unable to perform front-line duties and this made it clear that Norfolk believed that Coffey had a progressive condition under the Equality Act and had made “stereotypical assumptions’ about the effects of Coffey’s hearing loss.
- Indirect discrimination can occur when your Employer has a condition, rule, policy or practice in the company that applies to everyone but which particularly disadvantages people who share a protected characteristic. In October 2016, an Employment Tribunal ruled that Network Rail had committed indirect sex discrimination by not paying a male employee occupational Shared Parental Leave Pay when they paid female employees occupational Maternity Pay – you can read about this here
- Indirect discrimination can be justified if Employers can show they acted reasonably in managing their business. In September 2016 an Employment Tribunal found that Easyjet had committed indirect sex discrimination against two cabin crew by not providing adequate arrangements for them while they were breastfeeding. You can read more here
- In April 2017, in the combined cases of Essop and others v Home Office and Naeem v Secretary of State for Justice, the Supreme Court held that there is no requirement for a claimant to prove the reason why a PCP puts or would put a group with a protected characteristic at a particular disadvantage; and that there is no requirement that a PCP must put every member of that group at a disadvantage. The Employer must show that the PCP is objectively justified
- In June 2021 the Employment Appeal Tribunal ruled that a previous Tribunal had been incorrect in their decision about an indirect sex discrimination claim, as they had failed to recognise the ‘childcare disparity’ that faces many women. In Mrs G Dobson v North Cumbria Integrated Care NHS Foundation Trust, Gemma Dobson was a community nurse who had worked fixed days because of her childcare responsiblities for three children (two of whom were disabled), who was later sacked because she was unable to comply with the requirements of a new flexible working policy that required her to work flexible days and weekends. The original tribunal said that being a female with caring responsibilities was not protected under the Equality Act. But the EAT said this was wrong because “The Tribunal erred in not taking judicial notice of the fact that women, because of their childcare responsibilities, were less likely to be able to accommodate certain working patterns than men”. The EAT did not say whether Dobson had been indirectly discriminated against and the case will now go back to normal Tribunal
- Applies to age, race, religion or belief, sex, sexual orientation and marriage, civil partnership, disability and gender reassignment
- Doesn’t apply to pregnancy/maternity.
The concept of dual discrimination is introduced by the Act and was due to come into effect in March 2011, but was later postponed. This is where an individual, who believes that he or she has been treated less favourably because of a combination of two protected characteristics can bring a combined claim, but only for direct discrimination (and with the exception of the protected characteristics of marriage/civil partnership and pregnancy/maternity).
If this concept is re-examined we will update this accordingly.
- Harassment is “unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual”
- Harassment applies to all protected characteristics except for pregnancy and maternity and marriage and civil partnership
- Employees will now be able to complain of behaviour that they find offensive even if it’s not directed at them, and the complainant need not possess the relevant characteristic themselves (e.g. a white employee can be racially harassed where another white employee makes racist comments (about people from other races) in his/her presence where the conduct is unwanted or creates an intimidating/hostile/degrading/humiliating/offensive environment for him/her. See Mann v NSL Ltd where an ambulance assistant was fairly dismissed after using a racist term at work in front of white colleagues)
- Employees are also protected from harassment because of perception and association
- In 2015 a zero-hours contract worker, who feared reporting allegations of sexual harassment by her line manager in case she lost her job, was awarded £19,500 for sexual harassment (S v Britannia Hotels Ltd). The Tribunal was very critical of the employer’s investigation and their failure to follow up the worker’s complaints, the lack of any clear action against the alleged perpetrator and the long delay in completing the investigation
- In January 2020, The Equality and Human Rights Commission published new guidance for employers on tackling all types of harassment in the workplace. You can read the new guidance here
- In July 2021 an Employment Appeal Tribunal found that discriminatory harassment could lead to a successful constructive dismissal claim. In Driscoll v V & P Global Ltd, Ms Driscoll resigned because of harassment on the grounds of sex, race or disability and claimed constructive dismissal. The original ET struck out her constructive dismissal claim because of a previous EAT decision from 2015. The EAT in 2021 disagreed and said the previous case (Timothy James Consulting Ltd v Wilton 2015) was inconsistent with UK and European law
- Bullying, which is a broad term used to describe behaviour from a person or group that is unwanted or that creates a hostile environment for an individual, becomes harassment when this sort of behaviour relates to a protected characteristic. Bullying can include acts like excluding someone from meetings or group activities, shouting or swearing at someone, spreading rumours about someone, or inappropriate ‘banter’.
There are three types of sexual harassment at work – unwanted conduct of a sexual nature; sex-related harassment; being treated less favourably by the harasser:
- Unwanted Conduct of a sexual nature – which has the purpose or effect of violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment (e.g. sexually explicit jokes by e-mail; pictures of naked woman; inappropriate touching or comments; sexual innuendos; persistent requests for ‘dates’)
- Sex-Related Harassment – where the conduct has the purpose or effect of violating someone’s dignity or creating an unpleasant environment (e.g. gossip about the paternity of an unborn child; comments about childcare arrangements)
- Where an employee rejects sexual advances (or submits to them) and is then treated less favourably by the harasser.
Third Party harassment
This concept was in the original 2010 legislation but was repealed by the Government on 1st October 2013. This concept made Employers potentially liable for harassment of their employees by third parties who are not employees of the company e.g. customers or clients; and also made Employers liable for acts of harassment by their employees, even outside of normal working hours.
You can read more about this here with additional information about the still existing Protection From Harassment Act 1997, which provides that an employer can be vicariously liable for harm caused by an employee if they harass a colleague.
- Victimisation occurs when an employee is treated badly because they’ve made or supported a complaint or raised a grievance under the Equality Act; or because they’re suspected of doing so
- An employee is not protected from victimisation if they’ve maliciously made or supported an untrue complaint
- There’s no longer a need to compare treatment of a complainant with that of a person who hasn’t made or supported a complaint under the Act Exists for all Protected Characteristics and recent court cases have confirmed this applies to ex-employees too.
The Equality Act allows Employers to take positive action if they ‘reasonably believe’ that employees or job applicants who have a particular protected characteristic suffer a disadvantage connected to that characteristic, or if their participation in an activity is disproportionately low or they are under-represented in the workplace.
From 6th April 2011, a further part of the Act is implemented that is aimed at improving diversity when recruiting and promoting candidates and means that Employers can give such a person ‘more favourable treatment in relation to recruitment’ than someone without that characteristic as long as the action is proportionate and doesn’t contravene, in a direct or indirect way, any other part of the Equality Act. This extension to the Act of positive action in recruitment is entirely voluntary for Employers and is not a legal requirement.
Pre-employment health-related checks
The new Equality Act limits the circumstances when Employers (or Agencies) can ask health-related questions (of the applicant or in a reference request letter) before they offer an individual a job.
Now, before a job offer, Employers can only ask health-related questions that help them:
- Decide whether they need to make any reasonable adjustments, for the person, during the selection process
- Decide whether an applicant can carry out a function that is essential (‘intrinsic’) to the job
- Monitor diversity among people making applications for jobs
- Take positive action to help disabled people assure themselves that a candidate has the disability where the job genuinely requires the jobholder to have a disability.
Once a person has passed the interview and has been offered a job then it is permitted for Employers to ask appropriate health-related questions.
The Equality Act retains the previous framework that was in place for Equal Pay. This means that in most circumstances a challenge to pay inequality and other contractual terms and conditions still has to be made by comparison with a real person of the opposite sex in the same employment (doing “like” work, “work-related as equivalent” [under a job evaluation scheme] or “work of an equal value” to an employee of the opposite sex employed by the same employer or possibly an associated employer).
However, a change in the Equality Act allows a claim of direct pay discrimination to be made, where no real person comparator can be found. This means that a claimant who can show evidence that they would’ve received better remuneration from their employer if they were of a different sex may have a claim, even if there is no-one of the opposite sex doing equal work in the organisation. This would be a claim under sex discrimination.
In 2012, a landmark Equal Pay case delivered the verdict that workers now have six years (five years in Scotland) to make an equal pay claim in the High Court (rather than six months to an Employment Tribunal).
A ruling by the Supreme Court at the end of June 2013 has effectively handed women the legal right to demand the same pay as male colleagues doing a different job of ‘equal value’.
In October 2018 an on-going Equal Pay row (from 2016) for Asda’s shop floor workers went to the Court of Appeal. An Employment Tribunal and Employment Appeal Tribunal have already ruled that shop floor workers should be able to compare themselves to higher paid colleagues in the supermarket’s distribution centre as their work is of equal value. The majority of shop floor workers are female.
Asda appealed these two previous rulings. In February 2019, the Court of Appeal upheld the previous Court’s judgements, which opens the way to allow the workers to bring pay discrimination claims against the supermarket. Asda, of course, took an appeal to the Supreme Court and at the end of March 2021 the Supreme Court agreed with the previous rulings, and said that shop floor workers could be compared with workers in the distribution centre for the purpose of an equal pay claim.
The employees will now have to go back to Tribunal to prove that their retail work is of ‘equal value’ to those working in the distribution centre. If they achieve this they will then need the Tribunal to consider if there were reasons other than gender behind the pay disparity! This battle will go on for many years yet, as Asda have said they will continue to defend the claims as it believes that the shop floor workers and the distribution centre workers have different skill sets. There are similar ongoing cases against Sainsbury’s, Tescos, Next and Morrisons.
Basically, if you are an employee or worker who is paid less than someone of the opposite sex doing “like” (similar) work, equivalent work (same grade/band) or work of equal value (the job has equivalent demands) then you are covered by this Act. If you make a successful Equal Pay claim, you can recover back pay (the difference between what you receive and the ‘comparator’ received, for up to six years) and you’ll be entitled to receive the new pay in the future. “Equal Pay” includes basic pay, overtime rates, bonuses, commission, allowances, redundancy pay, notice pay, benefits, pension entitlements, performance targets, holiday entitlement, overtime availability.
The Act also carries provisions to introduce compulsory pay audits for Employers in the private and third-sector with more than 250 employers and at the end of March 2015 it was announced this will be introduced within a year. You can read about the Mandatory Gender Pay Gap reporting here.
In June 2021, the European Court of Justice (ECJ) confirmed that Tesco shop workers can rely directly on EU law in order to compare themselves with distribution centre workers for the purposes of their equal pay claim (K and others v Tesco Stores Ltd), rather than rely on the UK Equality Act, as EU law allows a comparison to be made between employees if there is a “single sources” that is responsible for setting their pay (which is very different to comparisons allowed under the Equality Act). The case had been referred to the ECJ by the Employment Tribunal in the UK hearing the case. This decision may make it much easier for equal pay claimants in the UK to compare themselves with other employees in the same company who work in different jobs and in different locations. However, this decision was made after the UK left the European Union and UK courts are now generally not bound to follow new ECJ decisions, but can do so at their discretion... so we wait to see what happens next!
The Act makes it unlawful for an Employer to prevent or restrict their employees from having a discussion to establish if differences in pay exist that are related to protected characteristics and outlaws pay secrecy clauses in contracts of employment.
An employer can require their employees to keep pay rates confidential from some people outside the workplace, such as a competitor organisation.
Mandatory Ethnicity Pay Reporting Consultation
In October 2018 the Government started a consultation asking Employers to contribute their views on mandatory ethnicity pay reporting. The options that are proposed are:
- On pay gap figure comparing average hourly earnings of ethnic minority employees as a percentage of white employees, or
- Several pay gap figures for different ethnic groups, or
- Ethnicity pay information by £20,000 pay bands, or
- Ethnicity pay information by pay quartile.
The Consultation also asks what employers should be expected to publish this data – all employers, those with 50+ employees, those with 250+ employees, those with 500+ employees, or another threshold. The Consultation closes on 11th January 2019 so we’ll see what happens next!
Disability Pay Gap Reporting may be next!
At the end of November 2018, the government launched a voluntary framework for Employers to record their disabled work-force, in what was seen as a move towards mandatory disability pay gap reporting in the future. The Government has urged Employers to report on the numbers of disabled people they employ and what steps they are taking to help recruit and retain disabled people. You can see the voluntary guidance here.
Your Employer must, by law, have an Equal Opportunities policy.
There is specific legislation in Northern Ireland that amends the Race Relations Act by identifying the Irish Traveller community as a racial community and makes it unlawful to discriminate against someone on the grounds of religious belief or political opinion. They cover direct and indirect discrimination and victimisation.
The Equal Opportunities Commission, the Disability Rights Commission and the Commission for Racial Equality were merged in October 2007 to form a single equality body called the Commission for Equality and Human Rights. It offers various publications and advice to explain the above in more detail.
If you’d like to learn more about equality at work and the scope of the Equality Act, you can check out a range of other articles we’ve compiled on the subject, including:
If you’re an employer and need ongoing professional help with any staff/freelance issues, talk to us at The HR Kiosk – a Human Resources Consultancy for small businesses. You can retain us for as much time as you need.
Please note that the advice given on this website and by our advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It also can’t be seen as specific advice for individual cases. Please also note there are differences in legislation in Northern Ireland.