Introduction to Discrimination Law

The law outlaws discrimination on a number of grounds. There are currently a number of Acts of Parliament which deal with discrimination on different grounds. A single Act encompassing all the current legislation on discrimination is envisaged to be passed in the future.

However, until such a law is enacted we are left with a number of Acts of Parliament, each of which deals with a particular aspect of discrimination.

Current Discrimination Law

The following Acts currently outlaw discrimination on the following grounds:

  • The Sex Discrimination Act 1975 and Equal Pay Act 1970 outlaws discrimination on the grounds of Sex, Marriage, and gender reassignment.
  • The Sexual Orientation Regulations 2003 outlaws discrimination on the grounds of sexual orientation. Sexual orientation is defined in regulation 2(1): ‘a sexual orientation towards persons of the same sex; persons of the opposite sex; or persons of the same sex and of the opposite sex’. The regulations do not deal with specific forms of sexual practice or conduct.
  • The Race Relations Act 1976 outlaws discrimination on racial grounds. Racial grounds are defined as colour, race, nationality, ethnic or national origins. The Commission for Racial Equality can provide further advice on how to respond when faced with this kind of discrimination.
  • The Disability Discrimination Act 1995 deals with discrimination against disabled people.
  • Religion or Belief Regulations 2003 protects people from discrimination due to their religion or belief. Religion or belief is defined as ‘any religion, religious belief, or similar philosophical belief’.
  • The Part-time Workers Regulations 2000. Regulation 5(1): ‘A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker….’
  • The Employment Act 2002 and the Fixed-term Employees Regulations 2002 attempts to protect employees on fixed term contracts from suffering inferior treatment to those who are on permanent contracts.
  • The Trade Union and Labour Relations (Consolidation) Act 1992) [ss 137, 146 and 152-3] deals with discrimination related to trade union membership or activity or non-membership.
  • The Employment Equality (Age) Regulations 2006 give effect to the EU Equal Treatment Framework Directive (2000/78) as regards age.
  • The Protection from Harassment Act 1997 is a general piece of legislation which protects people against harassment, whatever the grounds.

Discrimination law operates on two fronts:

  • strategic level – a standing Equality and Human Rights Commission (EHRC) is responsible under the Equality Act 2006 s1 for overseeing the legislation, recommending improvement, investigating discriminatory practices, assisting individuals and generally working towards equality of opportunity.
  • individual level – a worker can complain if he or she feels that they are the subject of unlawful discrimination.

Exceptions

There are very few. In the employment field, where this legislation is significant, for example there are no hours of work or length of employment qualifications needed before a claimant can use the legislation. However, discrimination can be lawful if sex, race, religion etc is a genuine occupational qualification or requirement. These provisions are quite specific and vary according to the particular ground. They tend to be interpreted narrowly by the courts.

The influence of European Union law

General influence

Member States of the European Union must give effect to EU law and they must also interpret their own law in the light of EU law. EU law has precedence over laws of the Member States. Directives from the EU are an important means of applying EU law in the Member States. A directive requires Member States to enact their own legislation to give effect to EU law within a prescribed timescale.

Where a Member State has not fully implemented European Union law it should be possible to rely directly on EU treaty articles and directives if they are clear, unconditional and do not require the Member State to do anything further to implement them. Under such circumstances, EU measures can be enforced against public sector employers. In the private sector the complainant will have a cause of action against the state itself for not implementing European Union law.

Influence upon discrimination law

UK law relating to sex discrimination has been influenced by a number of EU developments including:

  • Equal Pay Directive 1975 (75/117)
  • Equal Treatment Directive 1976 (76/207, as amended by 2002/73) Moreover, the principle of equal pay is enshrined in the Treaty of Rome itself (article 141). There has also been a flow of significant cases from the ECJ. Seven EU sex equality directives have been combined into one, 2006/54, for implementation by member states by 15 August 2008.
  • The EU’s race directive of 2000 (2000/43)has principle of equal treatment irrespective of race or ethnic origin is found in it. A general framework directive (2000/78) aims to eliminate inequalities based on religion, belief, disability, age and sexual orientation

Forms of discrimination

Discrimination can take one of three forms. It may be direct, indirect, or it may be victimisation.

Direct discrimination

The following conditions could constitute direct discrimination:

  • Less favourable treatment
  • Than comparator received or would receive
  • In similar circumstances
  • On one or more of the prohibited grounds

This is where someone is treated less favourably than a person of a different sex, race, religion etc was treated or would have been treated. A comparison is required and the circumstances of the claimant and the comparator should be similar.

Indirect discrimination

This is where people are treated the same but where there is a disproportionate impact on a particular sex, race, religion etc. The precise formulation is as follows:

  • The discriminator applies a ‘provision, criterion or practice’ (henceforth ‘provision’) to the claimant which he applies or would apply equally to others of a different sex, race, religion etc.
  • The provision puts (or would put) persons of the same sex, race, religion etc as the claimant ‘at a particular disadvantage’ when compared with others.
  • It puts the claimant at that disadvantage.
  • The discriminator cannot show the provision to be a proportionate means of achieving a legitimate aim.

Victimisation

This is where the claimant has been subjected to less favourable treatment because they used the legislation or for related matters. The grounds of victimisation are clearly defined – this is not an open category to be used simply because the claimant is aggrieved. In St Helen’s Borough Council v Derbyshire the HL ruled that putting unreasonable pressure on an employee to settle or withdraw a discrimination claim could be victimisation.

Summary of Discrimination Law

  • Discrimination is prohibited on a number of grounds including sex, race, religion or belief, sexual orientation, age and disability
  • Legal action under discrimination law can be sustained only if the alleged discrimination is on one or more of the prohibited grounds.
  • The legislation makes it unlawful to discriminate or harass, on a prohibited ground, before, during, and after employment
  • Discrimination and harassment are defined in the statutes.

A successful claimant will need to establish:

  • the employer’s act or omission, specified in the legislation, that forms the basis of their complaint; and
  • that this act or omission constituted discrimination or harassment as defined.